F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2020-2021) – fifa.com – atto non ufficiale – Decision 2 July 2020
Decision of the
Dispute Resolution Chamber
passed on 2 July 2020,
regarding an employment-related dispute concerning the player Pierre Vareze Zang
Ngayene
COMPOSITION:
Clifford J. Hendel (USA/France), Deputy Chairman
Michele Colucci (Italy), member
Todd Durbin (USA), member
CLAIMANT:
Pierre Vareze Zang Ngayene, Cameroon
Represented by Mr Daniel Bassega Ngoueha
RESPONDENT:
Club Express SC, Uganda
I. FACTS
1. On 28 May 2019, the Cameroonian player, Pierre Vareze Zang Ngayene (hereinafter: player or
Claimant) and the Ugandan club, Express SC (hereinafter: club or Respondent) signed an
employment contract valid as from 28 May 2019 until 28 May 2021.
2. According to the information available in the Transfer Matching System (TMS), the Claimant was
entitled to receive a sign-on fee of Ugandan Shillings (UGX) 5,000,000 by 25 July 2019 as well
as an annual salary of UGX 9,000,000 payable in twelve equal instalments of UGX 750,000 by
the 25th of each month. Furthermore, the club put at disposal of the player “240,000”as means
of transportation for club trainings sessions attended.
3. Art. 11 of the employment contract stipulates that “Any dispute between the club and the player
regarding this employment contract shall be submitted to FUFA dispute resolution chamber of
equal representation of both parties under the conditions mentioned on the FUFA Regulations
on the status and transfer of players or CAS. Such decisions are final”.
4. According to the Claimant, he never received a copy of the employment contract. Moreover, still
according to the Claimant, as of September 2019, the Respondent no longer allowed in the
team and he did not receive any further salary.
5. On 31 December 2009, the Claimant lodged a claim against the Respondent for breach of
contract. He requested the following:
UGX 43,010,000 corresponding to:
UGX 17,250,000 for 23 monthly salaries of UGX 750,000 each (residual value of the
contract);
UGX 5,760,000 for 24 months as transportation allowance of UGX 240,000 each;
UGX 20,000,000 as compensation for “damages suffered by the player”.
USD 357 as reimbursement of flight ticket to go back to Cameroon.
6. The Claimant held that despite having sent some default notices on 15
September and 9 October 2019, the Respondent did not comply with its financial and
sporting obligations. Furthermore, the Claimant alleged that on 22 October 2019, the
Respondent tried to make him sign a termination agreement, which he refused to sign.
7. Moreover, the Claimant referred to a letter received from the Cameroon Football Association in
reply to his request asking for clarifications as to the deliverance of his International Transfer
Certificate (ITC) to the Federation of Uganda Football Associations (FUFA). In this regard, the
Claimant was of the opinion that, since the ITC formalities were duly completed between both
federations, this meant that the Respondent was in possession of his employment contract.
8. The Claimant maintained that, due to the aforementioned circumstances and his impossibility to
further provide for his living costs in Uganda, he had to purchase a flight ticket to fly back
home on 12 November 2019. Therefore, the Claimant deemed that the Respondent unilaterally
terminated the contract without just cause.
9. In its reply to the claim, the Respondent challenged the competence of the Dispute Resolution
Chamber to deal with this matter, referring to art. 11 of the employment contract. Indeed, the
Respondent stated that the FUFA Dispute Resolution Chamber was competent. Consequently,
the Respondent requested the present matter to be sent “back to the Uganda FA to handle and
resolve the contractual dispute between [the parties]”.
10. In its reply to the claim as to the substance, the Respondent sustained that after signing the
contract the Claimant went back to Cameroon and showed up at the Respondent’s premises
only on 15 July 2019 without having kept the Respondent informed of this absence.
11. In addition, having already found a replacement due to the imminent closing of the local transfer
window, the Respondent offered the Claimant to mutually terminate the contract, which the
latter refused.
12. Finally, the Respondent held that the Claimant failed to fulfil the requirements as to the local
work permit, which led to the consequence that he was not allowed to play football in Uganda.
13. In an unsolicited correspondence, the Claimant provided the aforementioned letter from the
Cameroon Football Association, by means of which it confirmed that it had duly remitted his ITC
in order for the player to be registered with the Respondent.
14. Upon being asked by FIFA to clarify his contractual situation after termination, FIFA also sent the
player of his contract with the club for his complete information. In this regard, the Claimant
requested to amend his initial claim considering the sign-on fee contractually provided and
amounting to UGX 500,000,000 the existence of which he was not fully aware. Consequently,
upon request of the DRC on 20 May 2020, the case was sent back to the FIFA administration in
order to ask the Respondent to provide FIFA with its comments on the amended claim. In this
respect, the Respondent explained that said “sign-on fee” is actually a “contracting fee” which
had been agreed with the Claimant’s intermediary to be payable upon the condition that “the
party presenting work permit that clears them to work/operate within the Ugandan Boundaries
which the party never fulfilled as earlier reported in our earlier submission”.
15. The Claimant informed FIFA that, following the termination of his contract with the Respondent
he had remained unemployed.
II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
16. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC)
analysed whether it was competent to deal with the matter at hand. In this respect, it took note
that the present matter was submitted to FIFA on 31 December 2019. Consequently, the Rules
governing the procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(edition 2019; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 of
the Procedural Rules).
17. Subsequently, the Chamber referred to art. 3 par. 1 of the Procedural Rules and confirmed that
in accordance with art. 24 par. 1 and 2 in combination with art. 22 lit. b) of the Regulations on
the Status and Transfer of Players (edition June 2020) the Dispute Resolution Chamber would, in principle, be competent to deal with the matter at stake, which concerns an employmentrelated
dispute with an international dimension between a Cameroonian player and a Ugandan
club.
18. This being said, the Chamber acknowledged that the Respondent contested the competence of
FIFA’s deciding bodies on the basis of art. 11 of the employment contract, which reads as
follows: “Any dispute between the club and the player regarding this employment contract shall
be submitted to FUFA dispute resolution chamber of equal representation of both parties under
the conditions mentioned on the FUFA Regulations on the status and transfer of players or CAS.
Such decisions are final”. The Respondent thus held that the FUFA Dispute Resolution Chamber
would be competent to adjudicate the present matter.
19. With respect to the aforementioned challenge of its competence, the Chamber emphasised that
in accordance with art. 22 lit. b) of the June 2020 edition of the Regulations on the Status and
Transfer of Players, it is competent to deal with a matter such as the one at hand, unless the
parties have explicitly opted in writing for such disputes to be decided by an independent
arbitration tribunal that has been established at national level within the framework of the
association and/or a collective bargaining agreement. Any such arbitration clause must be
included either directly in the contract or in a collective bargaining agreement applicable on the
parties. The independent national arbitration tribunal must guarantee fair proceedings and
respect the principle of equal representation of players and clubs. With regard to the standards
to be imposed on an independent arbitration tribunal guaranteeing fair proceedings and
respecting the principle of equal representation, the Chamber referred to the FIFA Circular no.
1010 dated 20 December 2005. Equally, the Chamber referred to the principles contained in
the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations, which came into
force on 1 January 2008.
20. With this in mind, the Chamber noted that the Respondent had not provided the respective
documentation, such as the FUFA Regulations on the Status and Transfer of Players. Therefore,
the Chamber was not in a position to establish whether the FUFA Dispute Resolution Chamber
meets the requirements of being an independent arbitration tribunal guaranteeing fair
proceedings and respecting the principle of equal representation.
21. Furthermore, the Chamber noted that art. 11 of the employment contract mentions that “such
decisions [of the FUFA Dispute Resolution Chamber] are final”. Assuming this would be true,
which, once again, the Chamber was not able to verify due to a lack of evidence as to the
functioning of the FIFA Dispute Resolution Chamber, such rule would go against the
requirements mentioned in the FIFA Circular no. 1010 and the FIFA NDRC Standard Regulations.
Indeed, one of the parties’ fundamental rights in order to ensure fair proceedings is the right of
the parties to appeal the decision of the respective NDRC.
22. In view of the above, the Chamber unanimously decided that it must reject the Respondent’s
challenge of its competence. Therefore, the Chamber is competent to adjudicate the present
matter and the claim is admissible.
23. Subsequently, the Chamber analysed which edition of the Regulations on the Status and Transfer
of Players should be applicable as to the substance of the matter. In this respect, the Chamber
referred, on the one hand, to art. 26 par. 1 and 2 of the Regulations on the Status and Transfer
of Players (edition June 2020) and, on the other hand, to the fact that the present claim was
lodged on 31 December 2019. The Dispute Resolution Chamber concluded that the October 2019 edition of the Regulations on the Status and Transfer of Players (hereinafter: the
Regulations) is applicable to the matter at hand as to the substance.
24. The competence of the Chamber and the applicable regulations having been established, and
entering into the substance of the matter, the Chamber started by acknowledging the abovementioned
facts as well as the documentation contained in the file. However, the Chamber
emphasised that in the following considerations it will refer only to the facts, arguments and
documentary evidence which it considered pertinent for the assessment of the matter at hand.
In particular, the Chamber recalled that in accordance with art. 6 par. 3 of Annexe 3 of the
Regulations, FIFA may use, within the scope of proceedings pertaining to the application of the
Regulations, any documentation or evidence generated or contained in the TMS.
25. The Chamber first acknowledged that the parties had concluded an employment contract valid
as from 28 May 2019 until 28 May 2021; however, the Chamber immediately noted that the
Claimant had not been in possession of a copy of the employment contract. Notwithstanding,
the Respondent had not actually contested that such contract had been signed. The Claimant,
not being aware of the contents of the employment contract, had submitted various proof of
his employment with the Respondent, such as proof of payment of his salary of August 2019
and a confirmation from the Cameroon Football Association that his ITC had indeed been issued
to FUFA.
26. In any case, the Chamber underlined that, within its investigatory powers, it is able to verify the
existence of an employment contract in TMS. In the matter at hand, the Claimant’s employment
contract was indeed uploaded into TMS and therefore there is no doubt as to the existence of
an employment relationship between the parties, nor as to the terms of such employment.
27. This having been established, the Chamber noted that the parties’ recollection of the facts
leading up to the dispute diverge quite substantially. Indeed, according to the Claimant, starting
in September 2019, he was not allowed to join the team anymore. During the month of October
2019, the Claimant sent the Respondent two default notice letters asking the Respondent to
honour its financial and sporting obligations towards him, to no avail. Thereafter, the
Respondent extended a termination agreement to him, which he refused to sign. Ultimately, the
Claimant was left with no choice than to leave Uganda and return to his home country of
Cameroon on 12 November 2019. In light of these alleged circumstances, the Claimant deems
that the Respondent terminated the contract without just cause.
28. The Respondent, for its part, alleged that the Claimant only showed up at the club’s premises
on 15 July 2019 and that in light of his absence, they had to seek for a replacement, since the
transfer window was about to close. Since they found a replacement, they offered the Claimant
to mutually terminate their employment relationship but the latter refused. Furthermore, the
Respondent held that the Claimant failed to fulfil the requirements as to the local work permit,
which led to the consequence that he was not allowed to play football in Uganda.
29. The Chamber thus highlighted that the underlying issue in this dispute, considering the
conflicting position of the parties, was to determine as to whether the employment contract had
been unilaterally terminated with or without just cause and which party was responsible for the
early termination of the contractual relationship in question. The Chamber also underlined that,
subsequently, if it were found that the employment contract was terminated without just cause,
it would be necessary to determine the consequences for the party that was responsible for the
early termination of the contractual relation.
30. The Chamber first noted that no formal termination of the contract had occurred. Considering
the facts as reported by both parties, however, the Chamber determined that both parties agree
on the fact that the Respondent had presented a termination agreement to the Claimant, which
the latter refused to sign. In light of this fact, the Chamber concluded that, by offering a
termination agreement to the player, the club clearly showed to the player that it did not intend
to continue the employment relationship. Consequently, it can be established that the
Respondent de facto terminated the employment contract binding the parties on 22 October
2019, when it offered the Claimant to terminate the contract.
31. With respect to such unilateral termination on the Claimant’s part and as to whether the
Claimant had a just cause to terminate the employment contract, the Chamber referred to the
principle of burden of proof mentioned in art. 12 par. 3 of the Procedural Rules, according to
which a principle claiming a right on the basis of an alleged fact shall carry the respective burden
of proof. In this context, the Chamber underlined that the Respondent did not provide any
evidence as to the alleged breach imputable to the Claimant regarding his
unexplained/unjustified absence.
32. In addition, the Respondent refers to unfulfilled administrative tasks related to the work permit
of the Claimant which, in accordance with art. 18 par. 4 of the Regulations and the respective
jurisprudence of this Chamber, are of the sole responsibility of the Respondent.
33. Finally, the Respondent failed to provide proof of payment related to the salaries claimed in the
Claimant’s default notice letters.
34. In light of the aforementioned, the Chamber concluded that the Respondent terminated the
contract de facto and without just cause on 22 October 2019 by presenting him a termination
agreement, which the Claimant refused to sign.
35. Having established that the Respondent is to be held liable for the early termination of the
employment contract without just cause, the Chamber focused its attention on the
consequences of such termination. Taking into consideration art. 17 par. 1 of the Regulations,
the Chamber decided that the Claimant is entitled to receive an amount of money from the
Respondent as compensation for the termination of the contract with just cause in addition to
any outstanding payments on the basis of the relevant employment contract.
36. At this point, the Chamber reverted to the Claimant’s claim regarding outstanding
remuneration. The Claimant claimed that the Respondent had not paid him the salaries of June,
July, September and October 2019 in the total amount of UGX 3,000,000, as well as UGX
1,200,000 as monthly transportation allowances for the months of June to October 2019 and
finally UGX 5,000,000 as sign-on fee.
37. With respect to the salaries and transportation costs, the Chamber reiterated that the
Respondent had not provided any proof as to the payment of these amounts nor any valid
justification as to the non-payment.
38. As to the sign-on fee in the amount of UGX 5,000,000, the Chamber took note of the
Respondent’s argument, i.e. that the “sign-on fee” is actually a “contracting fee” which had
been agreed with the Claimant’s intermediary to be payable upon the condition that “the party presenting work permit that clears them to work/operate within the Ugandan Boundaries which
the party never fulfilled as earlier reported in our earlier submission”. In this regard, the Chamber
emphasised that the Respondent had not provided any proof in support of such allegation.
Furthermore, the employment contract explicitly states that such amount is a sign-on fee.
Therefore, the Chamber determined that the amount of UGX 5,000,000 is also due.
39. In view of the above and in accordance with the principle of pacta sunt servanda, the Chamber
decided that the Respondent must pay the total amount of UGX 9,200,000 as outstanding
remuneration.
40. In continuation, the Chamber focused its attention on the calculation of the amount of
compensation for breach of contract in the case at stake. In doing so, the firstly recapitulated
that, in accordance with art. 17 par. 1 of the Regulations, the amount of compensation shall be
calculated, in particular and unless otherwise provided for in the contract at the basis of the
dispute, with due consideration for the law of the country concerned, the specificity of sport
and further objective criteria, including, in particular, the remuneration and other benefits due
to the Claimant under the existing contract and/or the new contract, the time remaining on the
existing contract up to a maximum of five years, and depending on whether the contractual
breach falls within the protected period.
41. In application of the relevant provision, the Chamber held that it first of all had to clarify as to
whether the pertinent employment contract contains a provision by means of which the parties
had beforehand agreed upon an amount of compensation payable by the contractual parties in
the event of breach of contract. In this regard, the Chamber established that no such
compensation clause was included in the employment contract at the basis of the matter at
stake.
42. As a consequence, the members of the Chamber determined that the amount of compensation
payable by the Respondent to the Claimant had to be assessed in application of the other
parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that said provision
provides for a non-exhaustive enumeration of criteria to be taken into consideration when
calculating the amount of compensation payable. Therefore, other objective criteria may be
taken into account at the discretion of the deciding body.
43. The members of the Chamber then turned their attention to the remuneration and other benefits
due to the Claimant under the existing contract and/or the new contract, which criterion was
considered by the Chamber to be essential. The members of the Chamber deemed it important
to emphasise that the wording of art. 17 par. 1 of the Regulations allows the Chamber to take
into account both the existing contract and the new contract in the calculation of the amount
of compensation.
44. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies
payable to the player under the terms of the employment contract as from its date of termination
without just cause by the Respondent, i.e. 22 October 2019, until 28 May 2021 and concluded
that the Claimant would have received in total UGX 18,810,000 (UGX 14,250,000 as 19 monthly
salaries and UGX 4,560,000 as 19 monthly transportation allowances) as remuneration had the
employment contract been executed until its expiry date. Consequently, the Chamber concluded
that the amount of UGX 18,810,000 serves as the basis for the final determination of the
amount of compensation for breach of contract in the case at hand.
45. In continuation, the Chamber verified as to whether the Claimant had signed an employment
contract with another club during the relevant period of time, by means of which he would have
been enabled to reduce his loss of income. According to the constant practice of the DRC, such
remuneration under a new employment contract shall be taken into account in the calculation
of the amount of compensation for breach of contract in connection with the player’s general
obligation to mitigate his damages.
46. The Chamber recalled that the Claimant had remained unemployed after the premature
termination of the employment contract and, thus, the Claimant was not able to mitigate his
damages.
47. Consequently, on account of all of the above-mentioned considerations and the specificities of
the case at hand, the Respondent must pay the amount of UGX 18,810,000 as compensation
for breach of contract in the case at hand.
48. Furthermore and in accordance with the standard practice of the Chamber, the Claimant is
awarded the price of one flight ticket in the amount of USD 357.
49. With respect to the amount of UGX 20,000,000 claimed as compensation for
“damages suffered by the player”, the Chamber decided to reject such claim due to a lack of
evidence of any further damages suffered and lack of contractual basis.
50. In conclusion, the Chamber decided to partially accept the Claimant’s claim. Any further claims
of the Claimant are rejected.
51. Furthermore, taking into account the consideration under number II./3. above, the Chamber
referred to par. 1 and 2 of art. 24bis of the Regulations, which stipulate that, with its decision,
the pertinent FIFA deciding body shall also rule on the consequences deriving from the failure of
the concerned party to pay the relevant amounts of outstanding remuneration and/or
compensation in due time.
52. In this regard, the Chamber established that, in virtue of the aforementioned provision, it has
competence to impose a sanction on the club. In particular, the sanction against clubs shall
consist in a ban from registering any new players, either nationally or internationally, up until
the due amount is paid and for the maximum duration of three entire and consecutive
registration periods.
53. Therefore, bearing in mind the above, the Chamber decided that in the event that the Club does
not pay the amount due to the player within 45 days as from the moment in which the player,
following the notification of the present decision, communicates the relevant bank details to the
club, a ban from registering any new players, either nationally or internationally, for the
maximum duration of three entire and consecutive registration periods shall become effective
on the club in accordance with art. 24bis par. 2 and 4 of the Regulations.
54. The Chamber recalled that the above-mentioned sanction will be lifted immediately and prior to
its complete serving upon payment of the due amounts, in accordance with art. 24bis par. 3 of
the Regulations.
III. DECISION OF THE DISPUTE RESOLUTION CHAMBER
1. The claim of the Claimant, Pierre Vareze Zang Ngayene, is admissible.
2. The claim of the Claimant is partially accepted.
3. The Respondent, Club Express SC, has to pay to the Claimant, UGX 9,200,000 as outstanding
remuneration.
4. The Respondent has to pay to the Claimant, UGX 18,810,000 and USD 357 as compensation for
breach of contract.
5. Any further claims of the Claimant are rejected.
6. The Claimant is directed to immediately and directly inform the Respondent of the relevant bank
account to which the Respondent must pay the due amount.
7. The Respondent shall provide evidence of payment of the due amount in accordance with this
decision to psdfifa@fifa.org, duly translated, if applicable, into one of the official FIFA languages
(English, French, German, Spanish).
8. In the event that the amount due, plus interest as established above is not paid by the Respondent
within 45 days, as from the notification by the Claimant of the relevant bank details to the
Respondent, the following consequences shall arise:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid and for the maximum duration of three
entire and consecutive registration periods. The aforementioned ban mentioned will be
lifted immediately and prior to its complete serving, once the due amount is paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amount as per in this decision is still not paid by the end of
the ban of three entire and consecutive registration periods, the present matter shall be
submitted, upon request, to the FIFA Disciplinary Committee.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
NOTE RELATED TO THE FINDINGS OF THE DECISION:
In accordance with arts. 15 and 18 of the Procedural Rules, this correspondence only communicates
the findings of the decision without grounds.
Should any of the parties wish to receive the grounds of the decision, a written request must be
received by FIFA, within 10 days of receipt of notification of the findings of the decision. Failure to
do so within the stated deadline will result in the decision becoming final and binding and the parties
being deemed to have waived their rights to file an appeal.
CONTACT INFORMATION:
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | psdfifa@fifa.org | T: +41 (0)43 222 7777