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 21 October 2020

Decision of the

Dispute Resolution Chamber (DRC) Judge

Passed on 21 October 2020,

regarding an employment-related dispute concerning the player Mansoor Safi Agu

BY:

Jon Newman (USA), DRC Judge

CLAIMANT:

MANSOOR SAFI AGU, Uganda

Represented by Mr. Felix Majani

RESPONDENT:

WAZITO FC, Kenya

I. FACTS OF THE CASE

1. On 27 July 2019, the player Ugandan player, Mansoor Safi Agu (hereinafter: the player or the Claimant) and the Kenyan club, Wazito FC (hereinafter: the club or the Respondent) concluded an employment contract (hereinafter: the contract), valid for a duration of 5 seasons, as from the date of signature until 27 July 2021.

2. According to its art. 1.2, the contract could be renewed for a further period of 1 year, on the condition that “the player meets the requirements on performance and fitness”.

3. Art. 1.3 of the contract stipulates that the “this contract is purely a performance based contract. The measures for performance by the club are:

i. Minimum of 50% actively playing in the 1st eleven.

ii. Disciplinary issues against the Club’s Code of Conduct.”

4. According to art. 2 of the contract, the club undertook to pay the player the following remuneration:

a. KES 300,000 as a sign-on fee;

b. KES 90,000 per month as salary, which also includes the “house allowance and commuter allowance”;

c. KES 12,000 as winning bonus for every match won “in the event the player makes it to the match day squad of 18 players”;

d. KES 5,000 for “any match that ends in a draw” but “on the condition that the team wins the premier league at the end of the season. This amount shall be paid as a lump sum”.

e. One month salary if “the team lifts the title” and on the condition that the player has “featured through the league. The Club threshold shall be 50% of the entire season matches”.

5. Arts. 18.1.1 and 18.1.2 of the contract granted the club the possibility to terminate the contract “by giving 1 months’ notice to the player”, among other reasons, if the player “performs below the minimum set standard in terms of performance and is hence deemed as a surplus to the club”.

6. On 21 December 2019, the club announced on Twitter and various media outlets that it had terminated the player’s contract with immediate effect “due to performance-related reasons”.

7. On 24 July 2020, the player filed the claim at hand.

8. In his claim, the player first stated that the club never paid the sign-on fee and only paid KES 20,000 as the salary of August 2019, hence the remaining amount was KES 70,000.

9. The player indicated that he objected to the termination and requested damages for wrongful and unfair termination, however to no avail. In this context, the player considered that the club breached art. 13 of the FIFA Regulations on the Status and Transfer of Players and terminated the contract without just cause. Moreover, the player refereed to the jurisprudence of the FIFA Dispute Resolution Chamber to the extent that poor performance does not warrant a unilateral termination. Moreover, the player argued that the termination can only be an ultima ratio, which was not the case.

10. The player requested compensation for breach of contract, considering that the residual value of the contract is 18 months and 27 days, totalling an amount of KES 1,698,387.

11. The player also requested 6 months of additional compensation as per art. 17.1 (ii) of the FIFA Regulations on the Status and Transfer of Players. The egregious circumstances, according to the player, are that the termination took place during the protected period and the specificity of sport

.

12. In light of the above, the player requested the following:

f. KES 1,698,387 as compensation for breach of contract;

g. KES 370,000 as outstanding remuneration, broken down as follows:

i. KES 70,000 as salary of August 2019;

ii. KES 300,000 as sign-on fee;

h. KES 540,000 as additional compensation.

13. The player further requested interest at 5% p.a. on the amounts sought as from 22 December 2019, as well as costs of the proceeding.

14. In spite having been invited to do so, the Respondent did not reply to the claim.

15. By the time this decision was passed, the player had been unable to find new employment.

II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER JUDGE

a. Competence and applicable legal framework

16. First of all, the Dispute Resolution Chamber Judge (hereinafter also referred to as DRC Judge) analysed whether he was competent to deal with the case at hand. In this respect, he took note that the present matter was presented to FIFA on 24 July 2020 and submitted for decision on 21 October 2020. Taking into account the wording of art. 21 of the June 2020 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.

17. Subsequently, the DRC Judge referred to art. 3 par. 1 of the Procedural Rules and observed that in accordance with art. 24 par. 1 in combination with art. 22 lit. a) and b) of the Regulations on the Status and Transfer of Players (edition October 2020), the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between an Ugandan player and a Kenyan club.

18. Subsequently, the DRC Judge analysed which regulations should be applicable as to the substance of the matter. In this respect, he confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Player (edition October 2020), and considering that the present claim was lodged on 24 July 2020, the June 2020 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

b. Burden of proof

19. The DRC JUdge recalled the basic principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof. Likewise, the DRC Judge stressed the wording of art. 12 par. 4 of the Procedural Rules, pursuant to which he may consider evidence not filed by the parties.

20. In this respect, the DRC Judge also recalled that in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in TMS.

c. Merits of the dispute

21. The competence and the applicable regulations having been established, the DRC Judge entered into the merits of the dispute. In this respect, he started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. However, the DRC Judge emphasised that in the following considerations he will refer only to the facts, arguments and documentary evidence, which it considered pertinent for the assessment of the matter at hand.

i. Main legal discussion and considerations

22. The foregoing having been established, the DRC Judge moved to the substance of the matter, and took note of the fact the Respondent, for its part, failed to present its response to the claim of the Claimant, in spite of having been invited to do so. In this way, the DRC Judge considered that the Respondent renounced its right to defence and thus accepted the allegations of the Claimant.

23. Furthermore, because of the aforementioned consideration, the DRC Judge concurred that in accordance with art. 9 par. 3 of the Procedural Rules, he shall take a decision upon the basis of the documents on file, in other words, upon the statements and documents presented by the Claimant.

24. In continuation, the DRC Judge reverted to the player’s position, according to which the termination of the contract took place without just cause. The DRC Judge further noted that the Claimant had adequately provided evidence pertaining to the termination of the contract at the club’s initiative, and hence established that the player had sufficiently substantiated his claim.

25. In this regards, the DRC Judge furthermore noted that it stands undisputed that the club terminated the contract due to the player’s alleged poor performance.

26. In this context, the DRC Judge turned his attention to the contents of the contract, in particular clauses 3.1, 18.1.1 and 18.1.2, and noted that such clauses appear to be unilateral and to the benefit of the Respondent only. What is more, the DRC Judge underlined that the decision on the lining-up of players in a match is normally left fully to the discretion of the club, and that “poor performance” is based purely on subjective criteria. In the light of such potestative character of the pertinent contractual clauses, the DRC Judge established that they cannot be accepted.

27. Therefore, the DRC Judge recalled the longstanding jurisprudence of the Dispute Resolution Chamber, according to which poor performance does not constitute just cause for termination of a contract, and decided that the club had no legal basis to unilaterally terminate the contract. Accordingly, the DRC Judge determined that the club is to be held liable for such early termination of the contract without just cause.

ii. Consequences

28. In continuation, having established that the club is to be held liable for the early termination of the contract with just cause, the DRC Judge focused his attention on the consequences of such termination.

29. In this regard, DRC Judge determined on the grounds of the principle pact sunt servanda that the club was not only to pay the amount of KES 370,000 as outstanding remuneration to the player, but also to pay compensation for breach of contract in conformity with art. 17 par. 1 of the Regulations.

30. In addition, taking into consideration the player’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the DRC Judge decided to award the player interest at the rate of 5% p.a. on the cited outstanding amount as of 22 December 2019 until the date of effective payment.

31. Having stated the above, the DRC Judge turned to the calculation of the amount of compensation payable to the player by the club in the case at stake. In doing so, he 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 player 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.

32. In application of the relevant provision, the DRC Judge held that it first of all had to clarify as to whether the pertinent employment contract contained 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, he established that no such compensation clause was included in the employment contract at the basis of the matter at stake.

33. As a consequence, the DRC Judge determined that the amount of compensation payable by the club to the player had to be assessed in application of the other parameters set out in art. 17 par. 1 of the Regulations. He further recalled that said provision provides for a non-exhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable.

34. Bearing in mind the foregoing, the DRC Judge proceeded with the calculation of the monies payable to the player under the terms of the contract until its term. Consequently, the DRC Judge concluded that the amount of KES 1,800,000 (i.e. 20 months à KES 90,000 each) serves as the basis for the determination of the amount of compensation for breach of contract.

35. In continuation, the DRC Judge verified as to whether the player 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, and confirmed that the player was unable to find new employment.

36. In this respect, the DRC Judge referred to art. 17 par. 1 lit. ii) of the Regulations, according to which a player is entitled to an amount corresponding to three monthly salaries as additional compensation should the termination of the employment contract at stake be due to overdue payables. In the case at hand, he clarified that the contract termination had not taken place due to said reason i.e. overdue payables by the club, and therefore decided that the player is not entitled to receive additional compensation.

37. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand as well as the principle of non ultra petita, the DRC Judge decided that the club must pay the amount of KES 1,698,387, which was to be considered a reasonable and justified amount of compensation for breach of contract in the present matter.

38. Lastly, taking into consideration the player’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the DRC Judge decided to award the player interest on said compensation at the rate of 5% p.a. as of the date of claim, i.e. 24 July 2020, until the date of effective payment.

iii. Compliance with monetary decisions

39. Finally, the DRC Judge 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.

40. In this regard, the DRC Judge highlighted that, against clubs, the consequence of the failure to pay the relevant amounts in due time shall consist of a ban from registering any new players, either nationally or internationally, up until the due amounts are paid and for the maximum duration of three entire and consecutive registration periods.

41. Therefore, bearing in mind the above, the DRC Judge decided that, in the event that the Respondent does not pay the amounts due to the Claimant within 45 days as from the moment in which the Claimant, communicates the relevant bank details to the Respondent, provided that the decision is final and binding, 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 Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.

42. The DRC Judge recalled that the above-mentioned bans 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.

43. Lastly, the DRC Judge concluded its deliberations by rejecting any other requests for relief made by any of the parties.

d. Costs

44. The DRC Judge referred to article 18 par. 2 of the Procedural Rules, according to which “DRC proceedings relating to disputes between clubs and players in relation to the maintenance of contractual stability as well as international employment related disputes between a club and a player are free of charge”. Accordingly, the DRC Judge decided that no procedural costs were to be imposed on the parties.

45. Likewise and for the sake of completeness, the DRC Judge recalled the contents of art. 18 par. 4 of the Procedural Rules, and decided that no procedural compensation shall be awarded in these proceedings.

III. DECISION OF THE DISPUTE RESOLUTION CHAMBER JUDGE

1. The claim of the Claimant, MANSOOR SAFI AGU, is partially accepted.

2. The Respondent, WAZITO FC, has to pay to the Claimant the following amounts:

- KES 370,000 as outstanding remuneration plus 5% interest p.a. as from 22 December 2019 until the date of effective payment;

- KES 1,698,387 as compensation for breach of contract without just cause plus 5% interest p.a. as from 24 July 2020 until the date of effective payment.

3. Any further claims of the Claimant are rejected.

4. 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.

5. 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).

6. 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.

7. The decision is rendered free of costs.

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer

NOTE RELATED TO THE APPEAL PROCEDURE:

According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this decision.

NOTE RELATED TO THE PUBLICATION:

FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a party within five days of the notification of the motivated decision, to publish an anonymised or a redacted version (cf. article 20 of the Procedural Rules).

CONTACT INFORMATION:

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