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 13 November 2020

Decision of the

Dispute Resolution Chamber

passed on 13 November 2020,

regarding an employment-related dispute concerning the player Hamisi KIZZA

COMPOSITION

Omar Ongaro (Italy), Deputy Chairman Daan de Jong (Netherlands), member Stijn Boeykens (Belgium), member

CLAIMANT:

HAMISI KIZZA, Uganda

Represented by Ms Kaganzi & co

RESPONDENT:

FASIL KENEMA, Ethiopia

I. FACTS

1. On 1 March 2018, an Ugandan player, Hamissi Kizza (hereinafter: the player or Claimant) and an Ethopian club, Fasil Kenema (hereinafter referred: the club or Respondent) concluded an employment contract (hereinafter: the contract) valid as from 1 March 2018 until 30 March 2020.

2. According to the contract the Respondent undertook to pay the Claimant a monthly salary of Ethiopia Birr (ETB) 95,297.

3. Furthermore in accordance with the contract, the Respondent had the obligation to “provide the transportation so as the player appear in the training and competition pitches”.

4. On 14 June 2018, the Respondent sent a letter to the Claimant stating the following:

“your decline of performance and repeatedly found out of discipline in terms of not accepting orders from the coaches and you tried to create grouping in the players. Therefore the club has decided to give you this letter of warning issued to you to be improved yourself from such problem”

5. On 18 July 2018, the Respondent sent another letter to the Claimant with the same content as the letter dated 14 June 2018.

6. During the off-season in “mid-July 2018”, the Claimant was authorised by the Respondent to return to Uganda for holidays.

7. According to the Respondent, on 3 September 2018, it sent a letter to the Claimant whereby it requested the player to report to training within 10 days, otherwise he would be “cancelled from the players list”.

8. On 4 September 2018, the Claimant’s agent sent an email to the Respondent indicating that he was informed of misunderstandings relating to the unpaid salaries of the player as well as “complete broken communication tendencies of late”. In this regard he requested that the parties “quickly engage in a discussion which will lead to a conclusive and profitable solution to both sides”.

9. On 10 September 2018, the Claimant’s agent sent another email to the Respondent, in which he confirmed that the player is willing to “settle the rest and start training as well”. He then requested the Respondent to send the Claimant’s flight ticket directly to his email and further stated “if not please let me know what your stand is”.

10. On 18 September 2018, the Claimant’s agent sent another email to the Respondent, indicating they he finds it disturbing that “some players of mine have been sent tickets to return to Ethiopia and others simply told to return minus tickets”. He further stated that no formal communication has been sent to the Claimant about his return and requested the Respondent to confirm if they are still interested in the Claimant’s services for the coming season, stating the following:

a) “if YES, then I facilitate him with a return ticket to resume training immediately

b) if No, then we resume talks to have his running contract concluded amicably to a point where both parties agree to part ways in a gentleman’s way of win-win situation”.

11. On 28 November 2018, the Claimant sent a letter to the Federation of Uganda Football Association (hereinafter: FUFA), requesting it “to compel [the Respondent] to inform me about my contractual status since it’s become quite clear they are not interested in my services anymore”.

12. On 21 December 2018, FUFA sent a letter to the Ethiopian Football Federation requesting it “to intervene into the matter to enable the player receive fair treatment and judgement required”.

13. On 6 January 2019, the player signed a new contract with the Uganda club, Vipers Sports Club, valid as from 6 January 2019 until 31 July 2019, providing a monthly salary of Uganda Shilling (UGX) 12,000,000 (approx. EUR 2,700 and ETB 90,000).

14. On 23 July 2019, the player signed another contract with the Uganda club, Proline FC, valid as from 23 July 2019 until 23 July 2020, providing for a monthly salary of UGX 800,000 (approx. EUR 200 or ETB 6,000).

15. On 28 August 2020, the Claimant lodged a claim at FIFA against the Respondent, in his claim, the player argued that the contract was terminated by just cause by joining his new club in Uganda on 6 January 2019.

16. The player stated that he only received his salary until June 2018 and subsequently the Respondent failed to remit any further salaries.

17. According to the Claimant, he never received any communication from the club as to when he shall resume work after his vacation. In this regard, he referred to his requests sent to the club.

18. Furthermore, the player argued that the club paid his one way ticket to Uganda, but refused to buy his return ticket, even though it promised to do so. In this context, the Claimant alleged that it paid for a teammate’s flight ticket back and forth.

19. In this context, the player stated that the club acted on purpose by not sending him a return ticket, which is abusive.

20. Moreover, the player maintained that the dispute started in June 2018, when the Respondent hired a new coach who was not interested in his services anymore.

21. The player therefore in its claim to FIFA, requested payment of the following amounts:

- ETB 571,782 as outstanding salaries, corresponding to his salaries as of July until December

2018; and

- ETB 1,143,564 as compensation for breach of contract, corresponding to the residual value of

the contract.

22. In its reply to the claim, the Respondent rejected the player’s claim and held that the Claimant did not return after his holidays.

23. In this regard, the Respondent pointed out that the contract did not contain any clause according to which the club had to pay for the player’s flight tickets and that it was the player’s duty to resume work after his holidays.

24. As to the player’s argument that the club had paid the return ticket of another player, the Respondent maintained that said player agreed to have the costs deducted from his salary.

25. Furthermore, the club held that it requested the player to return with a letter on 3 September 2018 and that it subsequently terminated the player’s contract since he failed to return. In this regard, the club submitted a “termination letter”, dated 14 August 2018, referring to the club’s request to the player to return within 10 days and that he failed to do so, which led the club to terminate the contract with immediate effect.

26. In conclusion, the club brought forward that it had to send warning letters to the player due to disciplinary issues before he went on vacation.

II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER

1. First of all, the Dispute Resolution Chamber (hereinafter also referred as DRC or Chamber) analysed whether it was competent to deal with the case at hand. In this respect, the Chamber took note that the present matter was submitted to FIFA on 28 August 2020. Consequently, the DRC concluded that the June 2020 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the Procedural Rules).

2. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition August 2020) the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns a dispute with an international dimension between an Ugandan player and an Ethiopian club.

3. Furthermore, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, it confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition February 2021), and considering that the present claim was lodged on 28 August 2020, the August 2020 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

4.The competence of the Chamber and the applicable regulations having been established, theChamber entered into the substance of the matter. In this respect, the Chamber started byacknowledging all the above-mentioned facts as well as the arguments and the documentationsubmitted by the parties. However, the Chamber emphasised that in the followingconsiderations it will refer only to the facts, arguments and documentary evidence, which itconsidered pertinent for the assessment of the matter at hand.

5.Having said that, the members of the Chamber acknowledged that the player and Respondent,on 1 March 2018, concluded an employment contract valid as from 1 March 2018 until 30March 2020, in accordance with which the Respondent undertook to pay the player a monthlysalary of ETB 95,297.

6.Subsequently, the Chamber took note that on 28 August 2020, the player lodged aclaim against the Respondent, requesting payment of the following amounts:

-ETB 571,782 as outstanding salaries, corresponding to his salaries as of July until

December 2018; and

-ETB 1,143,564 as compensation for breach of contract, corresponding to the residual

value of the contract.

7.In continuation, the DRC noted that the player alleged that the club breached the contract as he only received his salary until June 2018 and subsequently the Respondent failed to remit any further salaries. The player further emphasised that the dispute started in June 2018, when the Respondent hired a new coach who was not interested in his services anymore. Moreover, the player indicated that the club refused to buy his return flight ticket to Ethiopia after his vacation in Uganda.8.The DRC acknowledged the argument of the player in which he indicated that the contract was terminated by just cause by him joining his new club in Uganda on 6 January 2019.9.The Chamber noted that the Respondent, on the other hand, rejected the claim put forward by the player and argued that on 3 September 2018, it requested the player to return to the club and that it subsequently terminated the player’s contract since he failed to return.10.Furthermore, that the Respondent argued that the contract did not contain any clause stipulating that it was the club’s obligation to pay for the player’s flight tickets and that it was the player’s duty to resume work after his holidays.11.The members of the Chamber highlighted that the underlying issue in this dispute, considering the diverging position of the parties, was to determine as to whether the contract had been validly terminated and whether the Respondent was contractually obligated to purchase the flight ticket of the player.12.The Chamber acknowledged that the player is, in particular, convinced that the Respondent is no longer interested in his services, since it did not provide him with the relevant flight ticket in order to join the club. Moreover that the Respondent, on the other hand held that it issued a letter on 3 September 2018 requesting the return of the player and that it subsequently terminated the player’s contract since he failed to return.

13.In accordance with the information on file, the Chamber noted that the correspondence between the parties appears to be incomplete and the date of the alleged termination of the Respondent is not clear, as the club failed to communicate a date when the player had to return. However, the DRC acknowledged that the receipt of said correspondence is contested by the player and no proof of transmission was provided by the Respondent.14.It therefore - according to the members of the Chamber - appears that the parties exchanged some correspondence until 18 September 2018, when the player requested if his services are still wanted, which correspondence remained unanswered by the Respondent. Subsequently, it appears that both parties have given up interest in the employment relationship after this correspondence.15.Furthermore, the Chamber took note of the fact that the relevant employment contract does not establish any agreement regarding the bearing of the costs of the player’s flight tickets by the Respondent.16.Carefully analysing the above-mentioned positions of the parties and the abovementioned facts, the members of the Chamber concluded that both, the player and the Respondent, were responsible for the non-execution of the employment contract. The player failed to properly offer his services since it was his obligation to return to work and the club did not seem to be interested in the player’s services anymore after failing to communicate the return date to the player.17.The DRC further concluded that it was the player’s obligation to pay for his own flight ticket in order to resume work after his vacation and there was no contractual provision obligating the Respondent to pay the said flight ticket of the player.18.Consequently, the members of Chamber concluded that it is evident that the parties did not act as asserted and the DRC must consider that neither the player nor the Respondent were interested in the execution of the employment contract.19.In light of the above, the members of the Chamber decided unanimously that both parties bear an equal part of the responsibility for the non-execution of the relevant employment contract.20.In this regard, the Chamber stated that due to the specific and unclear situation and taking into account the considerations above, the members of the Chamber concluded that the contract was terminated at the end of September 2018, since both parties lost interest in the contractual relationship thereafter.

21.As to the outstanding remuneration, the DRC noted that the claim was lodged on 28 August2020 and that in accordance with art. 25. par. 5 RSTP, the salary of July 2018 is to beconsidered time-barred.

22.Furthermore, as to the player’s salaries for August and September 2018, the DRC noted thatthe player would have had to return to the club to properly offer his services and due to disputeabout the flight ticket, which he failed to do so. As a result of these circumstances, especiallybecause the player failed to resume his work, the members of the Chamber concluded that noremuneration shall be payable by the club to the player for the months of August andSeptember 2018.

23.In view of the above, the Dispute Resolution Chamber rejected the Claimant’s claim, insofar itis considered to be admissible.

III.DECISION OF THE DISPUTE RESOLUTION CHAMBER

The claim of the Claimant, Hamisi KIZZA is rejected, insofar it is admissible.

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).

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