Labour Disputes
Texto da decisão
REF FPSD-6560
Decision of the
Dispute Resolution Chamber
passed on 31 August 2022
regarding an employment-related dispute concerning the player
Kennedy Asiah
BY:
Dana Mohamed Al-Noaimi, Qatar
CLAIMANT:
Kennedy Asiah, Ghana
epresented by JM PM e Associados Sociedade de Advogados
RESPONDENT:
Kathmandu Rayzrs, Nepal
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I. Facts of the case
1.
On 13 March 2022, the Ghanian player, Kennedy Asiah (hereinafter: the Claimant), and
the Nepalese club, Kathmandu Rayzrs (hereinafter: the Respondent) signed an
employment contract (hereinafter: the Contract) valid as from 15 March 2022 until 20
May 2022, namely the end of the Nepalese Super League.
2.
In accordance with the employment contract, the Respondent undertook to pay to
the Claimant inter alia a total remuneration of NPR 487,800 (Nepalese Rupees),
broken down into 3 instalments:
-
“20% on the Player’s arrival
40% during mid-league
40% 5 days before the end of the league”.
3.
On 13 March 2022, the Respondent sent several emails to the Nepalese embassy in
Ghana requesting to grant a visa to the Claimant and undertaking full responsibility
for the latter in Nepal as professional football player.
4.
By correspondence dated 5 April 2022, the Claimant accused the Respondent of not
respecting its contractual obligations, in particular complaining about the fact that the
latter did not allow the Claimant to join the team in Nepal in spite of the ongoing
season reaching its end.
5.
Contextually, the Claimant warned the Respondent that in case of protracted abusive
conduct towards the Claimant, the latter would have had no alternative but to
terminate the employment contract with just cause.
6.
In this respect, the Claimant granted the Respondent 15 days to remedy the breach.
7.
On 25 April 2022, the Claimant notified the Respondent the unilateral termination of
the Contract and requested the payment of 80% of his salary within the following 10
days.
8.
The Claimant remained unemployed following the termination of the Contract.
II. Proceedings before FIFA
9.
On 31 May 2022, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
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a. Position of the Claimant
10. According to the Claimant, the Respondent did not comply with its financial
obligations nor it has allowed the Claimant to join the team in Nepal so to render his
professional services in accordance with the Contract.
11. In this respect, the Claimant held to have had just cause to terminate the Contract on
25 April 2022 due to the abuse realized by the Respondent who acted in bad faith.
12. Accordingly, the Claimant requested to be paid compensation for breach of contract
by the Respondent, amounting to the following:
-
“40% of the net salary that should have been paid during the mid-league (NPR
195,120)
40% of the net salary that should have been paid 5 days before the end of the league
(NPR 195,120)
5% interest per annum on the awarded sums”.
b. Position of the Respondent
13. In spite of having been invited to do so, the Respondent did not file a response to the
claim.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
14. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also
referred to as Single Judge analysed whether she was competent to deal with the case
at hand. In this respect, she took note that the present matter was presented to FIFA
on 31 May 2022 and submitted for decision on 31 August 2022. Taking into account
the wording of art. 34 of the June 2022 edition of the Procedural Rules Governing the
Football Tribunal (hereinafter: the Procedural Rules), the aforementioned edition of the
Procedural Rules is applicable to the matter at hand.
15. Subsequently, the Single Judge referred to art. 2 par. 1 of the Procedural Rules and
observed that in accordance with art. 23 par. 1 in combination with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players (June 2022 edition), she is
competent to deal with the matter at stake, which concerns an employment-related
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dispute with an international dimension between a Ghanian player and a Nepalese
club.
16. Subsequently, the Single Judge analysed which regulations should be applicable as to
the substance of the matter. In this respect, she confirmed that, in accordance with
art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (June 2022
edition) and considering that the present claim was lodged on 25 May 2022, the March
2022 edition of said regulations (hereinafter: the Regulations) is applicable to the
matter at hand as to the substance.
b. Burden of proof
17. The Single Judge recalled the basic principle of burden of proof, as stipulated in art.
13 par. 5 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 Single
Judge stressed the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which
she may consider evidence not filed by the parties, including without limitation the
evidence generated by or within the Transfer Matching System (TMS).
c. Merits of the dispute
18. The competence and the applicable regulations having been established, the Single
Judge entered into the merits of the dispute. In this respect, the Single Judge started
by acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Single Judge emphasised that in the following
considerations she will refer only to the facts, arguments and documentary evidence,
which she considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
19. The foregoing having been established, the Single Judge moved to the substance of
the matter, and took note of the fact that on 13 March 2022 the Claimant concluded
an employment contract with the Respondent, valid until 20 May 2022.
20. In this context, the Single Judge acknowledged that pursuant to the abovementioned
Contract, the Claimant would be entitled to a total remuneration of NPR 487,800, and
yet, according to the Claimant, the Respondent failed to pay 80% of the agreed sums.
21. Moreover, the Single Judge observed that the Claimant never moved to Nepal after
the signing of the Contract, nor the Respondent seems to have provided the Claimant
with the relevant working permits and/or flight tickets that would be required in order
to join the Respondent’s team in Nepal.
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22. Furthermore, the Single Judge noted that the Respondent also failed to reply to the
Claimant’s letters dated 5 April and 25 April 2021, thus showing a lack of interest for
a player that it decided to engage few months before.
23. In addition to the above, the Single Judge wished to remark that by no presenting any
response to the claim filed by the Claimant on 31 May 2022, the Respondent
renounced its right of defence and, thus, accepted the allegations of the Claimant.
24. As a consequence of the aforementioned consideration, the Single Judge concurred
that in accordance with art. 21 par.1 of the Procedural Rules, she shall take a decision
upon the basis of the documentation already on file; in other words, upon the
statements and documents presented by the Claimant.
25. With the above in mind, the Single Judge focused her attention on the circumstances
of the termination in order to assess whether on 25 April 2022 the Claimant had just
cause to unilaterally interrupt the employment relationship with the Respondent.
26. In this respect, the Single Judge firstly acknowledged the Respondent’s behaviour,
who apparently never replied to any of the letters sent by the Claimant, nor it
provided him with the flight tickets and visa necessary for his move to Nepal.
27. Furthermore, the Single Judge recalled that, according to the Claimant, at the moment
of the termination the Respondent held overdue payables towards the Claimant
corresponding to 40% of the total remuneration due under the Contract since “during
the mid-league”, whereas as from 15 May 2022 the Respondent should have paid the
remaining 40% as agreed by the parties.
28. In this respect, noted the absence of specific indications in the Contract regarding the
definition of “mid-league”, the Single Judge interpreted such term as to be referred to
the halfway of the contractual duration agreed by the parties.
29. In this context, the Single Judge wished to remark that a different interpretation which
considered the “mid-league” term to be referred to the halfway of the entire sporting
season would result illogical if considered that the parties stipulated the employment
agreement for the last 3 months of the Nepalese Super League only.
30. Accordingly, considered a total contractual duration of about 66 days, the Single Judge
deemed the due date for the abovementioned sum of NPR 195,120 to be on the 33rd
day from the entry into force of the Contract, i.e. 17 April 2022.
31. Therefore, the Single Judge assessed that on the day of the termination, the
outstanding remuneration in favour of the Claimant amounted to 40% of the total
contractual value, i.e. NPR 195,120.
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32. In view of all the above considerations, the Single Judge determined that on 25 April
2022 the Claimant had just cause to terminate the Contract because of the
Respondent’s significant breach.
ii. Consequences
33. Having stated the above, the Single Judge turned her attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
34. The Single Judge established that the outstanding remuneration at the time of
termination, coupled with the specific requests for relief of the player, is equivalent
to 40% of the total remuneration agreed under the Contract, which amounts to NPR
195,120.
35. As a consequence, and in accordance with the general legal principle of pacta sunt
servanda, the Chamber decided that the Respondent is liable to pay to the Claimant
the amounts which were outstanding under the contract at the moment of the
termination, i.e. NPR 195,120 (i.e. 40% of NPR 487,800).
36. In addition, taking into consideration the Claimant’s request as well as the constant
practice of the Chamber in this regard, the Single Judge decided to award the Claimant
interest at the rate of 5% p.a. on the outstanding amounts as from the date of the
claim.
37. Having stated the above, the Single 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, the
Single Judge 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.
38. In application of the relevant provision, the Single 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,
the Single Judge established that no such compensation clause was included in the
employment contract at the basis of the matter at stake.
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39. As a consequence, the Single 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. The Single Judge recalled that
said provision provides for a non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable.
40. Bearing in mind the foregoing as well as the claim of the player, the Single Judge
proceeded with the calculation of the monies payable to the player under the terms
of the contract from the date of its unilateral termination until its end date.
Consequently, the Single Judge concluded that the amount of NPR 195,120 (i.e. 40%
of NPR 487,800) serves as the basis for the determination of the amount of
compensation for breach of contract.
41. In continuation, the Single 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. According to the
constant practice of the FIFA DRC as well as art. 17 par. 1 lit. ii) of the Regulations, 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.
42. However, the Single Judge verified that the player did not find any new employment
with another club during the relevant period of time, hence he failed to mitigate his
damages.
43. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Single Judge decided that the club must pay the
amount of NPR 195,120 to the player (i.e. 40% of NPR 487,800), which was to be
considered a reasonable and justified amount of compensation for breach of contract
in the present matter.
44. Lastly, taking into consideration the player’s request as well as the constant practice
of the FIFA DRC in this regard, the Single Judge decided to award the player interest
on said compensation at the rate of 5% p.a. as of the date of the claim until the date
of effective payment.
iii. Compliance with monetary decisions
45. Finally, taking into account the applicable Regulations, the Single Judge referred to art.
24 par. 1 and 2 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.
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46. In this regard, the Single 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. The overall maximum duration of the registration ban shall be of up to three
entire and consecutive registration periods.
47. Therefore, bearing in mind the above, the Single Judge decided that the Respondent
must pay the full amount due (including all applicable interest) to the Claimant within
45 days of notification of the decision, failing which, at the request of the Claimant, a
ban from registering any new players, either nationally or internationally, for the
maximum duration of three entire and consecutive registration periods shall become
immediately effective on the Respondent in accordance with art. 24 par. 2, 4, and 7 of
the Regulations.
48. The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Account Registration Form, which is
attached to the present decision.
49. The Single Judge recalled that the above-mentioned ban will be lifted immediately and
prior to its complete serving upon payment of the due amounts, in accordance with
art. 24 par. 8 of the Regulations.
d. Costs
50. The Single Judge referred to art. 25 par. 1 of the Procedural Rules, according to which
“Procedures are free of charge where at least one of the parties is a player, coach, football
agent, or match agent”. Accordingly, the Chamber decided that no procedural costs
were to be imposed on the parties.
51. Likewise and for the sake of completeness, the Single Judge recalled the contents of
art. 25 par. 8 of the Procedural Rules, and decided that no procedural compensation
shall be awarded in these proceedings.
52. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for
relief made by any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Kennedy Asiah, is accepted.
2.
The Respondent, Kathmandu Rayzrs, has to pay to the Claimant, the following
amount:
195,120 NPR (Nepalese Rupees) as outstanding remuneration plus 5% interest p.a. as
from 31 May 2022 until the date of effective payment;
195,120 NPR as compensation for breach of contract without just cause plus 5%
interest p.a. as from 31 May 2022 until the date of effective payment.
3.
Full payment (including all applicable interest) shall be made to the bank account
indicated in the enclosed Bank Account Registration Form.
4.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players if full
payment (including all applicable interest) is not made within 45 days of notification
of this decision, the following consequences shall apply:
1. The Respondent shall be banned from registering any new players, either
nationally or internationally, up until the due amount is paid. The maximum
duration the ban shall be of three entire and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee in the event that full payment (including all applicable interest) is still
not made by the end of the three entire and consecutive registration periods.
5. The consequences shall only be enforced at the request of the Claimant in
accordance with article 24 par. 7 and 8 and art. 25 of the Regulations on the Status and
Transfer of Players.
6. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 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 17 of the Procedural Rules).
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