Labour Disputes
Texto da decisão
REF FPSD-2324
Decision of the
Dispute Resolution Chamber
passed on 1 July 2021
regarding an employment-related dispute concerning the player John Avire
COMPOSITION:
Clifford J. Hendel (USA / France), Deputy Chairman
Tomislav Kasalo (Croatia), member
Pavel Pivovarov (Russia), member
CLAIMANT:
Sofapaka Football Club, Kenya
Represented by Mr Felix Majani and Company Advocates
RESPONDENT I:
John Avire, Kenya
RESPONDENT II:
Tanta Club, Egypt
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I.
FACTS OF THE CASE
1.
On 15 November 2018, the Kenyan club, Sofapaka Football Club (hereinafter: the Claimant
or Sofapaka) and the Kenyan player, John Avire (hereinafter: the Respondent 1 or Player)
concluded an employment contract, valid as from the date of signature until 31 December
2020 (hereinafter: the Contract).
2.
According to clause 3 of the contract, the Claimant undertook to pay the player a monthly
salary of Kenyan shilling (KSH) 80,000.
3.
As per clause 4.3 of the contract, “The player shall have the right to terminate a contract
and join another club by giving three months’ notice and fulfilment some conditions of
release determinate by SOFAPAKA F.C.”
4.
According to the Claimant, in June 2019, the Belgian club Royal Antwerp Football Club
(hereinafter: Antwerp) allegedly expressed its interest in acquiring the player’s services and
that after a negotiation the parties agreed on a transfer fee of EUR 200,000, plus a sell on
fee of 25%.
5.
In June 2019, the Kenyan national team went to Egypt for the Total Africa Cup of Nations
2019 (AFCON) together with the player, who had been called-up by the national team.
6.
On 27 June and 1 July 2019, the player played in 2 of the 3 Kenya’s AFCON 2019 matches,
coming on as a substitute against Tanzania and Senegal. According to the Claimant, the
player’s “amazing” performances during AFCON “caught the eyes of a significant number
of Egyptian and other clubs as interest in his services significantly grew.”
7.
On 28 June 2019, the Belgian club Antwerp, allegedly sent a letter to the Belgian embassy
in Kenya, asking them to grant the player a Belgian visa as well as explaining that the player
has to undergo a medical examination and other tests after which, in case of positive results,
the two parties - Antwerp and the player - would negotiate on the employment terms.
8.
On 7 July 2019, the player sent a letter addressed to the Claimant, which according to the
latter was exclusively sent to the Football Kenya Federation (FKF), by means of which the
player terminated his employment relationship with the Claimant. The letter reads as
follows:
“(…)
TERMINATION OF CONTRACT WITH JUST CAUSE
I refer to the above subject matter and to the contract between myself and Sofapaka
Football Club.
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That you are in breach of the said contract by refusing and/or failing to comply with your
financial obligations towards me as your player contrary to the provisions of Article 12bis
and Article 13 of the FIFA Regulations on the Status and Transfer of Players. I wish to
remind you that you have not paid me the salaries for the month of April, May and June
in addition to my sign on fees balance that have not been paid to me.
In light of the foregoing, I wish to terminate my contract with yourselves with just cause
with immediate effect as provided in Article 14 of the FIFA Regulations on the Status and
Transfer of Players.
I will also be seeking legal redress for compensation for breach of contract.
(…)”
9.
On 9 July 2019, the Claimant sent a letter to the player, requesting inter alia to have 10
days in order for the Claimant to collect the money and proceed with the payment of the
player’s outstanding salaries.
10.
On 11 July 2019, the Claimant paid the player’s salaries of April, May and June 2019.
11.
On 12 July 2019, the FKF sent a letter to the Egyptian Embassy in Kenya, requesting an
entry visa to be issued to the player and his agent for travelling and watch the remaining
matches of the AFCON from 15 to 26 July 2019 as fans.
12.
On 16 July 2019, the player confirmed via email having received his “past due salaries”.
13.
On 16 July 2019, the Claimant wrote to the FKF President expressing its disappointment
with the manner the FKF CEO and the player had purportedly orchestrated the player’s
termination of the contract and requested the FKF President’s indulgence in dealing with
the matter.
14.
On the same date, 16 July 2019, the Claimant sent a letter to the player requiring him to
report to training by 17 July 2019, and reiterating that he still had a valid contract with it
and that the Claimant had cleared his outstanding salaries notwithstanding that his
termination was contrary to the FIFA Regulations, for failing to grant to the Claimant the
mandatory 15 days pre-termination notice.
15.
By means of a letter dated 19 July 2019, the Claimant informed the player that the club’s
disciplinary committee had initiated and imposed sanctions on him for breaching the
employment contract by inter alia, failing to report to work.
16.
On 6 August 2019, the FKF informed the Claimant of the following:
“(…)
We wish to refer you to Article 9 of the FIFA Regulations on the Status and Transfer of
Players which clearly states that “Players registered at one association may only be
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registered at a new association once the latter has received an International transfer
certificate (hereinafter: ITC) from the former association.”
In line with the aforementioned, and having not received any transfer request for the
player, we wish to inform you that John Avire remains a Sofapaka FC player until 2021 as
per his contract with your club.
(…)”
17.
On 13 August 2019, the Claimant concluded an employment contract with the Ugandan
player, Peter Lwasa, valid as from the date of signature until 13 August 2020, according to
which the Claimant undertook to pay to him a total remuneration of 1.200.000 Ksh,
roughly equivalent to USD 12,000. The Claimant sustained to have signed the player, Peter
Lwasa, “as a replacement for the player [the Respondent I]”
18.
On 17 August 2019, the Egyptian club, Tanta Club (hereinafter: the Respondent II or Tanta),
and the player, concluded an employment contract valid as of 1 September 2019 until 31
August 2022 (hereinafter: the New Contract)
19.
On 22 August 2019, the Claimant wrote to the FKF requesting, inter alia, its intervention
by contacting the Respondent II and the Egyptian Football Association (hereinafter: the EFA)
for: “(i) questioning why the Player had been allowed to feature for Tanta despite having a
validly running contract with Sofapaka (ii) demanding the Player’s immediate release by
Tanta and his return to Kenya to honour his contract with Sofapaka.”
20.
On 2 September 2019, Tanta requested Sofapaka the player’s TPO clearance form.
21.
On 3 September 2019, Sofapaka wrote to Tanta stating inter alia that the player’s purported
termination was unjustified and contrary to the FIFA Regulations. Sofapaka further stated
that they did not intend to release the player to any club and informed Tanta of its intention
to take legal action against it.
22.
On 11 September 2019, Tanta replied to the Claimant’s correspondence dated 3 September
2019, by stating the following:
“(…)
We would like to thank you for clarifying the situation of player John Avire and your
readiness to negotiate.
In fact, we asked you for the TPO to see the situation more clearly before entering
negotiation with the player.
Now, we see that there is a dispute between you and the aforementioned player on the
contract termination.
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REF FPSD-2324
Please be advised that the player provided us with a notice of contract termination with
Just Cause as per Article 14 of the FIFA Regulations on the Status and Transfer of Player
and a reply from your side confirming that you failed to fulfil your financial obligations
towards the player for three successive months due to financial challenges. In addition, the
player made personal declaration that he has terminated the contract with you and he is
currently free to engage into a new contract.
We are not a judging body and we cannot state who violated or respected the FIFA
regulations.
As you stated your readiness to negotiate, how can we find a solution to the current
situation from your point of view?
(…)”
23.
On 12 September 2019, the Claimant replied to Tanta’s latest correspondence, requesting
inter alia Tanta’s release of the player to return to Kenya for honouring the employment
contract with the Claimant.
24.
On 14 January 2020, the EFA requested the player’s International Transfer Certificate (ITC)
through the FIFA Transfer Matching System (TMS) from the FKF, in order to register him for
its affiliated club, Tanta.
25.
On 20 January 2020, the FKF rejected the relevant ITC request of the EFA through the TMS,
claiming that there is an existing employment contract between the player and its affiliated
club, Sofapaka FC. The FKF explained that: "the contract between the former club and the
professional player has not expired" and added that: “the player still has a valid contract
with his former club. This has been communicated to Tanta FC and EFA severally. Kindly
follow the correct procedure to acquire the player”.
26.
On 6 February 2020, the EFA addressed FIFA requesting assistance with regard to the
provisional registration of the player for its affiliated club, Tanta.
27.
On 14 February 2020, the Single Judge of the Players’ Status Committee authorised the
EFA to provisionally register the player with its affiliated club, Tanta Club, with immediate
effect.
28.
According to the Claimant, in December 2020, the player was registered by the Egyptian
club, Aswan SC.
29.
In January 2021, the player was transferred to the Egyptian club Coca Cola FC. According
to the information provided by the EFA, the player is currently registered with Coca Cola
FC.
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REF FPSD-2324
II.
PROCEEDINGS BEFORE FIFA
30.
On 19 April 2021, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a.
31.
The claim of the player
The Claimant filed the claim at hand and claimed that the player did not have just cause
under FIFA Regulations to terminate the contract. The Claimant advanced the following
arguments:
The Claimant maintained that considering the clear vagueness and ambiguity of the
player’s termination letter dated 7 July 2019, said termination has to be considered as “a
reminder, a default notice, from the Player to Sofapaka sent pursuant to Article 12bis of
the FIFA RSTP asking them to clear his arrears within 10 days failure to which he would
exercise his wish to terminate the contract with immediate effect as provided under Article
14 of the FIFA RSTP.”
It added that by following the above-explained interpretation of the player’s termination
letter and in accordance with art. 14 and/or art. 12bis of the FIFA RSTP “any claim must
be preceded by a 15 and 10 days default notice respectively.”
The Claimant highlighted that after receiving the player’s letter dated 7 July 2019, it
immediately paid his outstanding salaries on 11 July 2019, “thereby giving him no right or
cause of action in law or in fact to terminate the Employment Contract.”
In continuation, the Claimant sustained that assuming the player’s termination letter was
to be deemed a termination notice, it was unjustified and unlawful, considering that: (i)
the player should have placed the club on a 15 days’ written notice as per art. 14bis par.
1 of the FIFA RSTP; (ii) “The doctrine of pacta sunt servanda required the Player to first
place Sofapaka on 3 months’ notice;” and (iii) “Termination is an ultima ratio”.
On account of the above, the Claimant deemed to be entitled to the following amount:
With regard to the Claimant’s above indicated amounts expressed in EUR, it explained the
following:
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“The Player had 17 months and 25 days left on his contract (8th July 2019 – 31st December
2020). He was on a monthly salary of Ksh 80,000 (approximately EUR 6201), meaning the
residual value under the old contract stood at EUR 11,040 calculated as follows:
EUR 620 x 17 Months = USD 10,540
Plus EUR 620 x (25 ÷31 days) = EUR 500
(…) Despite receiving a formal confirmation from FKF that the Player was still theirs in
addition to FKF refusing to send the Player’s ITC to the EFA, Sofapaka did not sit on their
laurels ahead of the forthcoming season. They immediately replaced the Player by signing
another striker on a 1 year contract during which period they had to pay him a total
remuneration of USD 12,000, which translates to EUR 10,080.
(…) We request that the offer received, and the agreement reached with Antwerp be
further considered as loss of a transfer fee in assessing the compensation due to the
Claimant [i.e. EUR 200,000].
(…) it is fair and appropriate for Sofapaka to be awarded an additional 6 months salary,
i.e. EUR 3,270 in compensation for specificity of sport.”
32.
The Claimant further maintained that pursuant to art. 17.2 of the FIFA RSTP, “Tanta as the
Player’s new club be held jointly and severally liable to pay the compensation requested by
the Claimant herein.” as well as “Tanta be banned from registering any new players, either
nationally or internationally, for two entire and consecutive registration periods.”
The requests of relief of the Claimant were as follows:
“i. Find Mr. John Avire to have terminated his employment contract with Sofapaka Football
Club without just cause;
ii. Order Mr. John Avire to pay Sofapaka Football Club a minimum of EUR 224,390 in
compensation;
iii. Find Tanta Sporting Club to be jointly and severally liable to pay the above amount;
iv. Award interest on (ii) above at 5% p.a. with effect from 8th July 2019 until full and final
payment;
v. Ban Tanta Sporting Club from registering any new players, either nationally or
internationally for two entire and consecutive registration periods;
vi. Award Sofapaka Football Club the costs of this suit;
vii. Grant any further or other relief that this Honourable Chamber may deem fit.”
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REF FPSD-2324
b.
Reply of the Respondent I and Respondent II
33.
Despite having been invited to do so, the Respondent I and the Respondent II did not
provide their answer to the Claimant’s claim.
III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
Competence and applicable legal framework
34.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or
DRC) analysed whether it was competent to deal with the case at hand. In this respect, it
took note that the present matter was presented to FIFA on 19 April 2021 and submitted
for decision on 1 July 2021. Taking into account the wording of art. 21 of the January 2021
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.
35.
Subsequently, the Chamber 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) of the Regulations
on the Status and Transfer of Players (edition February 2021), the Dispute Resolution
Chamber is competent to deal with the matter at stake, which concerns a dispute between
a Kenyan club, a Kenyan player and an Egyptian club in relation to the maintenance of
contractual stability where there has been an ITC request.
36.
Subsequently, 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 Player (edition February 2021),
and considering that the present claim was lodged on 19 April 2021, the February 2021
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b.
Burden of proof
37.
The Chamber 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 stressed the
wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties.
38.
In this respect, the Chamber 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
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pertaining to the application of the Regulations, any documentation or evidence generated
or contained in TMS.
c.
39.
Merits of the dispute
The competence of the DRC and the applicable regulations having been established, the
DRC entered into the merits of the dispute. In this respect, the DRC started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC 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.
i. Main legal discussion and considerations
40.
The foregoing having been established, the Chamber moved to the substance of the matter
and took note of the fact that the Claimant strongly disputes whether the player had just
cause to terminate the contract.
41.
In this context, the Chamber firstly noted that the Claimant and the player entered into an
employment contract valid as of 15 November 2018 until 30 December 2020, which
entitled the Respondent I to a monthly salary of KSH 80,000.
42.
The DRC also wished to refer to the fact that it was undisputed that at the date of the
termination of the contract by the Respondent I, on 7 July 2019, the latter also put the
Claimant in default of payment of his monthly salaries of April, May and June 2019. These
salaries were eventually paid by the Claimant on 11 July 2019.
43.
To this end, the Chamber highlighted that the event at the centre of the dispute pertain to
the fact that, as argued by the Claimant, the player had not followed the FIFA Regulations
to unilaterally terminate the contract. In particular, the Claimant considered that the player
should have granted it a minimum of 15 days to remedy its default, before he could
terminate the contract with just cause as per the FIFA Regulations.
44.
In this respect, and moving into the issue of the termination, the DRC further noted that it
stood undisputed that the club had defaulted in the payment of at least two monthly
salaries of the player. The club confirmed this and did not argue that these payments were
performed in a timely fashion .
45.
The DRC was observant of the argumentation by the Claimant that art. 14bis of the
Regulations cannot apply to the case at hand and turned its attention to the absence of a
default notice sent by the player to the Claimant.
46.
In this respect, the DRC recalled art. 14 of the Regulations, which states that a contract may
be terminated by either party (club or player) without legal consequences of any kind,
provided there is just cause for the termination and it underlined that whether there
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is indeed just cause for the early termination of a contract signed between a professional
player and a club must be assessed in consideration of all the specific circumstances of the
individual case.
47.
For the sake of completeness, the DRC wished to underline that in several awards, the Court
of Arbitration for Sport (CAS) has drawn a parallel between the concept of “just cause” as
defined in art. 14 of the Regulations and the concept of “good cause” included in art.
337(2) of the Swiss Code of Obligations (SCO). In these instances reference to art. 337(2)
SCO as recourse to Swiss law is warranted on a subsidiary basis in order to interpret the
scope and ambit of “just cause”. Good cause (and thus just cause) to lawfully terminate an
employment contract exists when the fundamental terms and conditions which formed the
basis of the contractual arrangement are no longer respected by one of the parties.
48.
In this regard, the DRC emphasized that, such as in the case at hand, outstanding salaries
is the most common reason for a professional player to terminate a contract with a club
and that in such situation, art. 14bis of the Regulations represents a reaction to the
persistent malpractice of some clubs failing to make payments on time.
49.
Furthermore, the DRC deemed important to clarify that art. 14bis of the Regulations makes
clear that if a club unlawfully fails to pay a player two monthly salary payments, or fails to
make the payments on time, the player will automatically be deemed to have just cause to
terminate his contract provided certain formal conditions are met. It, in fact, establishes an
explicit regulatory presumption that failure to make at least two monthly salary payments
without legitimate grounds is such a serious breach of contract that it usually justifies the
immediate unilateral termination of the contract by the player.
50.
In continuation, the DRC recalled that the jurisprudence related to art. 14bis of the FIFA
Regulations consistently maintains that notification of default must have been issued for a
player to have just cause. However, it added that, the absence of a default notice has not
been considered sufficient grounds for preventing a player from invoking just cause when
terminating his contract. In other words, the majority of the members of the Chamber, in
the present case, considered that the duty of the player to issue a reminder or a warning
(default notice) to the Claimant was not absolute.
51.
Bearing in mind the above considerations, the DRC agreed with the Claimant’s
argumentation regarding the failure of the player to put the Claimant in default before
terminating the contract, as the preconditions of art. 14bis of the Regulations were not
met. However, the Chamber by a majority decision came to the conclusion that the
termination of the contract by the player can be recognised under the scope of article 14
par. 1 of the Regulations and, therefore, with just cause.
52.
Based on the foregoing, the majority of the members of the Chamber decided that the
player had just cause to terminate the contract and concluded its deliberations by rejecting
the claim of the Claimant.
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d.
Costs
53.
The Chamber 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 Chamber decided that no procedural
costs were to be imposed on the parties.
54.
Likewise and for the sake of completeness, the Chamber recalled the contents of art. 18
par. 4 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
IV. DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant, Sofapaka Football Club, is rejected.
2.
This decision is rendered without costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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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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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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