Labour Disputes
Texto da decisão
REF. FPSD-10685
Decision of the
Dispute Resolution Chamber
passed on 16 August 2023
regarding an employment-related dispute concerning the player Abdi Hassan
Banda
BY:
Roy Vermeer (the Netherlands)
CLAIMANT:
Abdi Hassan Banda, Tanzania
Represented by Eben Koen
RESPONDENT:
Chippa United FC, South Africa
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REF. FPSD-10685
I. Facts of the case
1.
On 1 July 2022, the Tanzanian player, Abdi Hassan Banda (hereinafter: Claimant or player)
and the South African club, Chippa United FC (hereinafter: Respondent or club) concluded
an employment contract (hereinafter: contract) valid as from 1 July 2022 until 30 June 2024.
2.
According to the contract, the Respondent undertook to pay the Claimant the following
remuneration:
“FOR THE CONTRACT PERIOD: 1ST JULY 2022 TO 30 JUNE 2023
The Club shall pay the Claimant, monthly in arrears, on the last day of every month, a gross
amount of R50 000.00 (Fifty Thousand South African Rand);
The Club shall pay the Claimant an accommodation allowance, monthly in arrears, on the last
day of every month, a gross amount of R6000.00 (Six Thousand South African Rand);
The Club shall provide the Claimant with Four return flight tickets from Tanzania to Port
Elizabeth, South Africa during the season
FOR THE CONTRACT PERIOD: 1ST JULY 2023 TO 30 JUNE 2024
The Club shall pay the Claimant, monthly in arrears, on the last day of every month, a gross
amount of R55 000.00 (Fifty-Five Thousand South African Rand);
The Club shall pay the Claimant an accommodation allowance, monthly in arrears, on the last
day of every month, a gross amount of R6000.00 (Six Thousand South African Rand);
The Club shall provide the Footballer with Four return flight tickets from Tanzania to Port
Elizabeth, South Africa during the season”
3.
Clause 18.2 of the contract, inter alia, stipulates:
“Accordingly, in the event that the club terminates this agreement, prior to the termination date,
the club will pay the footballer compensation equal to 1 months’ salary which the footballer
hereby accepts in full and final settlement of any and all claims of whatsoever nature he might
otherwise have had against the club consequent upon the termination of his employment and
the club will provide the footballer with a clearance certificate immediately upon request.”
4.
On 14 June 2023, the Respondent, sent a termination notice to the player in accordance
with clause 18.2 of the contract, inter alia, indicating that the Respondent has elected to
terminate the contract with effect from 15 June 2023 and that it would pay the player an
amount equal to your one-month salary for June 2023.
5.
The Claimant confirmed that after said termination he had remained unemployed.
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REF. FPSD-10685
II. Proceedings before FIFA
6.
On 26 June 2023, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Position of the Claimant
7.
The requests for relief of the Claimant, were the following:
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“Order the Respondent to pay the Claimant the amount of ZAR 856 545.00, which amount
represents the balance of the Employment Agreement, and which amount is still outstanding;
Impose sporting sanctions on Respondent pursuant to Art. 12bis of the FIFA RSTP;
Determine that an interest rate of 5% per annum shall apply over the total amounts due by
Respondent, as from the day immediately after the date in which each of the amounts due
became payable until the date of effective payment; and
Order Respondent to bear any and all legal costs and expenses incurred by the Claimant in
connection with the present claim.”
-
-
8.
In his claim, the Claimant argued that the Respondent had terminated the contract without
just cause and should therefore bear the consequences of the unjustified breach.
b. Position of the club
9.
Notwithstanding the fact that the Respondent was invited to provide its position to the
Claimant’s claim it failed to do so.
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REF. FPSD-10685
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
10. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as Single 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 26 June 2023
and submitted for decision on 16 August 2023. Taking into account the wording of art. 34
of the March 2023 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.
11. 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 (May 2023 edition), the Single Judge is
competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a player from Tanzania and a club from
South Africa.
12. Subsequently, the Single 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 Players (May 2023 edition), and
considering that the present claim was lodged on 26 June 2023, the May 2023 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
13. 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 he 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
14. His 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 he will refer only to the facts, arguments and documentary evidence, which
he considered pertinent for the assessment of the matter at hand.
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REF. FPSD-10685
i. Main legal discussion and considerations
15. The foregoing having been established; the Single Judge moved to the substance of the
matter and took note of the fact that the Claimant assert that the Respondent as per its
notice, dated 14 June 2023 terminated his contract without just cause, moreover that it
failed to comply with its contractual obligations.
16. In this context, the Single Judge acknowledged that his task was to determine, whether the
contract was terminated by the Respondent with or without just cause and to decide on
the consequences thereof.
17. The Single Judge noted that – after having been provided with the claim of the Claimant –
the Respondent failed to present its response. By not presenting its position to the claim,
the Single Judge was of the opinion that the Respondent renounced its right of defence
and, thus, accepted the allegations of the Claimant.
18. Furthermore, as a consequence of the aforementioned consideration, the Single Judge
expressed that he 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.
19. In this context, the Single Judge acknowledged that he had to examine if any reasons were
put forward by the club in its termination notice of 14 June 2023 as to the purpose for the
termination, and whether such reasons could justify the termination of the contract in the
present matter.
20. The Single Judge noted that the Claimant highlighted that the Respondent terminated his
contract on the basis of clause 18.2 of the contract which, inter alia, stipulates: “Accordingly, in
the event that the club terminates this agreement, prior to the termination date, the club will
pay the footballer compensation equal to 1 months’ salary which the footballer hereby accepts
in full and final settlement of any and all claims of whatsoever nature he might otherwise have
had against the club consequent upon the termination of his employment and the club will
provide the footballer with a clearance certificate immediately upon request.”
21. After a due analysis of the aforesaid contractual provision, the Single Judge concluded that
the clause violates contractual stability as well as not complying with the criterion of
proportionality.
22. In this respect, the Single Judge referred to his well-established jurisprudence and
emphasised that, as a general rule, only a breach or misconduct which is of a certain
severity justifies a premature termination. In other words, only when there are objective
criteria which do not reasonably permit to expect a continuation of the employment
relationship between the parties, a contract may be terminated prematurely. Hence, if
there are more lenient measures which can be taken in order for an employer to ensure
the employee’s fulfilment of his contractual duties, such measures must be taken before
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REF. FPSD-10685
terminating an employment contract. A premature termination of an employment contract
can only ever be an ultima ratio measure.
23. In view of all the aforementioned, the Single Judge held that club failed to provide a
justifiable reason for terminating the contract, hence he was of the firm opinion that the
Respondent had unilaterally terminated the contract without just cause on 14 June 2023
and should therefore be held liable for the consequences of such termination.
24. Moreover, the Single Judge highlighted that in the case at hand the Respondent bore the
burden of proving that it indeed complied with the financial terms of the contract
concluded between the parties, which it failed to do.
25. Taking the above into account and the documentation presented by the Claimant, the
Single Judge decided that the Respondent had failed to fulfil its contractually agreed
obligations and is thus to be held liable for the consequences thereof.
ii. Consequences
26. Having stated the above, the Single Judge turned his attention to the question of the
consequences of such unjustified breach of contract committed by the club.
27. The Single Judge concluded that the club must fulfil its obligations as per the employment
contract up until the date of termination and in accordance with the general legal principle
of “pacta sunt servanda”.
28. However, before entering into the calculation of any payable compensation, the Single
Judge recalled that no outstanding remuneration were due to the player up until
termination of the contract.
29. Consequently, the Single Judge decided that the player shall be entitled to compensation
for breach of contract based on art. 17 par. 1 of the Regulations.
30. 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.
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REF. FPSD-10685
31. The Single Judge determined that the amount of compensation payable by the Respondent
to the Claimant had to be assessed in application of the parameters set out in art. 17 par.
1 of the Regulations. The Single Judge recalled that said provision provides for a nonexhaustive enumeration of criteria to be taken into consideration when calculating the
amount of compensation payable.
32. 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
until its term. Consequently, the Single Judge concluded that the amount of ZAR 788,000
(i.e. June 2023 at ZAR 56,000 and July until June 2024 at ZAR 61,000 per month) serves as
the basis for the determination of the amount of compensation for breach of contract.
33. In continuation, the Single Judge verified 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
Single Judge 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.
34. In this respect, the Single Judge noted that the player remained unemployed since the
unilateral termination of the contract.
35. The Single Judge referred to art. 17 par. 1 lit. ii) of the Regulations, according to which, in
case the player did not sign any new contract following the termination of his previous
contract, as a general rule, the compensation shall be equal to the residual value of the
contract that was prematurely terminated.
36. In this respect, the Single Judge decided to award the player compensation for breach of
contract in the amount of USD ZAR 788,000, i.e., ZAR 56,000 plus ZAR 61,000 times 12, as
the residual value of the contract.
37. Taking into consideration the player’s request as well as the constant practice of the Single
Judge in this regard, the latter decided to award the player interest on said compensation
at the rate of 5% p.a. as of 14 June 2023 until the date of effective payment.
38. Lastly, the Single Judge as per his jurisprudence decided that the player is also entitled to
a one-way flight ticket from South Africa to Tanzania, the value of which was determined
by FIFA Travel at ZAR 11,393.35 plus interest at a rate of 5% p.a. as of 14 June 2023 until the
date of effective payment.
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REF. FPSD-10685
iii. Compliance with monetary decisions
39. 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.
40. 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.
41. 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.
42. 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.
43. 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
44. 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 Single Judge decided that no procedural costs were to be
imposed on the parties.
45. 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.
46. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
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REF. FPSD-10685
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Abdi Hassan Banda, is partially accepted.
2.
The Respondent, Chippa United FC, must pay to the Claimant the following amount(s):
(a) ZAR 11,393.35 as outstanding amount plus 5% interest p.a. as from 14 June 2023 until
the date of effective payment
(b) ZAR 788,000 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 14 June 2023 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
5.
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 of the ban shall
be of up to 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.
6.
The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-10685
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 Governing the Football
Tribunal).
CONTACT INFORMATION
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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