Dispute Resolution Chamber
Texto da decisão
REF 20-00885
Decision of the
Dispute Resolution Chamber
passed on 6 May 2021
regarding an employment-related dispute concerning the player Christofer David
COMPOSITION:
Omar Ongaro (Italy), Deputy Chairman
Angela Collins (Australia), member
Stefano La Porta (Italy), member
CLAIMANT:
Christofer David, Netherlands
RESPONDENT:
Cape Town SC, South Africa
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I.
Facts
1.
On 18 February 2019, the parties signed an employment contract valid as from 20 February 2019
and with the following expiration dates:
“Date of Termination without Option: 30th June 2019
Date of Termination with Option: 30th June 2021
The contract stipulated the following financial terms
Remuneration:
2018/19 Season (20th February 2019 to 3O1b June 2019)
Gross remuneration for this Period : R640 000 (six hundred and forty thousand rand)
Payable as follows :
R 240 000 on signature of contract and successful player registration with the PSL.
R133 333 - End March 2019
R 133 333 - End April 2019
R 133 334 - End May 2019
The Player will receive match bonuses as per all other Players.
Option Years :
2019/2020 Season (1st July 2019 to 30th June 2020)
Gross monthly remuneration: R 160 000
2020/2021 Season (1st July 2020 to 30th June 2021)
Gross monthly remuneration: R 186 667 from 1st July 2020 to 30th June 2021.”
2.
The contract further stipulated the following:
“Duties:
To promote the interest of Cape Town City Sporting Club (Pty) Ltd as a manager both on and
off the field and to comply with all the terms and conditions set out in this letter of
appointment, the Cape Town City Sporting Club (Pty) Ltd Employee Handbook (which you have
already signed) and the NSL Constitution and Rules the content of which you warrant you are
aware of and understand or will use your best endeavours to understand
“General:
This letter of appointment, the Cape Town Sporting Club (Pty) Ltd Employee Handbook, the
standard NSL contract you have signed for registration purposes and the Constitution and Rules
of the NSL comprise your contract of employment. In the event of contradiction between these
documents this letter of appointment read with the handbook will prevail save in the event
that such an interpretation would be unlawful in consequences of the Constitution and Rules
of the NSL (“the football rules”) in which event the offending terms read with the football rules
will apply. Each and every term in the handbook is important and material and will apply to
you unless expressly excluded in this letter of appointment or the handbook itself.”
All of these documents are available to you and you should ask for them if you do not have
them, as they are essential terms of your contract of employment, which you must read and
understand. In particular, you warrant that you understand the nature of the transfer system
detailed in the football rules and that in the event of your leaving Cape Town City Sporting
Club (Pty) Ltd while in contract, Cape Town City Sporting Club (Pty) Ltd would be entitled to a
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transfer fee from any club wishing to sign you, which you will assist Cape Town City Sporting
Club (Pty) Ltd to secure and/or procure before entering into a contract with any new club.”
3.
Furthermore, the “Employee Handbook” of “Cape Town Sporting Club” (Reg. 2016/158548/07)
included, inter alia, the following provisions:
“7. This Handbook applies to all Cape Town City Football Club employees including but not
limited to professional and other footballers (including those who graduate from the Cape
Town City Football Club Youth Development Academy) coaches, and members of the support
staff, insofar as the
provisions of the Handbook are not inconsistent with the provisions of the League
Constitution and Rules or the laws of the Republic of South Africa.
(…)
DISPUTES AND DIFFERENCES
160. Any controversy, claim, dispute or difference, of whatsoever nature as between Cape
Town City Football Club and an employee or employees (including professional footballers,
coaches, and members of the technical team) and particularly any that arise from
employment, disciplinary measures or sanctions, and/or dismissal or alleged breaches of the
employment contract, will be dealt with, firstly, in accordance with the grievance procedure
contained in this Handbook. Should the dispute remain unresolved after the grievance process
has been completed the dispute must be referred:160.1 If the employee is a professional footballer, coach, or other registered official to the
appropriate League tribunal being the Dispute Resolution Chamber and then in compliance
with the League Rules as promulgated from time to time. The Dispute Resolution Chamber is
a specialised tribunal equipped to deal with football disputes with due regard to the
specialised nature of the sport and Cape Town City Football Club and each of its employees
warrant and undertake that they will not refer disputes to any other tribunals of whatsoever
nature save in the event of the Dispute Resolution Chamber not having jurisdiction over the
issue in dispute.
4.
On 18 March 2019, the club sent a correspondence to the player with the following contents:
“We hereby wish to confirm that we are exercising our option to extend your employment with
Cape Town City FC as stipulated in the signed contract (…)
The termination date will thus be the 30th June 2021”.
5.
On 23 April 2020, the club sent a “Mutual Termination Proposal” to the player, indicating, inter
alia, the following:
“The current dire economic situation due to Covid-19 and the volatile nature of the club's
business have compelled management to review its organizational structure and employee
requirements.
(...)
1. During a meeting with the Head Coach and the technical staff, concerns about your
performance have been raised.
(…)
2. The club does not intend to register you as a foreign player for the 2020/ 2021 season;
(…)
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On a without prejudice basis, the club is prepared to release you from your duties with
immediate effect and pay you an amount equivalent to 3 months' salary, the details of which
will be elaborated in a mutual termination agreement.
This without prejudice this offer remains open for acceptance until 12h00 on Friday, 24 April
2020, failing which, the club has no option but to reduce your salary by 70% effective
immediately for the foreseeable future due to COVID 19.”
6.
On the same date of 23 April 2020, the club sent a “Notice of Salary Reductions” to “All
employees” stating that, in view of the economic crisis provoked by the COVID 19 pandemic,
“the Club has already embarked upon several cost cutting measures, but there is simply no
manner in which salary reductions can be avoided, and with it, the issue of possible
retrenchments is regrettably contemplated.”
7.
On 24 April 2020, the legal representative of the player sent the following letter to the club:
“(…) I refer to your letter dated 23 April 2020.
(…)
For the sake of clarity, my client does not agree with anything that has been stated in your
letter and what has been presented as a proposal.
(…)
I look forward to discuss with you on behalf of my client and to find an amicable solution to
this issue. We understand that the club is under some difficulties but these difficulties should
not be to the absolute detriment of my client”.
8. On 24 April 2020, the club replied to the letter of the player as follows:
“It has come to our attention that you have not been acting within the best interest of the club.
Accordingly, the club has decided to convene a Disciplinary Hearing to deal with certain issues
raised and give you an opportunity to respond to these allegations.”
9. On 27 April 2020, the player replied to the club’s previous letter rejecting the disciplinary
procedure initiated by the club.
10. On 4 May 2020, the club sent a notice to all players, requiring a “30% [salary] cut] in view of
the COVID-19 pandemic.”
11. On 5 May 2020, the club sent a notice to the player imposing the following disciplinary
sanctions:
1) A final written warning for the offences. found guilty as per the Employee Handbook
pursuant to Art 125 and 133.3 and
2) The imposing of a monetary fine equal to the amount of 15% of your total gross monthly
salary in pursuance to Art 129.
12. On 7 May 2020, the club directed a correspondence to the player, offering a settlement before
11 May 2020.
13. On 1 June 2020, the club terminated the contract with a letter with the following contents:
“Our various letters from April 2020 (…) and our subsequent consultations held on 20th and
29th of May refers.
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We confirm that, after having consulted you on the proposed retrenchment, having taken into
consideration your representations herein, the company has decided that you be retrenched,
and that payment of severance pay and all other statutory monies due to you be paid lo you.
We further confirm that you have received your monthly salary coupled with your full benefits
for April 2020 and now included with this payment for May 2020, despite not working. You will
further receive one 1 month's notice pay as prescribed by the company’s employee handbook
which is in excess of the statutory amount you are entitled to. The amount which will be paid
to you is R 227 248 (two hundred and twenty seven thousand two hundred and forty eight rand
only), which is for May 2020 including the vehicle allowance and one month's notice pay for
June 2020 including accommodation and vehicle allowances. As mentioned this is in excess of
the severance pay pursuant to statutory requirements of one week's pay for each completed
year of ongoing service.
We therefore hereby give notice of the termination of your employment with effect from 1st
June 2020. As stipulated above, you will be paid one month's notice in lieu of the termination
and your contract will officially terminate on 30th June 2020.
As advised, we will assist you in any way we can to obtain alternate employment and will favour
you with a Ul19 form indicating that you have been retrenched. We will retain your CV and you
will be considered for possible vacancies in future.
Please note that this offer is made in full and final settlement of all claims (…)
INFORMATION CONCERNING THE SOUTH AFRICAN NDRC
14. During the proceedings, the Respondent provided information related to the Dispute
Resolution Chamber of the National Soccer League of South Africa.
15. In particular, the Respondent provided a copy of the NSL Handbook (as adopted on 4 July 2019)
which, inter alia, comprised the following articles:
“23.1.1. The Dispute Resolution Chamber is an independent arbitration tribunal vested with the
authority to adjudicate disputes other than those of a disciplinary nature or which are status
matters arising from international transfers.
23.1.2. An equal number of panellists - including two co-chairpersons – are nominated by
Member Clubs and the recognized players association– and appointed to adjudicate disputes in
the event of their meeting the requirements of this Clause.
23.1.5. The Dispute Resolution Chamber will be composed of the following members, who will
serve a two-year renewable mandate:–
23.1.5.1. two co-chairpersons nominated by the players’ association and Member Clubs and
whose suitability will be confirmed by the President of the Bar Council for Gauteng; and
23.1.5.2. 4 (four) player nominated panellists who are appointed on the proposal of the players’
association; and
23.1.5.3. 4 (four) panellists who are appointed on the proposal of the Member Clubs.
(…)
23.1.9. No panellist may be a member of an executive body of SAFA, the League, FIFPro, or the
players’ association.
23.2.1. The Dispute Resolution Chamber will have jurisdiction over, inter alia, determination of
the following issues or disputes:–
(…)
23.2.1.2. employment-related disputes between a Member Club and a Player;
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(…)
23.3.4. The detailed procedures for the referral and resolution of disputes before the Dispute
Resolution Chamber will be set out in the League Rules. The Dispute Resolution Chamber will
ensure that parties fundamental procedural rights are guaranteed including the right to be
heard, the right to equal treatment, the right to examine Dispute Resolution Chamber file, have
evidence taken, and received a reasoned decision.
23.4.2. For the avoidance of doubt rulings and/or awards of the Dispute Resolution Chamber
will only be subject to appeal or review before the SAFA Arbitration Tribunal.”
SUBSEQUENT CONTRACTUAL SITUATION OF THE PLAYER
16. Following the information contained in the TMS, the player concluded an employment
contract with the German club, FC Wurzburger Kickers, valid as from 13 October 2020 until 30
June 2021.
17. According to art. C.1 of the contract, the player was entitled to a monthly salary in the
amount of EUR 11,000 if the club player in the 2. Bundesliga, and of EUR 7,000 if it player in
the 3. Liga.
POSITION OF THE CLAIMANT
18. On 22 June 2020, the player lodged a claim before FIFA and requested the payment of the
following:
- ZAR 2,400,004 gross as compensation for breach of contract corresponding to the residual
value of the contract;
- ZAR 257,000 as additional remuneration for accommodation and car due as from June 2020
until June 2021,
- Costs of one flight ticket amounting to R 24,818.30,
5% interest p.a. as from the moment the aforementioned amounts become due,
- Procedural and legal costs,
- Sporting sanctions on the club.
19.
According to the player, “the club pressured [him] to accept the conditions as proposed by the
club by making him go through a procedure with many bureaucratic hurdles and under a
constant threat of issues such as reducing his salary, not registering him as a professional player
and focusing on the (in the chairman's perspective) poor performance of the player. After this
very stressful and generally unpleasant process, during which the player has continued to fulfil
his obligations deriving from his employment contract and continued to train, the club
terminated the player's employment contract unilaterally without a just cause on 1 June 2020.”
20.
As to the applicable law, the Claimant considered that it “is not appropriate to apply the
principles of South African law to the termination of the employment contract but rather apply
the FIFA regulations, the general principles of law and, where existing, the FIFA DRC's wellestablished jurisprudence, and referred to the decision of the DRC of 10 Auqust 2018, no.
08181557.“
POSITION OF THE RESPONDENT
In its reply to the claim, the Respondent contested the competence of FIFA on the basis of the
clauses referred to as “Duties” and “General”
21.
22.
In particular, the Respondent explained that said clauses refer to the “Employee Handbook”,
which for its part regulates the dispute-settlement procedure.
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23.
In the opinion of the Respondent, the player was aware of the fact that the “Employee
Handbook” is a part of the employment agreement.
24.
As to the substance, the Respondent considered that the allegations of the player have no legal
basis and that his dismissal was fair and with just cause.
ADDITIONAL COMMENTS ON NDRC
The player provided additional comments concerning the NDRC.
25.
26.
In particular, the player argued that the Respondent failed to meet its burden of proof to
establish that an independent arbitration tribunal guaranteeing fair proceedings and
respecting the principle of equal representation of players and clubs has been established.
27.
The player argued that “even if it is considered that based on the documents provided by the
Respondent it can be established that the NSL DRC complies with the relevant criteria, quod
non, this would become completely irrelevant as it cannot be determined that the appeal
bodies do not also constitute independent and impartial tribunals guaranteeing fair
proceedings and respecting the principle of equal representation of players and clubs.”
II.
Considerations of the Dispute Resolution Chamber
1.
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.
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.
2.
Subsequently, the Dispute Resolution Chamber referred to art. 3 par. 1 of the Procedural
Rules and emphasised 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, the Dispute Resolution
Chamber is competent to deal with matters which concern employment-related disputes
with an international dimension between players and clubs. As a result, the DRC would be,
in principle, competent to deal with the present dispute between a Dutch player and a South
African club.
3.
However, on this point, the DRC noted that the Respondent disputed the jurisdiction of FIFA,
arguing that the matter shall be referred to the dispute resolution bodies of South Africa.
4.
Taking into account all the above, the Chamber emphasised that in accordance with art. 22
lit. b) of the Regulations on the Status and Transfer of Players, it is competent to deal with
a matter such as the one at hand, unless an independent arbitration tribunal, guaranteeing
fair proceedings and respecting the principle of equal representation of players and clubs,
has been established at national level within the framework of the association and/or a
collective bargaining agreement.
5.
While analysing whether it was competent to hear the present matter, the Dispute
Resolution Chamber considered that it should, first and foremost, analyse whether the
employment contract at the basis of the present dispute actually contained a jurisdiction
clause.
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6.
In this respect, the Chamber noted that the parties concluded an employment agreement
on 19 February 2019 which per se did not include a jurisdiction clause. However, the
Chamber observed that said contract, in its clauses labelled as “Duties” and “General”
referred to an “Employee Handbook” that was included as an ancillary agreement to the
employment relationship between the parties.
7.
In analysing the legal nature of the aforementioned “Employee Agreement”, the Chamber
noted that the contract, which was properly signed by the player, stipulated that said
document was “available to [the player]” and that he “should ask for [it] them if [he does]
not have [it], as [it is an] essential term(…) of [his] contract”.
8.
In view of the above, the Chamber considered that the player accepted the binding nature
of the Employee Handbook, and that consequently it shall be construed as part of the
employment contract.
9.
The foregoing being established, the Chamber observed that, as to the competence, the
Employee Handbook stipulated the following:
“160.1 If the employee is a professional footballer, coach, or other registered official to the
appropriate League tribunal being the Dispute Resolution Chamber and then in compliance
with the League Rules as promulgated from time to time. The Dispute Resolution Chamber
is a specialised tribunal equipped to deal with football disputes with due regard to the
specialised nature of the sport and Cape Town City Football Club and each of its employees
warrant and undertake that they will not refer disputes to any other tribunals of whatsoever
nature save in the event of the Dispute Resolution Chamber not having jurisdiction over the
issue in dispute.”
10.
Consequently, and considering the unambiguous wording of the aforementioned provision,
the Chamber understood that the parties agreed upon the jurisdiction of the Dispute
Resolution Chamber of the NSL (NSL DRC).
11.
Thereafter, the Chamber went on to examine whether the aforementioned disputeresolution body complies with the principles outlined in art. 22 b) of the Regulations on the
Status and Transfer of Player, i.e. whether the independent national arbitration tribunal
guarantees fair proceedings and respects the principle of equal representation of players
and clubs. With regard to the standards to be imposed on an independent arbitration
tribunal guaranteeing fair proceedings, the members of the Chamber referred to the FIFA
Circular no. 1010 dated 20 December 2005. Equally, the Chamber referred to the principles
contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations,
which came into force on 1 January 2008.
12.
In this respect, the Dispute Resolution Chamber reminded the parties of the contents of art.
12 par. 3 of the Procedural Rules, according to which “any party claiming a right on the basis
of an alleged fact shall carry the burden of proof”. As a result, it would be up to the party
challenging the competence of FIFA, to provide all the necessary evidence in support of its
allegations.
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13.
In this respect, the Chamber noted that the club provided a copy of the NSL Handbook (as
adopted on 4 July 2019) and that said document established, inter alia, that “the Dispute
Resolution Chamber is an independent arbitration tribunal” composed of “an equal number
of panellists - including two co-chairpersons – are nominated by Member Clubs and the
recognized players association”. The Chamber further noted that said document established
that said decision-making body is competent to deal with “employment-related disputes
between a Member Club and a Player”.
14.
In view of the aforementioned provisions, the Chamber considered that, prima facie, the
principle of equal representation of players and clubs seem to be met.
15.
However, the Chamber wished to emphasize that the minimum standards outlined in art 22
b) of the Regulations on the Status and Transfer of Players are also applicable to any appeal
body that may have been established under the auspices of a Member association as a
possible legal remedy against a decision rendered by a National Dispute Resolution Chamber
(NDRC). Indeed, the Chamber considered that, in order to effectively guarantee the
procedural rights of the parties, the minimum standards outlined in art 22 b) of the
Regulations on the Status and Transfer of Players need to be complied with a both
jurisdictional levels (first instance and appeal body established under the auspices of the
Member Association).
16.
In this regard, the Chamber observed that the “Employee Handbook” unambiguously stated
that “for the avoidance of doubt rulings and/or awards of the Dispute Resolution Chamber
will only be subject to appeal or review before the SAFA Arbitration Tribunal (23.4.2.)”
17.
However, in relation to SAFA Arbitration Tribunal, and referring once again to art. 12 par 3
of the Procedural Rules, and after carefully analysing the documentation provided during
the course of the proceedings, the Chamber noted that no evidence was provided as to the
composition of the SAFA Arbitration Tribunal. As a result, the Chamber considered that it
was not in a position to establish whether said body complies with the minimum standards
outlined in art 22 b) of the Regulations on the Status and Transfer of Players.
18.
As a result, and considering that the Respondent was unable to prove that the local disputeresolution system is compliant with the minimum standards outlined in art 22 b) of the
Regulations on the Status and Transfer of Players, the DRC unanimously established that it
is competent to deal with the present matter.
19.
In continuation, the Dispute Resolution Chamber analysed which edition of the Regulations
of the Status and Transfer of Players should be applicable to the present matter. In this
respect, the Dispute Resolution Chamber confirmed that in accordance with art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Players, and considering the date
when the claim was lodged, the June 2020 edition of the aforementioned regulations
(hereinafter: the Regulations) is applicable to the matter at hand.
20.
With the above having been established, the Dispute Resolution Chamber entered into the
substance of the matter. In doing so, it started to acknowledge the facts of the case as well
as the documents contained in the file. However, the Dispute Resolution Chamber
emphasized that in the following considerations it will refer only to facts, arguments and
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documentary evidence which it considered pertinent for the assessment of the matter at
hand.
21.
First of all, the Chamber noted that, on 18 February 2019, the parties signed an employment
contract valid, in principle, until from 30 June 2020, but was extended until 30 June 2021.
22.
Subsequently, the Chamber observed that the player lodged a claim before FIFA for breach
of contract without just cause, noting that the club terminated the contract on 1 June 2020.
23.
Conversely, the Chamber took note of the position of the Respondent, which fundamentally
did not contest said termination.
24.
In view of the above, the Chamber understood that the main legal issue at stake is to
determine whether the Respondent had any just cause to unilaterally terminate the contract
on 1 June 2020.
25.
In this respect, the Chamber was eager to emphasise that only a breach or misconduct which
is of a certain severity justifies the termination of a contract. 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 terminating an employment contract. A premature termination of an employment
contract can only ever be an ultima ratio measure.
26.
In this respect, the Chamber recalled the context of the events prior to the termination letter
of 1 June 2020. In particular, the Chamber noted that, first of all, the club confirmed on 18
March 2019 its will to extend the contract until 30 June 2021. The Chamber then observed
that the parties engaged in a series of negotiations in April 2020 to reduce the player’s
remuneration due to the outbreak of the COVID-19 pandemic and its subsequent economic
effects. However, and before any agreement was reached between the parties, the club
terminated the contract unilaterally on 1 June 2020, with an official date of termination
established “on 30th June 2020”.
27.
In relation to said termination, the Chamber analysed the contents of the letter dated 1 June
2020, and noted that the club failed to provide any substantial reason in order to justify its
unilateral decision to terminate the contract. As a result, the Chamber unanimously agreed
that the contract was terminated without just cause.
28.
In view of all the aforementioned considerations, having concluded that the Respondent
has breached the contract two without just cause, the Chamber concurred that the
Respondent and is liable to pay to the Claimant compensation for the early termination of
contract without just cause.
29.
However, before entering into the calculation of the payable compensation, the Chamber
observed whether there was any outstanding payment towards the player as of the official
date of termination, i.e. 30 June 2020.
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30.
In this respect, after duly examining the information on file, the Chamber understood that
there was no evidence that the player was remunerated for the month of June, i.e. for the
amount of ZAR 160,000.
31.
Consequently, in strict application of the principle of pacta sunt servanda, the Dispute
Resolution Chamber established that the Respondent has to pay to the Claimant, the total
outstanding amount of ZAR 160,000, as indicated above.
32.
In addition, the Chamber noted that the player requested the payment of an additional
remuneration for accommodation and car due as from June 2020 until June 2021.
33.
In this respect, the Chamber noted that, in its notice of 1 June 2020, the Club acknowledged
that it will pay the “accommodation and vehicle allowances”
34.
Consequently, given that the player sufficiently justified the incurred costs and that the club
acknowledge that he was entitled to receive the corresponding amounts, the Chamber
established that the Respondent shall pay to the Claimant the amount of ZAR 257,000 as
accommodation and vehicle allowance.
35.
Moreover, taking into account the request of the Claimant as well as the longstanding
jurisprudence in this regard, the Dispute Resolution Chamber decided to award 5% interest
p.a. over said outstanding amount as from the due dates.
36.
Thereafter, having established that the Respondent is to be held liable for the early
termination of the employment contract without just cause, the Chamber focused its
attention on the consequences of such termination. Taking into consideration art. 17 par. 1
of the Regulations, the Chamber decided that the Claimant is entitled to receive from the
Respondent an amount of money as compensation for breach of contract. 19. According to
art. 17 par. 1 of the Regulations, the amount of compensation for breach of contract 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 Claimant 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.
37.
In application of the relevant provision, the Chamber held that it first of all had to clarify as
to whether the 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. The Chamber established that no such compensation clause
was included in the employment contract at the basis of the matter at stake.
38.
Therefore, in order to evaluate the compensation to be paid by the Respondent, the
members of the Chamber took into account, inter alia, in line with art. 17 par. 1 of the
Regulations, the remuneration due to the Claimant in accordance with the contract, the
time remaining on the same contract as well as the professional situation of the Claimant
after the early termination which occurred.
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39.
In this respect, the Chamber noted that, from 1 July 2020 until 30 June 2021, the player
would have earned the amount of ZAR 2,250,004 (i.e. 186,667*12).
40.
Consequently, the Chamber concluded that the amount of ZAR 2,250,004 serves as the basis
for the final determination of the amount of compensation for breach of contract in the
case at hand.
41.
In continuation, the Chamber verified as to whether the Claimant 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 DRC, 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.
In this respect, the Chamber noted that, following the information contained in the TMS,
the player concluded an employment contract with the German club, FC Wurzburger
Kickers, valid as from 13 October 2020 until 30 June 2021. The Chamber also noted that,
according to art. C.1 of the contract, the player was entitled to a monthly salary in the
amount of EUR 11,000 if the club played in the 2. Bundesliga, and of EUR 7,000 if it player
in the 3. Liga. Hence, the Chamber understood that, from 13 October 2020 until 30 June
2021, the player would have earned the following: 11,000*8,5 (mid-October 2020 to 30
June 2020) = EUR 93,500, equivalent to approx. ZAR 1,710,000.
43.
In view of the above, the Chamber understood that the mitigated compensation would
amount to ZAR 540,004 (i.e. ZAR 2,250,004- ZAR 1,710,000).
44.
Consequently, on account of all of the above-mentioned considerations, the Chamber
decided that the Respondent must pay the amount of ZAR 540,004 to the Claimant as
compensation for breach of contract.
45.
In addition, taking into account the Claimant’s request, the Chamber decided that the
Respondent must pay to the Claimant interest of 5% p.a. on the amount of compensation
as of the date on which the claim was lodged, until the date of effective payment.
46.
Furthermore, taking into account the previous considerations, the Dispute Resolution
Chamber 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.
47.
In this regard, the Dispute Resolution Chamber pointed out 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.
48.
Therefore, bearing in mind the above, the Dispute Resolution Chamber 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, following the notification of the present decision,
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communicates the relevant bank details to the Respondent, 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.
49.
Finally, the Dispute Resolution Chamber 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. 24bis par. 3 of the Regulations.
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Christofer David, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, Cape Town SC, has to pay to the Claimant, the following amounts:
- ZAR 160,000 as outstanding remuneration (salary of June 2020), plus 5% interest p.a.
as from 1 July 2020 until the date of effective payment;
- ZAR 257,000, as outstanding remuneration (accommodation and vehicle allowance),
plus 5% interest p.a. as from 1 July 2020;
- ZAR 540,004 as compensation for breach of contract without just cause, plus 5%
interest p.a. as from 22 June 2020.
4.
Any further claims of the Claimant are rejected.
5.
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.
6.
The Respondent shall provide evidence of payment of the due amount in accordance with
this decision to [email protected], duly translated, if applicable, into one of the official
FIFA languages (English, French, German, Spanish).
7.
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.
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:
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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