Labour Disputes
Texto da decisão
REF FPSD-4024
Decision of the
Dispute Resolution Chamber
passed on 24 February 2022
regarding an employment-related dispute concerning the player Doxa Doxa
Gikanji
COMPOSITION:
HENDEL Clifford J. (USA), Deputy Chairperson
DE MEDINILLA Gonzalo (Spain), member
GUTIERREZ Jorge (Costa Rica), member
CLAIMANT:
Doxa Doxa Gikanji, Congo
Represented by Thomas Joseph Bodiong
RESPONDENT:
Simba SC, Tanzania
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REF FPSD-4024
I.
Facts of the case
1.
On 15 January 2021, the Congolese player Doxa Doxa Gikanji (hereinafter: the Claimant) and
the Tanzanian club Simba SC (hereinafter: the Respondent) concluded an employment
contract (hereinafter: the Contract).
2.
Art. 1.1 of the Contract reads as follows:
“The player’s net salary shall be United States Dollars (USD) Four Thousand (4,000) per month
effective from 1st February 2021.”
3.
Art. 1.3 of the Contract reads as follows:
“The duration of this contract shall be ONE LEAGUE SEASON effective from 1st February
2021, provided that the same may be renewed or extended subject to the absolute discretion
of the employer”.
4.
On 15 January 2021, the Respondent applied for the International Transfer Certificate (“ITC”).
5.
On 31 January 2021, the ITC was approved by the Congolese Football Association (“CFA”)
6.
On 27 August 2021, the Claimant sent a letter to the Respondent requesting his “release
letter”.
7.
On 29 August 2021, the Respondent sent a letter to the Claimant stating he was a “free
agent”.
II. Proceedings before FIFA
8.
On 18 October 2021, 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
9.
According to the Claimant, on 29 August 2021, the Respondent released the Claimant on
the grounds that he had not been registered; and without any legal reason.
10. The Claimant states that it reminded the Respondent of its obligations by a second
correspondence dated 6 October 2021.
11. The Claimant requests the DRC the following:
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“Order the payment of salaries to the applicant for a total amount of USD 48,000 by the
Tanzanian club SIMBA SPORTS CLUB COMPANY LIMITED with its registered office at PO BOX
15318. DAR ES SALAAM PLOT N ° 6 § 7 BLOCK, 8 NSIMBAZI / MCHIKISHI STREET DAR ES
SALAM - TANZANIA, E-mail: [email protected], with all the consequences of law
relating thereto;
Order him to pay the entire costs.”
b. Position of the Respondent
12. The Respondent replied to the claim on the following terms.
13. The Respondent states that it tried to complete the player’s registration with CAF system for
respective competition season. However, it discovered that the player had been registered
with another club for another CAF inter-club competition in the same season, and therefore
the registration with Simba was unsuccessful.
14. The Respondent underscores that despite several attempts to register the Claimant by 31
January 2021, it failed. The CAF system issued an error message stating that “the same player
was entered before in the same season”.
15. In the view of the Respondent, “both the player and his agent were aware by 31st January
2021 that registration of this player with Simba was impossible”.
16. In the view of the Respondent, the Claimant violated the terms of the Contract as he failed
to move to Dar es Salaam (Tanzania).
17. Moreover, the Respondent states that “neither the player nor his agent communicated with
Simba until 26 August, 2021 where the player’s agent requested the letter of release”.
18. The Respondent argues that the Claimant never attempted to terminate the said contract, as
he “knew that in the circumstances salaries did not become due because he never rendered
his services to the Club”
19. In the view of the Respondent, “by refusing to render his availability and eligibility to play, the
player made the performance of the contract on his part to be impossible. The player
breached the professional player contract under which he is suing”.
20. The Respondent argues that it did not unilaterally terminate the contract as alleged by the
Claimant or at all. On the contrary, the Respondent argues that “by the time the club issued
a release letter the player had already breached the contract and rendered it incapable of
performance. In other words the player had by conduct terminated the contract.”
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REF FPSD-4024
21. The Respondent also states that the Contract provides for the Claimant to be contracted for
“one league season” not one calendar year. The league season in question was 2020/2021
ending July 2021. The player is unable to make a claim beyond 6 months because the contract
could have been only valid for one league season (February 2021 to July 2021).
22. The Respondent requested for the claim to be “disregarded for lack of merit and for violating
the good conduct of professional football.”
c. Replica of the Claimant
23. The Claimant was given the opportunity to provide additional comments.
24. In the view of the Claimant, “the act which materializes an international football transfer is
the international transfer certificate. However, in this case, the international transfer
certificate has actually been issued It is then common ground that the player Doxa Doxa
remains the property of the club bound by a contract. The player can no longer engage with
another club”.
25. The Claimant states that the Respondent shall bound by the salaries jointly agreed in the
Contract and that it violated “the sacrosanct principle of FIFA on the execution in good faith
of conventions and of contractual stability”.
26. The Claimant submits that the Respondent’s “obvious bad faith is also due to the fact that
they produced a document certifying that it was the player who requested his release. Beyond
what this could be justified, document n ° 8 on which [the Respondent] is based is not signed
by the [Claimant] The unilateral termination of the employment contract by the employer is
obvious and patent”.
d. Duplica of the Respondent
27. The Respondent acceded to have contracted the Claimant effecting from the 1 February 2021
and the agreed salary was USD 4,000 per month. However, by the time of the claim, the
Contract had already expired as the league season ended on 30 June 2021.
28. The Respondent states that the Contract was for one league season, and it was never
executed by any party, nor being renewed after its expiry.
29. The Respondent states that it had no obligation to send the plane ticket to the Claimant.
30. The Respondent underlines that the letter sent by the Claimant although being unsigned was
sent by the Claimant himself through his personal email address.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
31. 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 18 October 2021 and submitted for decision
on 24 February 2022. Taking into account the wording of art. 34 of the October 2021 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.
32. Subsequently, the members of the Chamber 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 (August 2021 edition), the Dispute
Resolution Chamber is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a Congolese player
and a Tanzanian club.
33. 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 Players (August 2021 edition) and
considering that the present claim was lodged on 18 October 2021, the same edition of said
regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
34. The Chamber 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 Chamber stressed the wording
of art. 13 par. 4 of the Procedural Rules, pursuant to which it 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
35. Its competence and the applicable regulations having been established, the Chamber entered
into the merits of the dispute. In this respect, the Chamber started by acknowledging all the
above-mentioned facts as well as the arguments and the documentation on file. However,
the Chamber 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.
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i. Main legal discussion and considerations
36. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the parties strongly dispute the validity of the Contract.
37. In this context, the Chamber referred itself to the evidence available on file and found that
the Contract was due to come into force on 1 February 2021 and was valid until the end of
the season.
38. The Chamber also noted that the Respondent appears to dispute the validity of the
employment contract, as the player was not able to be registered for CAF competitions.
39. In this context, the Chamber first reminded the parties that, in line with the contents of art.
18 par. 4 of the Regulations, as well as the jurisprudence of FIFA, the validity of an
employment contract cannot be made conditional upon the execution of (administrative)
formalities, such as, but not limited to, the registration procedure in connection with the
international transfer of a player, which are of the sole responsibility of a club and upon which
a player has no influence. As the club is supposedly interested in acquiring the rights of the
player and in benefiting from his services, it is also expected to act accordingly and execute
the administrative formalities in view of obtaining, for instance, the player’s ITC and his
subsequent registration with the engaging FA. Consequently, the registration or not of the
contract is irrelevant in determining if the contract was a valid and binding document.
40. Based on the foregoing, the Chamber rejected the objection to the validity of the employment
contract and determined that the latter was valid and biding for the parties.
41. Notwithstanding the above, the DRC noted as undisputed by the parties that the Claimant
never moved to Tanzania or requested the payment of his salaries for the entire duration of
the Contract, as well as the Respondent never requested the Claimant to join the club’s
discipline.
42. Due to the aforementioned considerations and the absence of any formal notice by any of
the parties, the DRC was convinced that the Contract naturally expired on 30 June 2021.
43. Having established the above, the Chamber was observant of the fact that the first
communication between the parties on file was from August 2021 (i.e. 7 months after the
Contract entered into force and 2 months after it expired). Moreover, the DRC underlined
that this communication was for the Claimant solely requesting “his release” and not
reference is made to any financial dues.
44. On a final note, the Chamber noted that the claim appeared to be contradictory with the
attitude of the Claimant until such point. In particular, the DRC noted the Claimant states in
the claim that on 29 August 2021 he was “released without any reason”. However, based
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on the evidence provided by the Respondent, it can be observed that he requested the release
himself, acting in clear breach of the principle venire contra factum proprium.
45. Hence, the DRC was comforted in the determination that both parties genuinely lost interest
in one another, both parties failed to comply with the terms the Contract concomitantly and
both parties with their respective conduct, had tacitly waived their respective entitlements
arising out of the Contract.
46. For the above, the DRC decided that the claim shall be rejected.
d. Costs
47. The Chamber 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.
48. Likewise and for the sake of completeness, the Chamber recalled the contents of art. 25 par.
8 of the Procedural Rules, and decided that no procedural compensation shall be awarded in
these proceedings.
49. Lastly, the DRC 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, Doxa Doxa Gikanji, is rejected.
2.
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).
CONTACT INFORMATION
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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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