Labour Disputes
Texto da decisão
REF. FPSD-9145
Decision of the
Dispute Resolution Chamber
passed on 4 May 2023
regarding an employment-related dispute concerning
the player Daniel Cudjoe Mensah Gozar
BY:
Omar Ongaro (Italy), Deputy Chairperson
Tomislav Kasalo (Croatia), member
Calum Beattie (Scotland), member
CLAIMANT:
Daniel Cudjoe Mensah Gozar, Ghana
Represented by Mr Lyrique du Plessis
RESPONDENT:
Swallows F.C., South Africa
Represented by Botha Massyn & Thobejane Associated Attorneys
pg. 2
REF. FPSD-9145
I. Facts of the case
1.
On 1 July 2022, the Ghanian player Daniel Cudjoe Mensah Gozar (hereinafter the Claimant
or the player) and the South African club Swallows F.C. (hereinafter the Respondent or the
club) concluded an employment contract valid as from the date of signature until
30 June 2024.
2.
According to the employment contract (hereinafter the contract), the player was appointed
to play professional football for the club’s first team and should be remunerated as follows:
−
For the period of 1 July 2022 to 30 June 2023, a gross monthly salary of
ZAR (South African Rand) 66,550;
For the period of 1 July 2023 to 30 June 2024, a gross monthly salary of ZAR 73,205.
−
−
−
−
−
A gross signing-on fee of ZAR 500,000, payable as follows:
ZAR 150,000 on or before 30 September 2022;
ZAR 150,000 on or before 31 January 2023;
ZAR 100 000 on or before 30 September 2023; and
ZAR 100,000 on or before 31 January 2024.
−
3.
Clause 2.3 of the contract stipulates the following: “2.3 Jurisdiction: This agreement will be
construed according to the laws of the Republic of South Africa, applicable to agreements that
are signed and performed within the Republic of South Africa but in light of and in accordance
with the football rules generally and NSL rules specifically”.
4.
Clause 15 of the contract establishes the following: “15. Poor work performance 16.1 If a
footballer does not perform to the standard expected of a professional footballer, then the
coach or technical team shall: 15.1.1 Make the footballer aware of the shortcomings in his
performance. 15.1.2 Give the footballer an opportunity to be heard, with the assistance of a
fellow footballer or their club employee, should the footballer so desire. 15.1.3 Give the
footballer the appropriate instruction, training, guidance or counselling to enable him to attain
a satisfactory standard. 15.1.4 Allow the footballer a reasonable time within which to improve
to this required standard. 15.2 If a footballer continues to perform unsatisfactorily after the club
has complied with the steps set out above, then the club shall give the footballer written notice
to attend a meeting to investigate the reasons for the footballer’s continued poor performance.
The club shall inform the footballer of his right to be assisted by a fellow footballer or other club
employee at this meeting. 15.3 During this meeting the club shall provide the footballer with an
opportunity to state a case. After hearing the footballer, the club will decide on appropriate
action and when doing so will consider ways, short of dismissal, to remedy the matter. However,
disciplinary action taken may include dismissal, if no alternative remedy can be found. 15.4 The
club shall provide the footballer with written notice of the decision reached and seasons
therefore whatever the outcome”.
pg. 3
REF. FPSD-9145
5.
Clause 17 of the contract stipulates the following: “17 Suspension of employment: 17.1 If the
club suspects that a footballer is guilty of misconduct or has committed a material breach of
any of the terms of this agreement, it may, pending an investigation into the alleged conduct or
breach, suspend the footballer for a reasonable period during which the footballer shall be
entitled to receive his normal salary and benefits, but shall not be entitled to attend work or
represent the club in any dealings. 17.2 If the footballer refuses to attend work, training, or a
match, the principle of ‘no work, no pay’ will apply quite apart from other sanctions that the
club may be entitled to apply. If the footballer is in contact but does not attend work or should
he express an unwillingness to player for the club, he shall not be entitled to remuneration or a
clearance certificate unless and until he undertakes to, and does, comply with all his obligations
to the club”.
6.
Clause 19.1 of the contract establishes that “All disputes arising out of or relating to this
contract, including disputes as to the meaning or interpretation of any provision of the contract
or as to the carrying into effect of any such provision or as to the termination or the
consequences of termination shall be referred to the Dispute Resolution in accordance with the
NSL rules from time to time”.
7.
Clause 19.2 of the contract stipulates that “The parties warrant that, in accordance with the
football rules, any and all disputes of whatsoever shall be determined in accordance with the
NSL rules and in the Dispute Resolution Tribunals of the NSL rather than before any court or
other tribunal insofar as it is a requirement of FIFA and other footballing rules that the internal
dispute resolution mechanisms available in football should be utilised by participants in the
game save where the football rules do not provide an appropriate tribunal to determine the
dispute.”
8.
On 17 January 2023, the player wrote to the club, reminding it that they had a valid
employment contract, but his salaries for July, October and December 2022 remained
unpaid. Furthermore, he had been instructed on 12 January 2023 to stop training with the
club. The player puts the club in default of payment of his salaries and grants it a 15-day
deadline to make the payment. In case of no payment, he would have a just cause to
terminate the contract as per art. 14bis of the Regulations.
9.
On 23 January 2023, the club sent the player a communication entitled “Proposal for mutual
termination of FIXED TERM CONTRACT OF EMPLOYMENT”, with the following content:
“Dear Daniel,
I the undersigned hereby inform you that, due to the fact that you are not part of the Coaching
department’s plan for the current season, you are advised that the club would like to meet with
you to discuss its proposal to terminate your Fixed Term Employment Contract signed with the
club on the 01st October 2020. [SIC] You are therefore requested to avail yourself for a meeting
scheduled for Tuesday 24th January 2023 at the Sturrock Park Raikes Road, Braamfontein
Campus West Johannesburg @ 11H00”.
pg. 4
REF. FPSD-9145
10. Also on 23 January 2023, the club sent a further letter to the player entitled “Withdrawal
Letter”, which read as follows:
“Dear Daniel,
This letter hereby informs you that the letter dated the 23 January, 2023, inviting you to a
meeting scheduled for the 24th of January, 2023 to discuss a termination proposal of your
Contract with the Club has been withdrawn. The reason for the withdrawal is a fact that you
failed to adhere to the club’s instruction in which you were required to:
• Attend a schedule Physical Fitness Test at HPC in Tshwane on the 17th January,2023
• Report for training on the 19th February 2023 at Germiston Stadium.
You are therefore informed that you must not report for the meeting mentioned above instead
await further instructions from the club.”
11. On 25 January 2023, the player received a letter from the club entitled “Notice of a
disciplinary hearing”, by means of which he was requested to attend a disciplinary hearing
on 30 January 2023 at the club’s offices, in order to “consider and discuss a reported act of
your misconduct of having failed to adhere to the Technical Team's instructions, it is alleged that
without any reason given/report you have failed to:
• Attend a schedule Physical Fitness Test at HPC in Tshwane on the 17th January,2023
• Report for training on the 19th February 2023 at Germiston Stadium.
[…]
Please note the following:
• You are entitled to be represented by any staff member of your choice at this hearing if you so
wish.
• You are not required to be part of the team's training or any other activities until the
finalization of this matter.”
12. On 26 January 2023, the player replied to the club, warning it that his default notice of 17
January 2023 had remained unanswered. The player further refers to the club’s letters of
23 January 2023 and points out that “said letters were only an attempt to muddy the waters
and disrupt the process initiated by the 14bis Letter”. Furthermore, he requests that his
attorney attends the scheduled disciplinary hearing and asks for a link to join the hearing
virtually.
13. On 29 January 2023, the club sent another letter to the player, entitled “Notice of a
Disciplinary Hearing Postponement”, informing the player that the disciplinary hearing had
been postponed to 31 January 2023.
14. On 31 January 2023, the disciplinary hearing took place, at the end of which the panel found
there was no evidence to find the player guilty of misconduct as alleged by the club.
15. On 2 February 2023, the player unilaterally terminated the employment contract, based on
art. 14bis of the Regulations.
pg. 5
REF. FPSD-9145
16. The player remained unemployed up to the moment of decision.
II. Proceedings before FIFA
17. On 3 February 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
18. The player first claims that, in spite of clause 19 of the contract, which he deems clear and
exclusive, FIFA should be competent to hear the present claim, as the South African NDRC
does not fully comply with the pre-requisites of Circular 1010. In particular, the player
refers to case CAS 2016/A/4846 and points out that, even though “prima facie, the principle
of equal representation of players and clubs seems to be met” for the NFL DRC (1st instance), this
cannot be verified for the SAFA Arbitration Tribunal (2nd instance). The player refers to the case
Swallows Football Club v. Wowowo and another related matter [2022] JOL 57227 (GP) in front
of the South African High Court, in which it was decided that “The parties’ representatives
informed me and Mr [Michael] Murphy confirmed that the SAFA NEC has not drawn up special
regulations regarding the composition, jurisdiction and procedural rules of the [SAFA]
Arbitration Tribunal as required by Art. 58.2.” In the absence of any rules governing the
composition of the SAFA Arbitration Tribunal, FIFA should be competent to deal with the present
case.
19. As to the substance, the player claims that, after the signature of the contract, he started
training with the club and its first team. The player has, however, never been fielded by the
club to play in any of its official matches and was allegedly never registered with the
professional league.
20. The player further claims that, to date, he only received the following payments from the
club:
− ZAR 66,550 on or about 9 September 2022;
− ZAR 66,550 on or about 30 September 2022; and
− ZAR 66,550 on or about 30 November 2022.
21. The player explains that in September 2022, in the context of another matter pending
before FIFA, the club was imposed a transfer ban for 3 transfer windows. The player
continued training normally with the first team until he received a Whastapp message from
the team manager on 12 January 2023, with the following content: “Hi Daniel. Can I meet you
tomorrow at 11am. Do not report at 09h30 like the rest of the players”. During such meeting,
the player was instructed to immediately stop training with the club, as he was no longer
in the coach’s plans. The player waited for further advice from the club until 14 January
2023, when he decided to return to training in order to keep his physical condition.
pg. 6
REF. FPSD-9145
Nevertheless, he was again instructed not to train with the team. That was when he asked
his lawyer to send the default notice of 17 January 2023.
22. On 18 January 2023, during a phone call, the club’s CEO allegedly confirmed that the player
was no longer in the coach’s plans, but the club was open to negotiate his loan to another
club or the mutual termination. The player refused both options and reminded the club of
the outstanding salaries, which the cub allegedly acknowledged.
23. The player claims that, even though he refused the mutual termination of the contract, the
club insisted on it (first letter of 23 January 2023) and later on even intended to terminate
the contract unilaterally (second letter of 23 January 2023). He sent the club the warning of
26 January 2023, which allegedly remained unanswered.
24. The player understands that the club had no intention to register him as a foreigner. He
was not registered during the July 2022 registration period and in September 2022 the club
was barred from transferring and registering any new players, which ban was only lifted on
or about 27 January 2023. Furthermore, the club purposedly prevented him to execute the
contract, by forbidding him to participate in trainings and official matches.
25. In view of the foregoing, the player deems that he had a just cause to terminate the contract
unilaterally on 2 February 2023, based on the aforementioned circumstances and on
art. 14bis of the Regulations.
26. He requests the DRC to:
“a) Enforce its jurisdiction over the matter;
b) Find the Respondent guilty of breaching the employment contract, entered into between the
parties, without just cause;
e) [sic] Order the Respondent to pay the Claimant the amount of ZAR1 977 410.00* (in words:
one million nine hundred and seventy-seven thousand four hundred and ten South African
Rand), which amount represents the balance of the Employment Agreement, and which amount
is still outstanding;
f) Impose sporting sanctions on Respondent pursuant to Art. 12bis of the FIFA RSTP;
g) 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
h) Order Respondent to bear any and all legal costs and expenses incurred by the Claimant in
connection with the present claim”.
* The player calculated the amount of ZAR 1,977,410 as follows:
- salaries of July, October and December 2022, i.e. 3 x ZAR 66,550
- instalment of September 2022: ZAR 150,000
- instalment of January 2023: ZAR 150,000
- instalment of September 2023: ZAR 100,000
- instalment of January 2024: ZAR 100,000
pg. 7
REF. FPSD-9145
- all salaries from January 2023 until June 2023, i.e. 6 x ZAR 66,550
- all salaries from July 2023 to June 2024, i.e. 12 x ZAR 73,205.
b. Position of the Respondent
27. In its reply, the club first objects to the competence of FIFA to deal with the present matter.
In particular, it understands that the matter should be decided by the South African NDRC,
in line with clauses 2.3 and 19 of the contract. It further states that the NDRC is in line with
Circular 1010, as it respects the equal representation between clubs and players.
28. The club provides copies of the NSL handbook (edition of 4 July 2019 provided),
emphasising the following articles:
“Art. 23. Dispute Resolution Chamber.
23.1 General
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 by Players association – and appointed to adjudicate disputes
in the event of their meeting the requirements of this clause.
23.1.3 Panellists will be appointed for a period of 2 (two) years though their appointment may
be renewed for a further similar period.
23.1.4 Every panellist will be qualified to practise law and will perform his or her responsibilities
ethically, impartially, and in good faith. The co-chairpersons must have been qualified to
practise law for at least 15 (fifteen) years and upon appointment will be co-chairpersons of the
Dispute Resolution Chamber.
23.1.5. The Dispute Resolution Chamber will be composed of the following members, who will
serve a 2-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.
23.1.6. A Dispute Resolution Chamber tribunal will be comprised of 3 (three) panellists, including
1 (one) of the co-chairpersons who will chair the proceedings and: 23.1.6.1. 1 (one) panellist drawn from the list of panellists nominated by Member Clubs; and
23.1.6.2. 1 (one) panellist drawn from the list of panellists nominated by the Players’ association.
[…]
24. Appeals:
24.1 Awards of the Dispute Resolution Chamber may be the subject of an appeal or a review to
the SAFA Arbitration Tribunal”.
pg. 8
REF. FPSD-9145
29. Based on the foregoing, the club understands that the player’s claim should be considered
inadmissible.
30. As to the substance, the club claims that, even though the contract started on 1 July 2022,
the player only trained with the club from 9 August 2022 to 30 September 2022 and
“skipped training for the month of October 2022”. As per the club, the player “attended training
from 1 November 2022 to 30 November 2022, and thereafter [he] stopped training until he
resurfaced on 11 January 2023”. Thus, in line with clause 17 of the contract, he was correctly
paid for the months in which he duly performed the contract.
31. The club further claims that the player was rather unfit as he returned to training and was
then assigned to high performance training by the club. The club claims to have followed
correctly all the steps required in clause 15 of the contract. The player however failed to
attend the special trainings scheduled for him on 17 and 19 January 2023. The player also
did not attend to work after 31 January 2023, even though the club had not authorised his
absence. Thus, he breached the contract and the termination of 2 February 2023 lacked
just cause.
32. The club admits not having registered the player, and states this was due to his poor
performance.
33. The club deems that the player should not be entitled to any compensation or to any
remuneration for the period he did not work.
34. Based on the foregoing, the club requests the DRC to:
“1. Reject the claimant’s claim for lack of jurisdiction.
2. Dismiss the claimant’s claim.
3. Order the claimant to pay Swallow FC’s costs”.
c. Comments of the Claimant
35. In his final comments as to the club’s objection to FIFA’s competence, the player insisted
on his claim and on the DRC’s competence to entertain it.
36. In particular, he referred to his previous comments and confirmed that clause 19 of the
contract is a clear and exclusive jurisdiction clause and that the South African NDRC
“complies with FIFA’s prescripts prima facie”. Nevertheless, he understands that the South
African NDRC “as a whole, is non-compliant with the prescripts of FIFA (Cf. paras 52 to 61 of the
SOC) as the NDRC does not have a proper appeals body”.
37. The player claims that “It is clear that the South African NDRC comprises a body twofold: the
NSL DRC as its first instance body, and the “SAFA Arbitration Tribunal” as a second instance
pg. 9
REF. FPSD-9145
appeal body, at least so holds the football rules. 6.10. As shall be outlined below, it was
incumbent upon the Respondent, as the party seeking to contest FIFA’s jurisdiction, to establish
that the South African NDRC as a whole is compliant with FIFA’s prescripts, which it has not”.
38. He specifically refers to a decision passed by the DRC on 6 May 2021 in case Ref. 20-00885,
which concluded that the NSL DRC is compliant with the FIFA Circular, but found an issue
with the SAFA Arbitration Tribunal as an appeal body. As both instances must fulfil the prerequisites of Circular 1010, the player understands that the South African NDRC cannot be
recognised as a compliant NDRC.
39. The player states that even though art. 24.1 of the NFL Handbook stipulates that the
decisions of the NSL DRC may be appealed to the SAFA Arbitration Tribunal, the “SAFA
Statutes and Article 71 in particular, it appears that these statutes do not provide any clarity on
the SAFA Arbitration Tribunal’s compliance with Circular 1010. To the absolute contrary, when
considering the content of Article 71 SAFA Statutes, it appears that there are special regulations
underpinning the Arbitration Tribunal, which are non-existence. Article 58.2 of the SAFA
Statutes7 reads that: ‘The SAFA NEC shall draw up special regulations regarding the composition,
jurisdiction and procedural rules of this Arbitration Tribunal.’ Accordingly, should the
Respondent have provided these ‘special regulations regarding the composition…of [the SAFA]
Arbitration Tribunal’, it could have overcome its burden of proof. This, however, is impossible.
There is no evidence as to the SAFA Arbitration Tribunal’s composition. This has been confirmed
by the High Court of South Africa. […] There are no rules governing the composition of the SAFA
Arbitration Tribunal. As such, the FIFA FT must establish that it is competent to deal with the
present matter, as it is impossible to establish that the South African NDRC is compliant with the
minimum standards outlined in art 22 b) of the RSTP.”
40. Based on the foregoing, the player insists on FIFA’s competence to deal with the present
claim.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
41. 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 3 February 2023 and submitted
for decision on 4 May 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.
42. 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
pg. 10
REF. FPSD-9145
Regulations on the Status and Transfer of Players (March 2023 edition), the Dispute
Resolution Chamber is – in principle – competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension between a
player from Ghana and a club from South Africa.
43. The Chamber further noted that the Respondent contested the competence of FIFA’s
deciding bodies in favour of the National Dispute Resolution Chamber of South Africa
(hereinafter the NDRC), alleging that the latter is competent to deal with any dispute
deriving from the relevant employment contract, in accordance with its clause 2.3.
44. The Chamber also noted that the Claimant insisted on the competence of FIFA to adjudicate
the present claim, sustaining that the contract does not contain a clear and exclusive
jurisdiction clause in favour of the NDRC and that the latter is not an independent
arbitration tribunal guaranteeing fair proceedings and respecting the principle of equal
representation of players and clubs. Taking into account all the above, the Chamber
emphasised that in accordance with art. 22 par. 1 lit. b) of the Regulations on the Status
and Transfer of Players, FIFA is, in principle, competent to hear an employment-related
dispute between a club and a player of an international dimension. Nevertheless, the
parties may explicitly opt in writing for such dispute to be decided by an independent
arbitration tribunal that has been established at national level within the framework of the
association and/or a collective bargaining agreement. Any such arbitration clause must be
included either directly in the contract or in a collective bargaining agreement applicable
on the parties. The independent national arbitration tribunal must guarantee fair
proceedings and respect the principle of equal representation of players and clubs. 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.
45. In this context, Chamber e pointed out that it should first analyse whether the employment
contract at the basis of the present dispute contained a clear and exclusive jurisdiction
clause in favour of the NDRC.
46. In this respect, the Chamber referred to clause 2.3 of the contract, according to which: “This
agreement will be construed according to the laws of the Republic of South Africa, applicable to
agreements that are signed and performed within the Republic of South Africa but in light of
and in accordance with the football rules generally and NSL rules specifically”.
47. The Chamber, after analysing the wording of the jurisdiction clause, concluded that such
clause did not clearly and exclusively establish the competence of the NDRC, in accordance
with art. 22 par. 1 lit. b) of the aforementioned Regulations.
48. As a consequence, the Chamber was of the opinion that the first pre-requisite for
establishing the competence of an NDRC was not met, and therefore, without the need to
enter the analysis of any further requirement, it established that the Respondent’s
objection to the competence of FIFA to deal with the present matter has to be rejected and
pg. 11
REF. FPSD-9145
that the Dispute Resolution Chamber is competent, on the basis of art. 22 par. 1 lit. b) of
the Regulations, to consider the present matter as to the substance.
49. 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 (March 2023 edition), and
considering that the present claim was lodged on 03 February 2023, the October 2022
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
50. 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
51. 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.
i. Main legal discussion and considerations
52. 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 justice of the early
termination of the contract by the Claimant.
53. The Chamber further noted that, as to the substance, it is undisputed a) that the player
terminated the contract unilaterally on 2 February 2023, b) that his remuneration for July,
October and December 2022 remained unpaid and that the club never registered him.
54. The DRC took note that while the player deems that he had a just cause to terminate the
contract as per art. 14bis of the Regulations and due to the non-registration, the club
deems that he breached the contract by being absent from training without permission, by
showing low performance and refusing to comply with the club’s special training program
designed for him.
pg. 12
REF. FPSD-9145
55. In this context, the Chamber acknowledged that its task was to determine, based on the
evidence presented by the parties, whether the claimed amounts had in fact remained
unpaid by the Respondent and, if so, whether the formal pre-requisites of art. 14bis of the
Regulations had in fact been fulfilled. Subsidiary, the Chamber also took note of the
allegations of the player concerning the non-registration.
56. The Chamber then referred to the wording of art. 14bis par. 1 of the Regulations, in
accordance with which, if a club unlawfully fails to pay a player at least two monthly salaries
on their due dates, the player will be deemed to have a just cause to terminate his contract,
provided that he has put the debtor club in default in writing and has granted a deadline
of at least 15 days for the debtor club to fully comply with its financial obligation(s).
57. The Chamber noted that the Claimant claims not having received his remuneration
corresponding to (July 2022, October 2022 and December 2022). Furthermore, the
Chamber noted that the Claimant has provided written evidence of having put the
Respondent in default on 17 January 2023, i.e. at least 15 days before unilaterally
terminating the contract on 2 February 2023.
58. Furthermore, the Chamber noted that the club does not deny having failed to pay the
player some of his remuneration nor to register him but claims to have been entitled to do
so due to the player’s behaviour. In this respect, the DRC wished to highlight that the club,
however, did not provide substantial evidence of the allegedly unauthorised absence of
the player or of his bad performance.
59. At this point, the DRC deemed important to refer to its longstanding jurisprudence,
according to which, in any event, a) bad performance is not a just cause and b) it is the
club’s exclusive responsibility to register the player.
60. In view of the foregoing, the DRC concluded that the club had no valid justification to
deprive the player of the registration or of the payment of his remuneration. Thus, the
Claimant had a just cause to unilaterally terminate the contract, based on art. 14bis of the
Regulations.
ii. Consequences
61.
Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent.
62.
The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are equivalent to salaries as
further instalments under the contract, amounting to ZAR 566,200.
pg. 13
REF. FPSD-9145
63.
As a consequence, and in accordance with the general legal principle of pacta sunt
servanda, the Chamber decided that the Respondent is liable to pay to the Claimant the
amounts which were outstanding under the contract at the moment of the termination,
i.e. ZAR 566,200, i.e. salaries of July, October, December 2022 and January 2023 (4 times
ZAR 66,550) plus instalment of September 2022 (ZAR 150,000) plus instalment of
January 2023 (ZAR 150,000).
64.
In addition, taking into consideration the Claimant’s request as well as the constant
practice of the Chamber in this regard, the latter decided to award the Claimant interest
on the outstanding amounts as follows:
- 5% interest p.a. over the amount ZAR 66,550 of as from 1 August 2022 until the date of
effective payment;
- 5% interest p.a. over the amount of ZAR 150,000 as from 1 October 2022 until the date
of effective payment;
- 5% interest p.a. over the amount ZAR 66,550 of as from 1 November 2022 until the date
of effective payment;
- 5% interest p.a. over the amount ZAR 66,550 of as from 1 January 2023 until the date
of effective payment;
- 5% interest p.a. over the amount ZAR 150,000 of as from 1 February 2023 until the date
of effective payment;
- 5% interest p.a. over the amount ZAR 66,550 of as from 1 February 2023 until the date
of effective payment.
65.
Having stated the above, the Chamber 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
Chamber 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.
66.
In application of the relevant provision, the Chamber held that it first of all had to clarify
as to whether the pertinent employment contract contained a provision by means of
which the parties had beforehand agreed upon an amount of compensation payable by
the contractual parties in the event of breach of contract. In this regard, the Chamber
established that no such compensation clause was included in the employment contract
at the basis of the matter at stake.
67.
As a consequence, the members of the Chamber determined that the amount of
compensation payable by the club to the player had to be assessed in application of the
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REF. FPSD-9145
other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that
said provision provides for a non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable.
68.
Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded
with the calculation of the monies payable to the player under the terms of the contract
from the date of its unilateral termination until its end date. Consequently, the Chamber
concluded that the amount of ZAR 1,411,210, i.e. instalment of September 2023
(ZAR 100,000), instalment of January 2024 (ZAR 100,000), salaries from February 2023 until
June 2023 (5 times ZAR 66,550), salaries from July 2023 to June 2024 (12 times ZAR 73,205),
serves as the basis for the determination of the amount of compensation for breach of
contract.
69.
In continuation, the Chamber verified as to whether the player had signed an employment
contract with another club during the relevant period of time, by means of which he would
have been enabled to reduce his loss of income. According to the constant practice of the
DRC as well as art. 17 par. 1 lit. ii) of the Regulations, such remuneration under a new
employment contract shall be taken into account in the calculation of the amount of
compensation for breach of contract in connection with the player’s general obligation to
mitigate his damages.
70.
In this respect, the Chamber noted that the player remained unemployed since the
unilateral termination of the contract.
71.
The Chamber 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.
72.
In this respect, the Chamber e decided to award the player compensation for breach of
contract in the amount of ZAR 1,411,210 as the residual value of the contract.
73.
Lastly, taking into consideration the player’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the player interest on said
compensation at the rate of 5% p.a. as of 2 February 2023 until the date of effective
payment.
iii. Compliance with monetary decisions
74.
Finally, taking into account the applicable Regulations, the Chamber referred to art. 24
par. 1 and 2 of the Regulations, which stipulate that, with its decision, the pertinent FIFA
deciding body shall also rule on the consequences deriving from the failure of the
concerned party to pay the relevant amounts of outstanding remuneration and/or
compensation in due time.
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REF. FPSD-9145
75.
In this regard, the DRC 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.
76.
Therefore, bearing in mind the above, the DRC 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.
77.
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.
78.
The DRC 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
79.
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.
80.
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.
81.
Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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REF. FPSD-9145
IV. Decision of the Dispute Resolution Chamber
1.
The Football Tribunal has jurisdiction to hear the claim of the Claimant, Daniel Cudjoe
Mensah Gozar.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, FC Swallows, must pay to the Claimant the following amount(s):
- ZAR 566,200 as outstanding remuneration plus interest p.a. as follows:
- 5% interest p.a. over the amount ZAR 66,550 of as from 1 August 2022 until the date of
effective payment;
- 5% interest p.a. over the amount of ZAR 150,000 as from 1 October 2022 until the date
of effective payment;
- 5% interest p.a. over the amount ZAR 66,550 of as from 1 November 2022 until the date
of effective payment;
- 5% interest p.a. over the amount ZAR 66,550 of as from 1 January 2023 until the date of
effective payment;
- 5% interest p.a. over the amount ZAR 150,000 of as from 1 February 2023 until the date
of effective payment;
- 5% interest p.a. over the amount ZAR 66,550 of as from 1 February 2023 until the date
of effective payment;
- ZAR 1,411,210 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 2 February 2023 until the date of effective payment.
4.
Any further claims of the Claimant are rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
6.
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.
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REF. FPSD-9145
7.
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.
8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-9145
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
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
pg. 19