Labour Disputes
Texto da decisão
REF FPSD-5597
Decision of the
Dispute Resolution Chamber
passed on 4 August 2022
regarding an employment-related dispute concerning the player David Iyombe
Kitambala
COMPOSITION:
Omar Ongaro (Italy), Deputy Chairperson
Laurel Vaurasi (Fiji), member
Khadija Timera (Senegal), member
CLAIMANT:
Cancún FC, Mexico
Represented by Jonathan Oliva Garcia
RESPONDENT 1:
David Iyombe Kitambala, Congo
RESPONDENT 2:
Gulf United FC, United Arab Emirates
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REF FPSD-5597
I.
Facts of the case
1.
In and about mid-December 2021, the Mexican club Cancún FC (hereinafter: Cancun or Claimant),
the player David Iyombe Kitambala (hereinafter: the player or Respondent 1) and his parents
allegedly agreed to conclude an employment contract valid as from 9 January 2022, i.e., the date
on which the player would turn 18 years old.
2.
On 4 January 2022, the player sent a letter to the Cancun, in which he protested against the
signature of an employment contract under duress, which he wished to terminate with immediate
effect. In addition, the player claims that “(…) while I have a legal guardianship agreement in place
with Monkwa Christian Tabiene, I am confirming that neither, nor my parents, agree with the actions
have been undertaken by him, and his associates, namely in forcing me to sign a contract against my
will. Therefore, not only do I wish to terminate the aforementioned contract, dated January 9 2022, but
I also hereby declare my wish, along with the will of my parents, to unilaterally terminate the agreement
for Monkwa Christian Tabiene to act as legal guardian over me. I, along with my parents, intend to take
steps to ensure that this is done with immediate effect. The contract was also dated January 9 2022,
which I have now come to understand was done so that it could capitalised on my being 18 and signing
myself. (…) I also hereby confirm that to my understanding, the terms of the contract were not fulfilled
effectively, thereby further ensuring that this contract be terminated – namely Gulf United FC were not
made aware of the offer in accordance with the verbal confirmation that they should at the minimum
have the chance to match any offers provided by Cancun FC. Furthermore, it is my understanding that
the agreement also does not have either a co-signed, witness or execution in counterparts and therefore
is null and void”.
3.
On 12 January 2022, Cancun and the player concluded an employment contract (hereinafter: the
contract), valid as from 1 January 2022 until 31 December 2025.
4.
According to clause 4 of the contract, the player is entitled to the following remuneration:
a.
For the tournaments “Clausura 2022 y Apertura 2022”
i. Mexican Pesos (MXN) 31,000 (note: approx. USD 1,520 on 12 January 2022) as monthly net wage,
from 1 January 2022 to 31 May 2022 and from 1 August 2022 to 31 December 2022;
b.
For the tournaments “Clausura 2023 y Apertura 2023”
i. Mexican Pesos (MXN) 31,000 as monthly net wage, from 1 January 2023 to 31 May 2023 and
from 1 August 2023 to 31 December 2023;
c.
For the tournaments “Clausura 2024 y Apertura 2024”
i. Mexican Pesos (MXN) 31,000 as monthly net wage, from 1 January 2024 to 31 May 2024 and
from 1 August 2024 to 31 December 2024;
d.
For the tournaments “Clausura 2025 y Apertura 2025”
i. Mexican Pesos (MXN) 31,000 as monthly net wage, from 1 January 2025 to 31 May 2025 and
from 1 August 2025 to 31 December 2025;
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5.
Clause 17 of the contract establishes that “[the club] may terminate the contractual relationship with
just cause, if the player incurs in any of the following:
i (…) xiii (…).
In any of these cases above-provided the player must pay [the club], as compensation, the total value of
the wage agreed in this contract, i.e. the total value of the wage that the player is entitled during the
term of this contract.
In terms of the FIFA and FMF’s applicable regulations, the player will have the right to terminate this
contract without liability if [the club] incurs in any of the provisions established in such regulations, in
particular, the lack of payment by the club or the delay in payment for more than two consecutive
months”.
6.
On 12 January 2022, a request of the player to be registered with Cancun was filed at the
Mexican Football Federation (FMF).
7.
On 26 January 2022, the FMF, on behalf of Cancun, requested the player’s International Transfer
Certificate (ITC) in the Transfer Matching System (TMS) from his previous club, Celeste FC (COD),
issued on 2 February 2022.
8.
On 15 February 2022, a request for a visa in favour of the player was filed with the Mexican
Migration Authorities.
9.
Cancun further claims that on 27 February 2022 it was allegedly informed that the player had
participated in an official match of the Emirati club, Gulf United FC (hereinafter: Gulf or Respondent
2), in spite of having a valid and binding contract with Cancun and his ITC being in Mexico.
Furthermore, the player was announced as part of Gulf’s team for the 2021-2022 season in the
club’s social media platform.
10. Moreover, Cancun was informed that the player apparently signed a new contract with Gulf, in a
clear situation of breach, on the part of the player, Gulf and the United Arab Emirates Football
Association. As per Cancun, the player participated in Gulf’s training and in several matches, as
evidenced by the numerous photos on file, some of them apparently extracted from the player’s
and Gulf’s Instagram accounts.
11. On 1 March 2022, Cancun received an offer from the Czech club MKF Vyskov for the loan of the
player from 1 July 2022 to 30 June 2023 for a loan fee of USD 50,000, with a purchase option for
USD 750,000.
12. On 2 March 2022, Cancun sent a warning to Gulf, stating the following:
“As you may know, the professional football player, David Lyombe Kitambala (hereinafter referred as to
“The Player”), of Ivorian nationality, has been participating with your Club in official matches and/or
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competitions; thus, please be informed that the Player and Cancún FC signed an employment agreement
on 9 January 2022 until 31 December 2025. Therefore, since Gulf United FC is allowing the involvement
of the Player with the team, it is violating Article 18, third paragraph of the FIFA Regulations on the Status
and Transfers of Players. Consequently, on behalf of Cancún F.C., I kindly ask to your Club to stop having
any kind of sporting relationship with the Player with immediate effect, if not, then we will proceed legally
before the FIFA Football Tribunal, which will lead your team to face Economic and disciplinary sanctions”.
13. On 3 March 2022, Gulf replied to Cancun in the following terms, attaching the player’s letter of
4 January 2022 (par. I./2.):
“Thank you for your email, the contents of which we note. It seems you are unaware of the attached
letter sent on 4 January 2022. Please confirm you have received it as it closes this matter”.
14. Also on 3 March 2022, Cancun acknowledged receipt of the aforementioned correspondence of
Gulf and explained the following:
“The letter that you mentioned was received by Cancún FC at due time. However, after that letter was
sent, the player David Lyombe Kitambala signed, on January 12th, 2022, a new contract with Cancun
FC. That contract was not the only document signed by the player. The player also signed the affiliation
request for Mexican Football Federation (FMF), and several other documents in order to get the
registration. Also, the player has been actively involved in the Mexican visa process. We have
timestamped evidence – videos included – in order to prove the signing of the player with Cancun FC.
The contract is good from January, 2022 to December, 2025.
With those documents, Cancun FC requested – and obtained – the ITC for the player, so the player is
registered with Cancun FC in Mexican Football Federation (FMF), and the ITC is currently in Mexico.
As you can see, it’s clear that you’ve approached a player with valid contract with Cancun FC, induced
the player to breach the contract and ignore the fact that the player – no matter if he is amateur or not
– requires an ITC in order to be able to register with you.
Since the contract signed by the player is in the protected period, your Club will be subject to economic
compensation and disciplinary sanctions, which include the prohibition to make transfers for up to two
consecutive periods. Of course, the player won’t be able to play with you, since he will face also
disciplinary measures.
Therefore, we ask you that, in the term of 72 hours, desist from keeping the player and allow him to go
back to Cancun FC. If we don’t have proper response, we will file, with no delay, a claim in FIFA’s football
Tribunal, which will lead Gulf United FC to face serious disciplinary and economic sanctions. Also, we
will inform the UAE FA this situation, so they can avoid the unlawful registration of the player.”
15. On 6 March 2022, Gulf replied to Cancun’s letter, informing it of its decision to suspend the player
from any trainings, competitive or friendly matches and any other activities of the club until the
matter is solved.
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16. It remained uncontested that the player is currently playing for Gulf apparently as an amateur.
II. Proceedings before FIFA
17. On 28 March 2022, Cancun FC lodged a claim before FIFA against the player for breach of contract
and against Gulf for inducement to breach.
a. Position of the Claimant
18. In particular, Cancun claims that the player and his parents had agreed to sign an employment
contract with the club, valid as from 9 February 2022 as the player was out of contract at that time.
However, on 4 January 2022, the player sent Cancun a letter in which he claims to have signed an
employment contract with the club under duress, against his will and that of his parents. Thus, by
means of such letter, he terminated his representation contract with his alleged agent and the
employment contract with the club.
19. Cancun however points out that on 12 January 2022 the parties concluded an employment
contract, valid as from 1 January 2022 to 31 December 2025, signed by the player himself, who by
then was already 18 years old.
20. The Claimant claims to have filed a request for a residence permit for the player on 15 February
2022 at the Mexican consulate in the United Arab Emirates (UEA), as there is no Mexican consulate
in the player’s home country. Thus, Cancun deemed it appropriate for the player to wait for his
visa in the UAE.
21. The contract of 12 January 2022 was validly concluded, and the parties never agreed on their
termination. Thus, by signing a contract with a new club, the player, approached and induced by
Gulf, breached the employment contract with Cancun within the protected period and additionally
infringed art. 18 par. 5 of the RSTP.
22. Based on the foregoing, Cancun makes the following request for relief:
a.
The player and Gulf (as jointly and severally liable) should pay Cancun compensation for breach of
contract in the total amount of USD 1,210,000 (note: no interest requested), broken down as follows:
-
USD 60,000 as residual value of the contract, from 12 January 2022 to 31 December 2025;
-
USD 50,000 corresponding to the offer made by MFK Vyskov for the loan of the player;
-
USD 350,000 as additional bonuses, in case the loan agreement with MFK Vyskov had been
concluded;
-
USD 750,000 corresponding to the purchase option included in the offer of MFK Vyskov.
b.
Sporting sanctions should be imposed on the player and on Gulf;
c.
The present matter shall be forwarded to the Disciplinary Committee, for the corresponding disciplinary
sanctions.
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b. Position of Respondent 1
23. The player entirely rejected the claim of Cancun, alleging that he never concluded a valid and
binding contract with the club. In particular, he claims never having met or communicated directly
with anyone from the club. Furthermore, he claims he never signed any contract with Cancun and
that he was never in Mexico. He refers to his letter of 4 January 2022, co-signed by his parents, in
which he clearly states that he had no interest in concluding a contract with Cancun.
24. In support of his allegations, the player provides a copy of a letter dated 23 May 2022, sent to FIFA’s
Secretary General, by means of which he requests the cancelation of any contracts signed by the
player, for lack of consent of a minor. In particular, the player claims a group of non-identified
people was trying to obtain advantage at his expenses and that he never received any sums from
the club.
25. Thus, the player requests the Dispute Resolution Chamber to take a decision in his favour and
confirm that he is free to play and sign with any club of his choice.
c.
Position of Respondent 2
26. In its reply to the claim, Gulf claims to have been interested in engaging the player as an “as an
amateur player, playing in an amateur league at a purely amateur club”.
27. The club claims to have received the player’s letter of 4 January 2022 and, as there was no objection
to it, it understood that the player was free to sign a contract with any club of his choice. As per
Gulf, “The player agreed, through his own free will, to register as an amateur player with Gulf United FC
for the UAE Third Division season, scheduled to commence in the first week of February 2022. Gulf United
followed standard protocol, requesting clearance through FIFA TMS, having the player complete
amateur papers, and completing his full medical testing and all other relevant paperwork successfully.
The TMS application was successful and the registration with the UAE FA successful, indicating no issues
with the players registration”.
28. Gulf claims that the player “competed in 1 fixture in the amateur league, as an amateur player, playing
for a purely amateur club, before Gulf United received an email, stating that the player, whose name
was spelled incorrectly, and nationality also incorrect, had a new contract in place with a foreign club.
Upon raising the issue with the player, the player denied any sort of agreement was in place and
expressed the same lack of desire to play for the mentioned club as was brought forward in the letter”.
Following that, the club decided to suspend the player from any matches until a solution was
found. According to the club, the player is currently still suspended.
29. Finally, the club states that:
“a) Gulf United were not aware that any such agreement was in place when registering the player, and
acted in a professional, unbiased manor upon receiving the information.
b) Gulf United have been compliant with the mentioned club and FIFA Players’ Status Department to
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actively resolve the solution.
c) Gulf United are a club competing in their first season as registered & licensed FIFA football club.
d) Gulf United, at the date of writing this letter, are a purely amateur club”.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
30. 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 28 March 2022 and submitted for decision on
4 August 2022. Taking into account the wording of art. 34 of the June 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.
31. 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 (July 2022 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 an Emirati club.
32. 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 (July 2022 edition) and considering that the
present claim was lodged on 28 March 2022, the March 2022 edition of said regulations
(hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
33. 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 TMS.
c.
Merits of the dispute
34. 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 abovementioned 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
35. The foregoing having been established, the Chamber noted that the parties’ first fundamental
disagreement is whether the document allegedly concluded between the parties on 12 January
2022 can be considered as a valid and binding employment contract.
36. In view of the foregoing, the Chamber started by recalling its well-established jurisprudence which
dictates that, in order for an employment contract to be considered as valid and binding, apart
from the signature of both the employer and the employee, it should contain the essentialia negotii
of an employment contract, such as the parties to the contract and their role, the duration of the
employment relationship and the remuneration payable by the employer to the employee.
37. The Chamber noted that the player claims that he never signed any contract with Cancun, and that
Cancun on the other hand deems that the parties on 12 January 2022 concluded a valid and
binding employment contract which was signed, by the player himself after he turned 18 years old.
38. In this context, the Chamber turned its attention to the documentation brought forward by the
parties and acknowledged that Cancun provided a copy of an employment contract dated
12 January 2022 signed by the player himself, after his 18 th birthday, the authenticity of which is
not properly contested by the player. In this regard the Chamber remarked that the player only
claims to have been forced to sign a contract with Cancun or that other “non-identified” people
were negotiating contracts on his behalf without authorisation. However, the Chamber observed
that the player does not argue that the contract dated 12 January 2022 was signed by someone
else or that his signature was forged. The Chamber therefore established that for a layman, the
signature on the contract of 12 January 2022 appears to be the same as the one on the letter of
4 January 2022 or on the other documentation provided by the parties, such as his reply to the
claim, the visa request or the “declaracion de antecedentes internacionales”.
39. In this context the Chamber remarked that Cancun provided substantial evidence that a valid
contract, containing all the essentialia negotii, was concluded with the player on 12 January 2022,
but that the player was not able to provide any explanation or documentation in support of its
argument that he never signed any contract with Cancun.
40. Thus, taking all of the above into account the Chamber concluded that the employment contract
signed on 12 January 2022 is in fact a valid and binding employment contract and shall be
considered in the matter hand.
41. Having established that the parties had a valid and binding employment contract in place, the
Chamber analysed whether this contract was in fact breached by the player and induced by Gulf,
as alleged by Cancun.
42. The Chamber took note that Cancun claims that the player, during the validity of his contract,
concluded another employment contract with Gulf. In this context the Chamber observed that the
player does not deny being engaged with Gulf as he understood to have been a free agent,
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moreover Gulf claims to be a purely amateur club and to have followed all the due procedures to
“register” the player.
43. The members of the Chamber deemed it important to start mentioning a few observations, it
noted from the documentation provided by the parties:
-
the player and Cancun signed a contract on 12 January 2022, with retroactive validity as from
1 January 2022,
-
Cancun filed a request for the player’s visa on 15 February 2022 and the player was authorised to
stay in the UAE,
-
the player since commencement of the contract never received any salary payments from Cancun
and Cancun did not provide any evidence of having paid the player either,
-
only on 3 March 2022 Cancun requested the player to return to the club.
44. In this context the Chamber noted that the player never started playing for Cancun, as he was still
waiting for his visa, moreover he never received his salaries for January and February 2022. The
Chamber also observed that while Cancun was performing its administrative duties i.e., visa
procurement, registration procedure in connection with the international transfer of the player,
the player failed to raise any questions pertaining to the aforesaid.
45. On account of all the above, the Chamber concluded that the player by signing the contract with
Gulf, had in fact committed a breach of contract with Cancun without just cause as he was still
contractually bound to the aforesaid club.
46. The Chamber, however indicated that Cancun should bear co-responsibility for the breach as it
was late in procuring the visa of the player, moreover it failed to pay any salaries to the player since
commencement of the contract.
47. The foregoing having been established, the Chamber concluded that pursuant to the principle of
ex turpi causa non oritur action, the claim of Cancun must be entirely rejected.
d. Costs
48. 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.
49. 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.
50. 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, Cancun FC, 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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