Dispute Resolution Chamber
Texto da decisão
REF FPSD-2059
Decision of the
Dispute Resolution Chamber (DRC) Judge
passed on 30 June 2021
regarding an employment-related dispute concerning the player Owusu Jackson
BY:
Jon Newman (USA), DRC Judge
CLAIMANT:
Owusu Jackson, Ghana
Represented by Mr Yussif Chibsah
RESPONDENT:
Gor Mahia FC, Kenya
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REF FPSD-2059
I.
FACTS OF THE CASE
1.
On 20 January 2020, the Ghanaian player, Owusu Jackson (hereinafter: the Claimant or
Player) and the Kenyan club, Gor Mahia FC (hereinafter: the Respondent or Club) concluded
an employment contract valid “for the period of One (1) year(s)” (hereinafter: the Contract).
2.
According to item 8 of the contract, the player was entitled to a monthly salary of KSH
190,000, a monthly allowance of KSH 6,000, a signing fee of USD 10,000 and a housing
allowance of KSH 10,000.
3.
On 4 February 2021, the player put the club in default for the payment of his entitlements,
granting the club a 10 days’ deadline for paying the outstanding amounts, however to no
avail.
II.
PROCEEDINGS BEFORE FIFA
4.
On 17 March 2021, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a.
5.
The claim of the Claimant
In his requests for relief, the Claimant claimed outstanding remuneration plus interest as
from the due dates, as follows:
“USD 10,000 as outstanding signing fee plus 5% interest as from 21 January 2021
until the date of effective payment;
KHS 2,280,000: 12 x the monthly salary of KSH 190,000;
KHS 120,000: 12 x the monthly housing allowance of KHS 10,000;
KHS 72,000: 12 x the monthly allowance of KHS 6,000.
Gor Mahia FC be sanctioned in accordance with Article 12bis of the FIFA Regulations on
the Status and Transfer of Players”
6.
The Claimant stated that despite his default notice sent to the club, the latter failed to
comply with its financial obligations.
b.
7.
Position of the Respondent
In its reply to the claim, the Respondent, without any substantive argument in its support,
provided a document named “Confirmation of release” dated 30 July 2020 and allegedly
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signed by the player, according to which the parties have mutually terminated the
employment contract and the player waived all his remuneration.
8.
In addition to said document, the Respondent also provided a series of alleged proof of
payments made to the player as follows:
a. An invoice dated 6 March 2020 of KSH 300,000 allegedly referring to “part of
signing fee”;
b. An invoice dated 13 March 2020 of KSH 30,000 allegedly referring to “advance
salary”;
c. An invoice dated 18 June 2020 of KSH of 120,000 allegedly referring to “advance
salary”;
d. A receipt dated 4 August 2020 of USD 875 paid to Coconut Grove Regency Hotel,
allegedly referring to the accommodation of the player for 14 days;
e. An invoice dated 15 August 2020 of KSH of 1,138,000 allegedly paid to Jimlizer
Hotel for “accommodation and food from 16 January to 1st August 2020” for the
player;
f. A receipt dated 27 July 2020 of KES 34,000 paid to ANTHONY TAABU KINYINGI;
g. A booking of a flight ticket for the player from Nairobi, Kenya to Accra, Ghana for
the 4th of August 2020.
c.
9.
Final comments of the Claimant
After having invited the Claimant to provide his comments on the alleged proof of payments
provided by the Respondent as well as on the document named “CONFIRMATION OF
RELEASE” dated 30 July 2020, the Claimant stated the following:
“As to the request in the letter, please note that the player has never seen or signed the
agreement and alleged payment receipts, nor he has received the USD payments. Please be
informed therefore that he never signed the mutual termination agreement or the payment
receipts, meaning that they must have been forged. During his stay at the Club, the Club
only paid the Player food and some hotel bills.”
III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER (DRC)
JUDGE
a.
10.
Competence and applicable legal framework
First of all, the Dispute Resolution Chamber (DRC) judge (hereinafter also referred to as DRC
judge) analysed whether het was competent to deal with the case at hand. In this respect,
it took note that the present matter was presented to FIFA on 17 March 2021 and submitted
for decision on 30 June 2021. Taking into account the wording of art. 21 of the 2021
edition of the Rules Governing the Procedures of the Players’ Status Committee and the
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Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned edition
of the Procedural Rules is applicable to the matter at hand.
11.
Subsequently, the DRC judge referred to art. 3 par. 1 of the Procedural Rules and observed
that in accordance with art. 24 par. 1 and 2 in combination with art. 22 lit. a) and b) of the
Regulations on the Status and Transfer of Players (edition February 2021), the DRC judge
is competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a Ghanaian player and a Kenyan club.
12.
Subsequently, the DRC judge 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 Player (edition February 2021), and
considering that the present claim was lodged on 17 March 2021, the February 2021
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b.
Burden of proof
13.
The DRC judge recalled the basic principle of burden of proof, as stipulated in art. 12
par. 3 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 DRC judge stressed
the wording of art. 12 par. 4 of the Procedural Rules, pursuant to which he may consider
evidence not filed by the parties.
14.
In this respect, the DRC judge also recalled that in accordance with art. 6 par. 3 of Annexe
3 of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence generated
or contained in TMS.
c.
15.
Merits of the dispute
The competence of the DRC judge and the applicable regulations having been established,
the DRC judge entered into the merits of the dispute. In this respect, the DRC judge started
by acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC judge emphasised that in the following
considerations he 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
16.
The foregoing having been established, the DRC judge moved to the substance of the
matter, and took note he player and the club had concluded an employment contract valid
for one year, pursuant to which the club undertook to pay to the player the remuneration,
as established in point I.2 above.
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17.
Moreover, the DRC judge took note that, according to the player, the club failed to comply
with its financial obligations as per the contract and that the termination agreement (i.e.
“Confirmation of release”) allegedly signed on 30 July 2020 is a forgery.
18.
Subsequently, the DRC took note that the Respondent, for its part, without any substantive
argument in its support, provided said document named “Confirmation of release” dated 30
July 2020 allegedly signed by the player, according to which the parties have mutually
terminated the employment contract and the player waived all his remuneration.
19.
At this stage, the DRC judge considered it appropriate to remark that, as a general rule,
FIFA’s deciding bodies are not competent to decide upon matters of criminal law, such as
the ones of alleged falsified signature or document, and that such affairs fall into the
jurisdiction of the competent national criminal authority.
20.
In continuation, the DRC judge recalled that all documentation remitted shall be considered
with free discretion and, therefore, he focused its attention on the termination agreement
of 30 July 2020 as well as on other documents containing the Claimant’s signature,
provided by the parties in the context of the present dispute. In this regard, the DRC judge
pointed out that the original version of the alleged termination agreement was provided by
the Respondent.
21.
After a thorough analysis of the aforementioned document, in particular, comparing the
relevant signature of the Claimant on the termination contract with the signature on the (i)
employment contract, (ii) power of attorney and the (iii) bank account registration form,
the DRC judge noted that in all of them the player stamped his thumb print. However, the
confirmation of release bears a signature.
22.
In view of the above, and based on the documentation currently at his disposal, the DRC
judge came to the conclusion that it could not take the termination agreement into
consideration.
23.
Consequently, the DRC judge observed that the club did not submit sufficient evidence in
order to prove that the employment contract was terminated by mutual consent and that
the player waived all his remuneration.
24.
In continuation, the DRC judge took note that the Claimant requested the amounts of KSH
120,000 and KSH 72,000 for his allowances. In this regard, the DRC judge noted that the
Claimant, in his final comments on the alleged proof of payments provided by the
Respondent, stated that the latter paid “food and some hotel bills.”, without, however,
amending his request for relief in such regard.
25.
Subsequently, the DRC judge observed that according to the proof of payment provided by
the Respondent, an amount higher to the one requested by the Claimant appears to have
being paid by the Respondent for the player’s allowance.
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26.
On account of the above considerations, the DRC judge decided to reject this part of the
Claimant’s claim, concerning the requested payment of KSH 120,000 and KSH 72,000 by
the Respondent.
ii. Consequences
27.
Having stated the above, the DRC judge turned his attention to the question of the
consequences of the circumstances described above.
28.
In this regard and taking also into account that the club failed to prove that any of the
alleged amounts has been transferred to the player’s bank account as well as considering
the player’s comments on such proof of payments, the DRC judge came to the
conclusion that the outstanding amounts are due to the Claimant and should be paid by
the Respondent.
29.
As consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Respondent must fulfil its obligations as per the contract concluded with the Claimant
and, consequently, is to be held liable to pay the outstanding amounts of USD 10,000 and
KSH 2,280,000 to the Claimant.
30.
In addition, in accordance with its well-established jurisprudence and the request of the
Claimant, the DRC decided to that the Respondent had to pay default interest at a rate of
5% p.a. until the effective date of payment as follows:
1. On the amount of USD 10,000 as from 21 January 2020;
2. On the amount of KSH 190,000 as from 1 February 2020;
3. On the amount of KSH 190,000 as from 1 March 2020;
4. On the amount of KSH 190,000 as from 1 April 2020;
5. On the amount of KSH 190,000 as from 1 May 2020;
6. On the amount of KSH 190,000 as from 1 June 2020;
7. On the amount of KSH 190,000 as from 1 July 2020;
8. On the amount of KSH 190,000 as from 1 August 2020;
9. On the amount of KSH 190,000 as from 1 September 2020;
10. On the amount of KSH 190,000 as from 1 October 2020;
11. On the amount of KSH 190,000 as from 1 November 2020;
12. On the amount of KSH 190,000 as from 1 December 2020;
13. On the amount of KSH 190,000 as from 1 January 2021.
iii. Compliance with monetary decisions
31.
Finally, taking into account the consideration under numbers 29. above, the DRC judge
referred to par. 1 lit. and 2 of art. 24bis of the Regulations, which stipulate that, with his
decision, the pertinent FIFA deciding body shall also rule on the consequences deriving from
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the failure of the concerned party to pay the relevant amounts of outstanding remuneration
and/or compensation in due time.
32.
In this regard, the DRC judge highlighted that, against clubs, the consequence of the failure
to pay the relevant amounts in due time shall consist of a ban from registering any new
players, either nationally or internationally, up until the due amounts are paid. The overall
maximum duration of the registration ban shall be of up to three entire and consecutive
registration periods.
33.
Therefore, bearing in mind the above, the DRC judge decided that the Respondent must
pay the full amount due (including all applicable interest) to the Claimant within 45 days of
notification of the decision, failing which, at the request of the Claimant, a ban from
registering any new players, either nationally or internationally, for the maximum duration
of three entire and consecutive registration periods shall become immediately effective on
the Respondent in accordance with art. 24bis par. 2, 4, and 7 of the Regulations.
34.
The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Registration Form, which is attached to the
present decision.
35.
The DRC judge recalled that the above-mentioned ban will be lifted immediately and prior
to its complete serving upon payment of the due amounts, in accordance with art. 24bis
par. 8 of the Regulations.
d.
Costs
36.
The DRC judge referred to article 18 par. 2 of the Procedural Rules, according to
which “DRC proceedings relating to disputes between clubs and players in relation to the
maintenance of contractual stability as well as international employment related disputes
between a club and a player are free of charge”. Accordingly, the DRC judge decided that
no procedural costs were to be imposed on the parties.
37.
Likewise and for the sake of completeness, the DRC judge recalled the contents of
art. 18 par. 4 of the Procedural Rules, and decided that no procedural compensation shall
be awarded in these proceedings.
38.
Lastly, the DRC judge concluded his 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 (DRC) JUDGE
1.
The claim of the Claimant, Owusu Jackson, is partially accepted.
2.
The Respondent, Gor Mahia FC, has to pay to the Claimant, the following amounts:
1. USD 10,000 plus 5% interest p.a. as from 21 January 2020 until the date of effective
payment;
2. KSH 190,000 plus 5% interest p.a. as from 1 February 2020 until the date of effective
payment;
3. KSH 190,000 plus 5% interest p.a. as from 1 March 2020 until the date of effective
payment;
4. KSH 190,000 plus 5% interest p.a. as from 1 April 2020 until the date of effective
payment;
5. KSH 190,000 plus 5% interest p.a. as from 1 May 2020 until the date of effective
payment;
6. KSH 190,000 plus 5% interest p.a. as from 1 June 2020 until the date of effective
payment;
7. KSH 190,000 plus 5% interest p.a. as from 1 July 2020 until the date of effective payment;
8. KSH 190,000 plus 5% interest p.a. as from 1 August 2020 until the date of effective
payment;
9. KSH 190,000 plus 5% interest p.a. as from 1 September 2020 until the date of effective
payment;
10. KSH 190,000 plus 5% interest p.a. as from 1 October 2020 until the date of effective
payment;
11. KSH 190,000 plus 5% interest p.a. as from 1 November 2020 until the date of effective
payment;
12. KSH 190,000 plus 5% interest p.a. as from 1 December 2020 until the date of effective
payment;
13. KSH 190,000 plus 5% interest p.a. as from 1 January 2021 until the date of effective
payment.
3.
Any further claims of the Claimant are rejected.
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4.
Full payment (including all applicable interest) shall be made to the bank account set out in the
enclosed Bank Account Registration Form.
5.
Pursuant to article 24bis of the Regulations on the Status and Transfer of Players if full payment
(including all applicable interest) is not paid 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 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 paid by the end of
the of the three entire and consecutive registration periods.
6.
The consequences shall only be enforced at the request of the Claimant in accordance
with article 24bis paragraphs 7 and 8 and article 24ter of the Regulations on the Status and
Transfer of Players.
7.
This decision is rendered without costs.
For the DRC judge:
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:
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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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