Labour Disputes
Texto da decisão
Decision of the
DRC Judge
passed via videoconference, on 12 June 2020,
regarding an employment-related dispute concerning the player Frank Kalanda
BY:
Daan de Jong (Netherlands), DRC Judge
CLAIMANT:
Frank Kalanda, Uganda
RESPONDENT:
AS Kigali, Rwanda
REF 20-00124
I. FACTS OF THE CASE
1. On 11 July 2017, the Ugandan player, Frank Kalanda, (hereinafter: the Claimant or player), and
the club from Rwanda, AS Kigali, (hereinafter: the Respondent or club) concluded an employment
contract valid as from the date of signature until 10 July 2020 (hereinafter: the contract), pursuant
to which the Respondent undertook to pay the Claimant a monthly salary of 350,000 Rwandan
Francs (RWF) and RWF 50,000 for accommodation.
2. On 20 July 2019, the Claimant received a letter from the Respondent dated 15 July 2019, by means
of which the latter released the Claimant as a free player.
3. Consequently, on 22 July 2019 and 30 July 2019, the Claimant sent letters to the Fédération
Rwandaise de Football Association (FERWAFA) and the Respondent, requesting RWF 4,800,000
corresponding to the salaries and accommodation for the remaining period of the contract, to no
avail.
4. On 20 January 2020, the Claimant lodged a claim against the Respondent in front of FIFA for
outstanding remuneration and compensation for breach of contract, claiming the following:
a) “Rwanda francs 700,000 as salary arears for the months of July and August 2019;
b) Rwanda francs 100,000 as accommodation spent by the player while in Rwanda for the
month of July and August 2019 that remain unpaid by the respondent club contract to
terms of the contract;
c) Rwanda francs 1,875,642 as compensation for the residual term of the prematurely
terminated contract (11 months). This figure is after the subtraction of the value of the
new contract;
d) Or in the alternative, in case para. 26 (a) is denied, we pray that the Claimant be
awarded Rwanda Francs 2,216,667 as compensation for the residual term of the
prematurely terminated contract (13 months). This amount is also after deduction of the
value of the new contract (13 months);
e) Rwanda francs 1,050,000 as damages to the player for the arbitrary conduct of the club
and for unilateral termination of the contract within the protected period.
5. The Claimant argued that the Respondent terminated the contract without just cause and he
should, therefore, be entitled to the compensation for breach of contract in the amount of the
residual value of the contract, taking into account his new contract signed on 26 August 2019
with the Ugandan club, Express Football Club.
6. Despite having invited to do so, no correspondence has been received from the club, AS Kigali, in
response to the claim.
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REF 20-00124
II. CONSIDERATIONS OF THE DRC JUDGE
1.
First of all, the DRC judge analysed whether he was competent to deal with the matter at stake.
In this respect, the DRC judge took note that the present matter was submitted to FIFA on 20
January 2020 and decided on 12 June 2020. Thus, the June 2020 edition of the Rules Governing
the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter:
the Procedural Rules) is applicable to the matter at hand.
2.
Subsequently, the DRC judge referred to art. 3 par. 1 and 2 of the Procedural Rules and confirmed
that, in accordance with art. 24 par. 1 and 2 in combination with art. 22 lit. b) of the Regulations
on the Status and Transfer of Players, the DRC judge is competent to deal with the matter at
stake, which concerns an employment–related dispute with an international dimension.
3.
Furthermore, the DRC judge analysed which edition of the Regulations on the Status and Transfer
of Players should be applicable as to the substance of the matter. In this respect, the DRC judge
confirmed that, in accordance with art. 26 par. 1 and par. 2 of the said Regulations and
considering that the present claim was lodged in front of FIFA on 20 January 2020, the January
2020 edition of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations)
is applicable to the matter at hand as to the substance.
4.
The competence of the DRC judge and the applicable regulations having been established, the
DRC judge entered into the substance of the matter. In this respect, the DRC judge started by
acknowledging all the above-mentioned facts as well as the arguments and the documentation
submitted by the parties. However, the DRC judge emphasised that in the following considerations
he will refer only to the facts, arguments and documentary evidence, which he considered
pertinent for the assessment of the matter at hand.
5.
In this respect, the DRC judge acknowledged that, on 11 July 2017, the Claimant and the
Respondent concluded an employment contract valid as from the date of signature until 10 July
2020, pursuant to which the Respondent undertook to pay to the Claimant a monthly salary of
RWF 350,000 and RWF 50,000 for accommodation.
6.
Moreover, the DRC judge took that on 20 July 2019, via letter dated 15 July 2019, the Respondent
unilaterally terminated the contract by having released the Claimant as a free player.
7.
Having recalled the above, the DRC judge observed that, the Claimant, in his claim, requested
outstanding remuneration and compensation for breach of contract.
8.
The DRC judge further noted that despite having been invited to do so, the Respondent did not
submit an answer to the claim. By not presenting its position to the claim, the DRC judge was of
the opinion that the Respondent renounced its right of defence and, thus, accepted the
allegations of the Claimant.
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REF 20-00124
9.
Furthermore, as a consequence of the aforementioned consideration, the DRC judge concurred
that in accordance with art. 9 par. 3 of the Procedural Rules, he shall take a decision upon the
basis of the documentation already on file; in other words, upon the statements and documents
presented by the Claimant.
10. Bearing in mind the foregoing, the DRC judge considered the documentation on file and deemed
that the main issue of the present dispute is to determine whether the employment contract was
unilaterally terminated with or without just cause by the Respondent.
11. In this respect, the DRC judge referred to the termination letter of the club dated 15 July 2019, in
which it stated inter alia that the player “has been released by AS KIGALI and is free to join any
club of his choice.”
12. In continuation, the DRC judge was eager to emphasise that only a breach or misconduct which
is of a certain severity justifies the termination of a contract without prior warning. In other words,
only when there are objective criteria which do not reasonably permit to expect a continuation of
the employment relationship between the parties, a contract may be terminated prematurely.
Hence, if there are more lenient measures which can be taken in order for an employer to assure
the employee’s fulfilment of his contractual duties, such measures must be taken before
terminating an employment contract. A premature termination of an employment contract can
always only be an ultima ratio.
13. Referring to the concrete circumstances of the case, the DRC judge noted that no evidence was
provided by the Respondent of any attempt of the club to preserve the contract before unilaterally
terminating it and that the termination of the contract and the claim remained unanswered by
the Respondent. Furthermore, no justification whatsoever was given by the club to terminate the
contract with the player. Thus, the DRC judge concluded that the Respondent did not have just
cause to prematurely terminate the employment contract with the Claimant.
14. On account of the above, the DRC judge decided that the Respondent did not have a just cause
to unilaterally terminate the employment relationship with the Claimant on 20 July 2019 and,
consequently, the latter must bear the financial and/or sporting consequences of the early
termination, in addition to any outstanding payments on the basis of the relevant employment
contract.
15. First of all, the DRC judge concurred that the Respondent must fulfill its obligations as per
employment contract in accordance with the general legal principle of “pacta sunt servanda”.
16. Consequently, the DRC judge firstly noted that the player claims that on the date of termination
his salaries for July and August 2019 were outstanding, however since the termination occurred
on 20 July 2019 the aforementioned amounts had not yet fallen due. Thus, no outstanding
remuneration is due to the Claimant.
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REF 20-00124
17. Having established that the Respondent is to be held liable for the early termination of the
employment contract without just cause, the DRC judge focused his attention on the
consequences of such termination. Taking into consideration art. 17 par. 1 of the Regulations, the
DRC judge decided that the Claimant is entitled to receive from the Respondent an amount of
money as compensation for breach of contract.
18. In continuation, the DRC judge focused his attention on the calculation of the amount of
compensation for breach of contract in the case at stake. In doing so, the DRC Judge 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 Claimant under the existing contract and/or the new contract, the time
remaining on the existing contract up to a maximum of five years, and depending on whether the
contractual breach falls within the protected period.
19. In application of the relevant provision, the DRC judge held that he first of all had to clarify as to
whether the pertinent employment contract contains 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 DRC judge established that no such
compensation clause was included in the employment contract at the basis of the matter at stake.
20. As a consequence, the DRC judge determined that the amount of compensation payable by the
Respondent to the Claimant had to be assessed in application of the other parameters set out in
art. 17 par. 1 of the Regulations. The DRC judge recalled that said provision provides for a nonexhaustive enumeration of criteria to be taken into consideration when calculating the amount of
compensation payable. Therefore, other objective criteria may be taken into account at the
discretion of the deciding body.
21. The DRC judge then turned his attention to the remuneration and other benefits due to the
Claimant under the existing contract and/or the new contract, which criterion was considered by
him to be essential. The DRC judge deemed it important to emphasise that the wording of art. 17
par. 1 of the Regulations allows him to take into account both the existing contract and the new
contract in the calculation of the amount of compensation.
22. Bearing in mind the foregoing, the DRC judge proceeded with the calculation of the monies
payable to the Claimant under the terms of the employment contract as from its date of
termination without just cause by the Respondent, i.e. 20 July 2019, until the end of the contract,
and concluded that the Claimant would have received in total RWF 4,930,000 as remuneration
had the contract been executed until its expiry date, taking into account his monthly salary as well
as the monthly accommodation fee. Consequently, the DRC judge concluded that the amount of
RWF 4,930,000 serves as the basis for the final determination of the amount of compensation for
breach of contract in the case at hand.
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REF 20-00124
23. In continuation, the DRC judge verified as to whether the Claimant had signed an employment
contract with another club during the relevant period of time, by means of which he would have
been enabled to reduce his loss of income. According to the constant practice of the DRC judge,
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. The DRC judge noted that the Claimant signed an
employment contract with the Ugandan club, Express Football Club, valid as from 26 August 2019
until 31 May 2021, i.e. 21 months, in accordance with which he would be remunerated with a
monthly salary of Ugandan Shilling (UGX) 940,000 (i.e. UGX 700,000 as salary and UGX 240,000
as transportation fee) and a sign on fee of UGX 4,000,000. Considering that the contract
concluded by the Claimant and the Respondent would have expired on 10 July 2020, and in
accordance with the constant practice of the Dispute Resolution Chamber and the general
obligation of the Claimant to mitigate his damages, the amount that shall to be taken into account
in the calculation of the amount of compensation for breach of contract is equal to UGX
13,703,220. Such remuneration under the new employment contract corresponds approx. to RWF
3,339,920.
24. In view of all of the above, the DRC judge decided that the Respondent must pay the amount of
RWF 1,590,080 to the Claimant as compensation for breach of contract without just case, which
is considered by the DRC judge to be a reasonable and justified amount as compensation.
25. Furthermore, taking into account the consideration under number II./3. above, the DRC judge
referred to par. 1 and 2 of art. 24bis of the Regulations, which stipulate that, with its decision,
the pertinent FIFA deciding body shall also rule on the consequences deriving from the failure of
the concerned party to pay the relevant amounts of outstanding remuneration and/or
compensation in due time.
26. In this regard, the DRC judge pointed out that, against clubs, the consequence of the failure to
pay the relevant amounts in due time shall consist of a ban from registering any new players,
either nationally or internationally, up until the due amounts are paid and for the maximum
duration of three entire and consecutive registration periods.
27. Therefore, bearing in mind the above, the DRC judge decided that, in the event that the
Respondent does not pay the amounts due to the Claimant within 45 days as from the moment
in which the Claimant, following the notification of the present decision, communicates the
relevant bank details to the Respondent, a ban from registering any new players, either nationally
or internationally, for the maximum duration of three entire and consecutive registration periods
shall become effective on the Respondent in accordance with art. 24bis par. 2 and 4 of the
Regulations.
28. Finally, 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. 3
of the Regulations.
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REF 20-00124
29. The DRC judge concluded his deliberations in the present matter by establishing that Claimant’s
claim is partially accepted and that any further claim lodged by the Claimant is rejected.
III. DECISION OF THE DRC JUDGE
1.
The claim of the Claimant, Frank Kalanda, is partially accepted.
2.
The Respondent, Club AS Kigali, has to pay to the Claimant compensation for breach of contract
without just cause in the amount of RWF 1,590,080.
3.
Any further claims of the Claimant are rejected.
4.
The Claimant is directed to immediately and directly inform the Respondent of the relevant bank
account to which the Respondent must pay the due amount.
5.
The Respondent shall provide evidence of payment of the due amount in accordance with this
decision to [email protected], duly translated, if applicable, into one of the official FIFA languages
(English, French, German, Spanish).
6.
In the event that the amount due, plus interest as established above is not paid by the Respondent
within 45 days, as from the notification by the Claimant of the relevant bank details to the
Respondent, the following consequences shall arise:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid and for the maximum duration of three
entire and consecutive registration periods. The aforementioned ban mentioned will be
lifted immediately and prior to its complete serving, once the due amount is paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amount as per in this decision is still not paid by the end of
the ban of three entire and consecutive registration periods, the present matter shall be
submitted, upon request, to the FIFA Disciplinary Committee.
7. The ban mentioned in point 6. above will be lifted immediately and prior to its complete serving,
once the due amounts are paid.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF 20-00124
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the
Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a party
within five days of the notification of the motivated decision, to publish an anonymised or a redacted
version (cf. article 20 of the Procedural Rules).
CONTACT INFORMATION:
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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