Labour Disputes
Texto da decisão
REF. FPSD-15305
Decision of the
Dispute Resolution Chamber
passed on 23 September 2024
regarding an employment-related dispute concerning the Player
Kahomba Sylvain Karango
COMPOSITION:
Martín Auletta (Argentina), Deputy Chairperson
Jorge Gutiérrez (Costa Rica), Member
Stefano Sartori (Italy), Member
CLAIMANT:
Kahomba Sylvain Karango, Togo
Represented by MIG / Mak International Group
RESPONDENT:
Clube Ferroviario de Maputo, Mozambique
pg. 2
REF. FPSD-15305
I. Facts of the case
1.
On 1 June 2022, the Togolese player Kahomba Sylvain Karango (hereinafter: Claimant or
player) and the Mozambiquan club “Clube Ferroviario de Maputo” (hereinafter: club or
Respondent) concluded an employment contract (hereinafter: the Contract) valid as from the
date of signature until 1 June 2023.
2.
According to the Contract, the Respondent undertook to pay the Claimant a monthly salary
of MZN 96,000, by no later than the 12th day of the following respective month, as well as a
flight ticket for the Claimant to return home after the conclusion of the Contract.
3.
On 19 June 2022, the Claimant received an invitation letter from the Respondent for the
purposes of presenting such document before the immigration authorities in Mozambique.
Said invitation outlined that the Claimant would be hired to carry out professional football
activity against a monthly remuneration of USD 1,500.
4.
Between 21 and 22 June 2022, the Claimant flew from Mozambique to Togo with one stop
in Addis Abeba.
5.
Between 24 June 2022 (i.e., following his arrival in Mozambique) and 19 July, the Claimant
requested a copy of the Contract to be handed to him, whereas the Respondent
emphasized that the Contract must first be sent to the federation for registration and
homologation.
6.
On 18 July 2022 and 19 July 2022 respectively, the Respondent allegedly informed the
Claimant orally that his services were no longer needed and that the technical staff of the
Respondent was unconvinced by his technical level.
7.
On 20 July 2022, the Claimant returned to Togo via Addis Abeba, finally arriving in his home
country on 21 July 2022.
8.
On 14 July 2023, the Claimant sent a request for disclosure of his signed Contract to the
FIFA TMS Helpdesk.
9.
On 6 September 2023, the Claimant received a copy of the signed Contract from FIFA.
10. On 2 May 2024, the Claimant put the Respondent in default of payment of USD 18,000,
corresponding to the value of the entire Contract, granting a deadline of 15 days for the
latter to comply, to no avail.
pg. 3
REF. FPSD-15305
II. Proceedings before FIFA
11. On 19 July 2024, the Claimant filed the claim at hand before FIFA. A summary of the parties’
position is detailed below.
a. Position of the Claimant
12. In his claim, the player argued that the Respondent abusively terminated the Contract,
failing to provide him with a signed copy when requested to do so, and orally dismissing
him, resulting in him having travelled to Mozambique in vain.
13. The Claimant stressed that the Contract was terminated on 20 July 2022, when he was
forced to return home by the Respondent after already being orally dismissed one day
prior.
14. The Claimant emphasised that the termination was of an outrageous nature due to the
short timeline in which he was dismissed following the Contract’s inception, and that the
Claimant only obtained the signed Contract after reaching out to FIFA.
15. The Claimant argued that he had just cause in accordance with art. 14 of the Regulations.
16. The Claimant requested no outstanding remuneration, and instead requested
compensation in the amount of MZN 12,000,000, i.e., corresponding to the contractually
stipulated penalty. The Claimant requested that said amount be paid in USD, calculated as
USD 187,812.84 by himself, as well as interest of 5% p.a. as from 20 July 2022 until the date
of effective payment.
b. Position of the Respondent
17. Despite having been invited to do so, the Respondent failed to provide a response to the
claim.
pg. 4
REF. FPSD-15305
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
18. First of all, the Dispute Resolution Chamber (hereinafter: the 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 19 July 2024 and submitted for decision on
23 September 2024. 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.
19. Furthermore, 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 par. 1 lit. b) of the
Regulations on the Status and Transfer of Players (June 2024 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 Togolese player
and a Mozambiquan club.
20. 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 (June 2024 edition), and
considering that the present claim was lodged on 19 July 2024, the June 2024 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
21. 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
22. Having established the competence and the applicable regulations, 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
assessing the matter at hand.
pg. 5
REF. FPSD-15305
i. Main legal discussion and considerations
23. The Chamber then moved to the substance of the matter and took note of the fact that the
basis of the present dispute was the alleged breach of contract by the Respondent giving
rise to just cause for the Claimant to prematurely and unilaterally terminate the Contract.
24. In this context, the Chamber acknowledged that it its task was to determine whether the
Claimant had a just cause to prematurely terminate the Contract, and what the
consequences of such termination may be.
25. The Chamber proceeded to briefly recall the parties’ submissions. On one hand, according
to the Claimant, he had just cause to terminate the Contract due to abusive behaviour by
the Respondent. More specifically, the Claimant argued that, after signing the Contract and
travelling to Mozambique in vain, he was dismissed without just cause, as the Respondent
informed him orally that his technical level is insufficient, following an assessment by the
coaching staff of the latter.
26. On the other hand, the Respondent failed to provide a position to the claim.
27. Notwithstanding the Respondent’s failure to provide its position, the Chamber held that
the lawfulness of the contractual termination must be assessed in accordance with the
evidence on file, not least pursuant to art. 13 par. 5 of the Procedural Rules and taking into
account that the Claimant was the party to prematurely and unilaterally terminate the
Contract.
28. First of all, the Chamber observed that the Claimant failed to adduce any correspondence
sent by the Respondent that could corroborate that he was indeed dismissed due to
sporting performance. Consequently, the Chamber understood that it was tasked to
determine whether the Respondent behaved abusively towards the Claimant in
accordance with the remaining evidence on file.
29. The Chamber noted that the Claimant provided flight tickets between Togo and
Mozambique to corroborate that the Respondent intended to expulse the Claimant
following his allegedly insufficient performance. It should be noted that these tickets
appear to suggest that the booking to Mozambique on 21 resp. 22 June 2022 was made at
the same time as the flight from Mozambique back to Togo on 20 July 2022 (i.e., part of the
same booking).
30. What is more, the flight tickets bore the same booking reference, namely “FZJNXN”.
31. In the Chamber’s view, this therefore suggests that the Claimant (or the Respondent) had
already booked a return flight to Mozambique when the Claimant’s travel had been
arranged at the time of the conclusion of the Contract.
pg. 6
REF. FPSD-15305
32. Whilst the Claimant alleged that the Respondent was the one who booked the travel on his
behalf, there is no evidence on file apart from the flight tickets themselves to paint the
context of how the Claimant arrived in Mozambique.
33. In this respect, an exchange of correspondence (be it on WhatsApp or email) in which the
Respondent demonstrably sent the Claimant the flight tickets would, in the Chamber’s
view, have been crucial to establish that the former pre-empted the Claimant’s return on
20 July 2022.
34. Therefore, Chamber was unable to establish a concrete breach of contract by the
Respondent from the flight tickets provided alone.
35. Apart from the flight tickets, the Chamber considered that the evidence on file was very
scarce. The Chamber took note of the invitation letter produced by the Respondent for the
immigration authorities in Mozambique, understood, however, that whilst this letter
corroborates the existence of the Contract, it does not bear any probative value as to a
breach of contract by the Respondent.
36. Moreover, no further evidence related to a potential breach of contract has been adduced,
and the Chamber noted that the Claimant’s line of reasoning entirely hinged on an oral
dismissal which was not adequately corroborated in the case at hand.
37. Lastly, the Chamber wished to point out the limited communication (at least according to
the evidence on file) between the parties. The Claimant contacted the Respondent almost
one year after the alleged signature of the Contract, asking for a signed copy thereof,
making, however, no mention of the Respondent’s alleged abusive termination therein.
Only in the last warning letter dated 2 May 2024 (almost two years after the conclusion of
the Contract) did the Claimant point out the Respondent’s breaches.
38. It was the Chamber’s opinion that opinion that the Claimant should have exhibited far more
urgency, particularly in light of the serious allegation presented against the Respondent.
39. All in all, the Chamber faced difficulties in establishing any wrongdoing by the Respondent,
and, based on the evidence on file, was faced with a situation in which the Claimant left the
Respondent’s premises without any context or attributable fault.
40. In such a vacuum of evidence, the Chamber did not exclude the possibility that the
Claimant travelled to Mozambique to start the contractual activity (be it with a flight booked
by himself or the Respondent, which cannot be confirmed based on the evidence on file),
and pre-emptively booked a flight back to Togo to finalise his move or to tend to his
personal affairs, prior to returning at an unspecified date for the beginning of the season.
pg. 7
REF. FPSD-15305
41. Consequently, the Chamber concluded that the Claimant failed to meet the burden of
proving that the Contract was terminated by the Respondent without just cause, or by
himself with just cause.
42. In light of the abovementioned considerations, the Chamber decided to reject the claim in
full.
d. Costs
43. 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.
44. 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.
45. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 8
REF. FPSD-15305
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Kahomba Sylvain Karango, is rejected.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 9
REF. FPSD-15305
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 – Legal & Compliance Division
396 Alhambra Circle, 6th floor, Coral Gables, Miami, Florida, USA 33134
legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 10