Labour Disputes
Texto da decisão
REF 20-01225
Decision of the
Dispute Resolution Chamber
passed on 13 November 2020,
regarding an employment-related dispute concerning the player Hamisi KIZZA
COMPOSITION
Omar Ongaro (Italy), Deputy Chairman
Daan de Jong (Netherlands), member
Stijn Boeykens (Belgium), member
CLAIMANT:
HAMISI KIZZA, Uganda
Represented by Ms Kaganzi & co
RESPONDENT:
FASIL KENEMA, Ethiopia
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I. FACTS
1.
On 1 March 2018, an Ugandan player, Hamissi Kizza (hereinafter: the player or Claimant) and
an Ethopian club, Fasil Kenema (hereinafter referred: the club or Respondent) concluded an
employment contract (hereinafter: the contract) valid as from 1 March 2018 until 30 March
2020.
2.
According to the contract the Respondent undertook to pay the Claimant a monthly salary of
Ethiopia Birr (ETB) 95,297.
3.
Furthermore in accordance with the contract, the Respondent had the obligation to “provide
the transportation so as the player appear in the training and competition pitches”.
4.
On 14 June 2018, the Respondent sent a letter to the Claimant stating the following:
“your decline of performance and repeatedly found out of discipline in terms of not accepting
orders from the coaches and you tried to create grouping in the players. Therefore the club
has decided to give you this letter of warning issued to you to be improved yourself from such
problem”
5.
On 18 July 2018, the Respondent sent another letter to the Claimant with the same content
as the letter dated 14 June 2018.
6.
During the off-season in “mid-July 2018”, the Claimant was authorised by the Respondent to
return to Uganda for holidays.
7.
According to the Respondent, on 3 September 2018, it sent a letter to the Claimant whereby
it requested the player to report to training within 10 days, otherwise he would be “cancelled
from the players list”.
8.
On 4 September 2018, the Claimant’s agent sent an email to the Respondent indicating that
he was informed of misunderstandings relating to the unpaid salaries of the player as well as
“complete broken communication tendencies of late”. In this regard he requested that the
parties “quickly engage in a discussion which will lead to a conclusive and profitable solution
to both sides”.
9.
On 10 September 2018, the Claimant’s agent sent another email to the Respondent, in which
he confirmed that the player is willing to “settle the rest and start training as well”. He then
requested the Respondent to send the Claimant’s flight ticket directly to his email and further
stated “if not please let me know what your stand is”.
10.
On 18 September 2018, the Claimant’s agent sent another email to the Respondent, indicating
they he finds it disturbing that “some players of mine have been sent tickets to return to
Ethiopia and others simply told to return minus tickets”. He further stated that no formal
communication has been sent to the Claimant about his return and requested the Respondent
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to confirm if they are still interested in the Claimant’s services for the coming season, stating
the following:
a)
b)
“if YES, then I facilitate him with a return ticket to resume training immediately
if No, then we resume talks to have his running contract concluded amicably to a point where
both parties agree to part ways in a gentleman’s way of win-win situation”.
11.
On 28 November 2018, the Claimant sent a letter to the Federation of Uganda Football
Association (hereinafter: FUFA), requesting it “to compel [the Respondent] to inform me about
my contractual status since it’s become quite clear they are not interested in my services
anymore”.
12.
On 21 December 2018, FUFA sent a letter to the Ethiopian Football Federation requesting it
“to intervene into the matter to enable the player receive fair treatment and judgement
required”.
13.
On 6 January 2019, the player signed a new contract with the Uganda club, Vipers Sports Club,
valid as from 6 January 2019 until 31 July 2019, providing a monthly salary of Uganda Shilling
(UGX) 12,000,000 (approx. EUR 2,700 and ETB 90,000).
14.
On 23 July 2019, the player signed another contract with the Uganda club, Proline FC, valid as
from 23 July 2019 until 23 July 2020, providing for a monthly salary of UGX 800,000 (approx.
EUR 200 or ETB 6,000).
15.
On 28 August 2020, the Claimant lodged a claim at FIFA against the Respondent, in his claim,
the player argued that the contract was terminated by just cause by joining his new club in
Uganda on 6 January 2019.
16.
The player stated that he only received his salary until June 2018 and subsequently the
Respondent failed to remit any further salaries.
17.
According to the Claimant, he never received any communication from the club as to when he
shall resume work after his vacation. In this regard, he referred to his requests sent to the club.
18.
Furthermore, the player argued that the club paid his one way ticket to Uganda, but refused
to buy his return ticket, even though it promised to do so. In this context, the Claimant alleged
that it paid for a teammate’s flight ticket back and forth.
19.
In this context, the player stated that the club acted on purpose by not sending him a return
ticket, which is abusive.
20.
Moreover, the player maintained that the dispute started in June 2018, when the Respondent
hired a new coach who was not interested in his services anymore.
21.
The player therefore in its claim to FIFA, requested payment of the following amounts:
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-
ETB 571,782 as outstanding salaries, corresponding to his salaries as of July until December
2018; and
ETB 1,143,564 as compensation for breach of contract, corresponding to the residual value of
the contract.
22.
In its reply to the claim, the Respondent rejected the player’s claim and held that the Claimant
did not return after his holidays.
23.
In this regard, the Respondent pointed out that the contract did not contain any clause
according to which the club had to pay for the player’s flight tickets and that it was the player’s
duty to resume work after his holidays.
24.
As to the player’s argument that the club had paid the return ticket of another player, the
Respondent maintained that said player agreed to have the costs deducted from his salary.
25.
Furthermore, the club held that it requested the player to return with a letter on 3 September
2018 and that it subsequently terminated the player’s contract since he failed to return. In this
regard, the club submitted a “termination letter”, dated 14 August 2018, referring to the
club’s request to the player to return within 10 days and that he failed to do so, which led the
club to terminate the contract with immediate effect.
26.
In conclusion, the club brought forward that it had to send warning letters to the player due
to disciplinary issues before he went on vacation.
II.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred as DRC or Chamber)
analysed whether it was competent to deal with the case at hand. In this respect, the Chamber
took note that the present matter was submitted to FIFA on 28 August 2020. Consequently,
the DRC concluded that 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 (cf. art. 21 of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules
and confirmed that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players (edition August 2020) the Dispute Resolution
Chamber is competent to deal with the matter at stake, which concerns a dispute with an
international dimension between an Ugandan player and an Ethiopian club.
3.
Furthermore, 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 (edition February 2021), and considering that
the present claim was lodged on 28 August 2020, the August 2020 edition of said regulations
(hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
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4.
The competence of the Chamber and the applicable regulations having been established, the
Chamber entered into the substance of the matter. In this respect, the Chamber started by
acknowledging all the above-mentioned facts as well as the arguments and the documentation
submitted by the parties. 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.
5.
Having said that, the members of the Chamber acknowledged that the player and Respondent,
on 1 March 2018, concluded an employment contract valid as from 1 March 2018 until 30
March 2020, in accordance with which the Respondent undertook to pay the player a monthly
salary of ETB 95,297.
6.
Subsequently, the Chamber took note that on 28 August 2020, the player lodged a
claim against the Respondent, requesting payment of the following amounts:
-
ETB 571,782 as outstanding salaries, corresponding to his salaries as of July until
December 2018; and
ETB 1,143,564 as compensation for breach of contract, corresponding to the residual
value of the contract.
-
7.
In continuation, the DRC noted that the player alleged that the club breached the contract as
he only received his salary until June 2018 and subsequently the Respondent failed to remit
any further salaries. The player further emphasised that the dispute started in June 2018, when
the Respondent hired a new coach who was not interested in his services anymore. Moreover,
the player indicated that the club refused to buy his return flight ticket to Ethiopia after his
vacation in Uganda.
8.
The DRC acknowledged the argument of the player in which he indicated that the contract
was terminated by just cause by him joining his new club in Uganda on 6 January 2019.
9.
The Chamber noted that the Respondent, on the other hand, rejected the claim put forward
by the player and argued that on 3 September 2018, it requested the player to return to the
club and that it subsequently terminated the player’s contract since he failed to return.
10.
Furthermore, that the Respondent argued that the contract did not contain any clause
stipulating that it was the club’s obligation to pay for the player’s flight tickets and that it was
the player’s duty to resume work after his holidays.
11.
The members of the Chamber highlighted that the underlying issue in this dispute, considering
the diverging position of the parties, was to determine as to whether the contract had
been validly terminated and whether the Respondent was contractually obligated to purchase
the flight ticket of the player.
12.
The Chamber acknowledged that the player is, in particular, convinced that the Respondent is
no longer interested in his services, since it did not provide him with the relevant flight ticket
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in order to join the club. Moreover that the Respondent, on the other hand held that it issued
a letter on 3 September 2018 requesting the return of the player and that it subsequently
terminated the player’s contract since he failed to return.
13.
In accordance with the information on file, the Chamber noted that the correspondence
between the parties appears to be incomplete and the date of the alleged termination of the
Respondent is not clear, as the club failed to communicate a date when the player had to
return. However, the DRC acknowledged that the receipt of said correspondence is contested
by the player and no proof of transmission was provided by the Respondent.
14.
It therefore - according to the members of the Chamber - appears that the parties exchanged
some correspondence until 18 September 2018, when the player requested if his services are
still wanted, which correspondence remained unanswered by the Respondent. Subsequently,
it appears that both parties have given up interest in the employment relationship after this
correspondence.
15.
Furthermore, the Chamber took note of the fact that the relevant employment contract does
not establish any agreement regarding the bearing of the costs of the player’s flight tickets by
the Respondent.
16.
Carefully analysing the above-mentioned positions of the parties and the abovementioned
facts, the members of the Chamber concluded that both, the player and the Respondent, were
responsible for the non-execution of the employment contract. The player failed to properly
offer his services since it was his obligation to return to work and the club did not seem to be
interested in the player’s services anymore after failing to communicate the return date to the
player.
17.
The DRC further concluded that it was the player’s obligation to pay for his own flight ticket
in order to resume work after his vacation and there was no contractual provision obligating
the Respondent to pay the said flight ticket of the player.
18.
Consequently, the members of Chamber concluded that it is evident that the parties did not
act as asserted and the DRC must consider that neither the player nor the Respondent were
interested in the execution of the employment contract.
19.
In light of the above, the members of the Chamber decided unanimously that both parties bear
an equal part of the responsibility for the non-execution of the relevant employment contract.
20.
In this regard, the Chamber stated that due to the specific and unclear situation and taking
into account the considerations above, the members of the Chamber concluded that the
contract was terminated at the end of September 2018, since both parties lost interest in the
contractual relationship thereafter.
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21.
As to the outstanding remuneration, the DRC noted that the claim was lodged on 28 August
2020 and that in accordance with art. 25. par. 5 RSTP, the salary of July 2018 is to be
considered time-barred.
22.
Furthermore, as to the player’s salaries for August and September 2018, the DRC noted that
the player would have had to return to the club to properly offer his services and due to dispute
about the flight ticket, which he failed to do so. As a result of these circumstances, especially
because the player failed to resume his work, the members of the Chamber concluded that no
remuneration shall be payable by the club to the player for the months of August and
September 2018.
23.
In view of the above, the Dispute Resolution Chamber rejected the Claimant’s claim, insofar it
is considered to be admissible.
III.
DECISION OF THE DISPUTE RESOLUTION CHAMBER
The claim of the Claimant, Hamisi KIZZA is rejected, insofar it is admissible.
For the Dispute Resolution Chamber:
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:
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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