Labour Disputes
Texto da decisão
REF FPSD-5245
Decision of the
Dispute Resolution Chamber
passed on 6 April 2022
regarding an employment-related dispute concerning the player Michael
Kporvi
BY:
Tomislav Kasalo (Croatia)
CLAIMANT:
Michael Kporvi, Ghana
Represented by Eby Emenike
RESPONDENT:
AS du Faso Yennenga, Burkina Faso
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I.
Facts of the case
1.
On 31 July 2021, the Ghanaian player Michael Kporvi (hereinafter: the player) and the
Burkinabe club AS du Faso Yennenga (hereinafter: the club) concluded an employment
contract (hereinafter: the contract), valid between 1 August 2021 and 31 May 2024, based
on which the player was entitled to a monthly salary of West African CFA Franc (CFA)
300,000, a sign-on fee of CFA 3,000,000 as well as accommodation allowance.
2.
On 28 August 2021, the player informed the club that he suffered an injury and was informed
by the club’s president that he should take rest.
3.
On 5 December, 9 December and 17 December 2021, the player requested the club, via
WhatsApp, for a discussion about his future at the club, however to no avail.
4.
On 6 January 2022, the player left Burkina Faso and returned to Ghana.
5.
On 8 January 2022, the player again tried to reach out to the president of the club via
WhatsApp to inquire about his situation, however to no avail.
6.
On 24 January 2022, the player expressed his intention to unilaterally terminate the contract
if the outstanding part of the sign-on fee and the outstanding salaries were not paid on time,
however to no avail.
7.
On 9 February 2022, the player put the club again in default for the payment of the
outstanding part of the sign-on fee and the outstanding salaries, providing it a seven days’
deadline to remedy its default, however again to no avail.
8.
After the termination of the contract, the player remained unemployed.
II. Proceedings before FIFA
9.
On 23 February 2022, the player filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Position of the player
10. In his claim, the player explains that (1) three weeks after 1 August 2021, he received CFA
1,000,000 out of the CFA 3,000,0000 as sign-on fee, (2) at the end of August 2021, he
received the monthly salary of CFA 300,000 and (3) at the end of September 2021, he
received the monthly salary of CFA 300,000.
11. What is more, the player explains that the salaries for October, November and December
2021 were not paid at all.
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12. The requests for relief of the Claimant, as amended, were the following:
Outstanding remuneration:
• CFA 2,000,000 as outstanding part of the sign-on fee;
• CFA 1,500,000 as outstanding salaries for the period between October 2021 and
February 2022;
• plus ‘5% interest’.
Compensation for breach of contract:
• CFA 8,100,000 as residual value of the contract in the period between March 2022
and May 2024;
• plus ‘5% interest’.
b. Position of the club
13. Despite having been invited to do so, the Respondent failed to answer to the Claimant’s
claim.
III. Considerations of the Single Judge of the Dispute Resolution
Chamber
a. Competence and applicable legal framework
14. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to
as Single Judge) analysed whether he was competent to deal with the case at hand. In this
respect, he took note that the present matter was presented to FIFA on 23 February 2022
and submitted for decision on 6 April 2022. Taking into account the wording of art. 34 of
the October 2021 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.
15. Subsequently, the Single Judge referred to art. 2 par. 1 and art. 24 par. 1 lit. a) 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 (March 2022 edition),
he 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 Burkinabe club.
16. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he confirmed that, in accordance with art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Players (March 2022 edition), and
considering that the present claim was lodged on 23 February 2022, the August 2021 edition
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of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
17. The Single Judge 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 Single Judge stressed the
wording of art. 13 par. 4 of the Procedural Rules, pursuant to which he 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
18. Its competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, the Single Judge started by
acknowledging all the above-mentioned facts, as well as the arguments and the
documentation on file. However, the Single 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.
i. Main legal discussion and considerations
19. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that, in view of the lack of a (timely) reply within the
deadline provided to the club, the claim of the player remained uncontested. Consequently,
the Single Judge deemed that the club had renounced to its right of defence and, thus, had
accepted the allegations of the player.
20. As a consequence of the aforementioned considerations, the Single Judge concurred that, in
accordance with art. 21 par. 2 of the Procedural Rules, a decision shall be taken upon the
basis of the documents already on file, in other words, upon the statements and documents
presented by the player.
21. In view of the foregoing, the Single Judge acknowledged that it his task was to determine
whether or not the player had effectively terminated the contract and if so, whether or not
said termination was made with or without just cause, as well as what the consequences of
said termination would be.
22. In this respect, the Single Judge took note that the player did not send a termination letter to
the club by means of which he officially unilaterally terminated the contract in force between
the parties. In this respect, based on the well-established jurisprudence of the Chamber, as
well as the specific circumstances of the matter at hand, the Single Judge decided that it can
understood that by lodging a claim against the club before FIFA on 23 February 2022, the
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player had effectively expressed his intention to not return to the club anymore and thus,
terminated the contract.
23. What is more, the Single Judge considered that on 23 February 2022, 5 monthly salaries, as
well as the sign-on fee remained outstanding, without valid reason, by the club.
Consequently, and considering that the club had repeatedly and for a significant period of
time been in breach of its contractual obligations towards the player, the Single Judge
decided that the player had just cause to unilaterally terminate the employment contract on
23 February 2022 and that, as a result, the club is to be held liable for the early termination
of the employment contact with just cause by the player.
ii. Consequences
24. Having stated the above, the Single Judge turned his attention to the question of the
consequences of such unjustified breach of contract committed by the club.
25. The Single Judge observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are equivalent to 5 salaries under
the contract, for the period between October 2021 and February 2022 in the amount of CFA
300,000 each, as well as the unpaid part of the signing on fee in the amount of CFA
2,000,000, thus in total amounting to CFA 3,500,000.
26. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Single Judge decided that the club is liable to pay to the player the amounts which were
outstanding under the contract at the moment of the termination, i.e. CFA 3,500,000.
27. In addition, taking into consideration the player’s request as well as the constant practice of
the Chamber in this regard, the Single Judge decided to award the player interest at the rate
of 5% p.a. on the outstanding amounts as from 23 February 2022 until the date of effective
payment.
28. Having stated the above, the Single Judge turned to the calculation of the amount of
compensation payable to the player by the club in the case at stake. In doing so, the Single
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 player 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.
29. In application of the relevant provision, the Single Judge held that it first of all had to clarify
as to whether the pertinent employment contract contained a provision by means of which
the parties had beforehand agreed upon an amount of compensation payable by the
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contractual parties in the event of breach of contract. In this regard, the Single Judge
established that no such compensation clause was included in the employment contract at
the basis of the matter at stake.
30. As a consequence, the Single Judge determined that the amount of compensation payable
by the club to the player had to be assessed in application of the other parameters set out in
art. 17 par. 1 of the Regulations. The Single Judge recalled that said provision provides for a
non-exhaustive enumeration of criteria to be taken into consideration when calculating the
amount of compensation payable.
31. Bearing in mind the foregoing as well as the claim of the player, the Single Judge proceeded
with the calculation of the monies payable to the player under the terms of the contract from
the date of its unilateral termination until its end date. Consequently, the Single Judge
concluded that the amount of CFA 8,100,000 (i.e. 27 monthly salaries of CFA 300,00 each)
serves as the basis for the determination of the amount of compensation for breach of
contract.
32. In continuation, them Single Judge verified as to whether the player 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, as well as art. 17 par. 1 lit. ii) of the Regulations, 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.
33. In this respect, the Single Judge noted that the player, after the unilateral termination of the
contract, had remained unemployed and that thus, no further mitigation or additional
compensation shall be applied in the matter at hand.
34. Consequently, on account of all of the above-mentioned considerations and the specificities
of the case at hand, the Single Judge decided that the club must pay the amount of CFA
8,100,000 to the player, which was to be considered a reasonable and justified amount of
compensation for breach of contract in the present matter.
35. Lastly, taking into consideration the player’s request as well as the constant practice of the
Chamber in this regard, the Single Judge decided to award the player interest on said
compensation at the rate of 5% p.a. as of 23 February 2022 until the date of effective
payment.
iii. Compliance with monetary decisions
36. Finally, taking into account the applicable Regulations, the Single Judge referred to art. 24
par. 1 and 2 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
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party to pay the relevant amounts of outstanding remuneration and/or compensation in due
time.
37. In this regard, the Single 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.
38. Therefore, bearing in mind the above, the Single Judge decided that the club must pay the
full amount due (including all applicable interest) to the player within 45 days of notification
of the decision, failing which, at the request of the player, 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. 24 par. 2, 4, and 7 of the Regulations.
39. The club shall make full payment (including all applicable interest) to the bank account
provided by the player in the Bank Account Registration Form, which is attached to the
present decision.
40. The Single 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. 24 par. 8
of the Regulations.
d. Costs
41. The Single Judge 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 Single Judge decided that no procedural costs were
to be imposed on the parties.
42. Likewise and for the sake of completeness, the Single Judge recalled the contents of art. 25
par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
43. Lastly, the Single Judge 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, Michael Kporvi, is accepted.
2.
The Respondent, AS du Faso Yennenga, has to pay to the Claimant, the following amount(s):
- CAF 3,500,000 as outstanding remuneration, plus 5% interest p.a. as from 23 February
2022 until the date of effective payment;
- CAF 8,100,000 as compensation for breach of contract without just cause, plus 5% interest
p.a. as from 23 February 2022 until the date of effective payment.
3.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
4.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players (August 2021
edition), if full payment (including all applicable interest) is not made within 45 days of
notification of this decision, the following consequences shall apply:
1.
2.
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 the ban shall
be of up to three entire and consecutive registration periods.
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 made by the
end of the three entire and consecutive registration periods.
5.
The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
6.
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).
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