Labour Disputes
Texto da decisão
REF. FPSD-14302
Decision of the
Dispute Resolution Chamber
passed on 29 June 2024
regarding an employment-related dispute concerning
the player Takunda Mcdonald Mkunga
BY:
Alejandro ATILIO TARABORELLI (Argentina), Single Judge
CLAIMANT:
Takunda Mcdonald Mkunga, Zimbabwe
Represented by Desmond Maringwa
RESPONDENT:
Tafic SC, Botswana
pg. 2
REF. FPSD-14302
I. Facts of the case
1.
On an unspecified date, the Player Takunda Mcdonald Mkunga from Zimbabwe (hereinafter:
Claimant or Player) and the club Tafic SC (hereinafter: Club or Respondent) from Botswana
concluded an employment contract (hereinafter: contract) valid as from 11 August 2023 until 30
June 2024.
2.
According to clauses 3 and 4 of the contract:
“3. REMUNERATION
The employee shall be entitled to a monthly salary of $700.00, after tax. The salary will be paid at
the latest on the last day of the relevant month.
4. OTHER BENEFITS
4.1. In addition to the monthly salary the employee is entitled to the following financial benefits:
a. Signing on fee of: $2 000.00 ($1 000.00 to be paid after we receive the player’s
International Transfer Certificate. The balance of $1 000.00 to be paid after issuance
of work permit).
b. Transport allowance of: n/a
c. Housing: free accomodation.
d. Winning bonus of: n/a
e. Draw bonus of: n/a
f. Travelling allowance of: n/a
g. Appearance fee: n/a”
3.
On 19 September 2023, the Claimant put the Respondent in default in which he stated as
follows:
“(…) The player only received US$400.00 part payment of his monthly salary to date and he has
not received his signing on fees as stipulated in his employment contract and the club did not
request for his International transfer certificate and also the club did not applied for his work
permit hence depriving the player of his right to play. The player has tried on numerous occasions
to try and seek audience with the club to rectify the contract situation but his communication has
been ignored.
We have noted with great concern the unilateral termination of the employment contract without
just cause as of the 20th of August 2023 when the player was asked to leave by the club officials
because they could not accommodate him in the team anymore.
In this respect, we would like to point out the club has not fulfilled its contractual obligation of
paying Mr Mkunga his full salaries for the months of August 2023 and September 2023 and his
signing on fees as stated in the employment contract.
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REF. FPSD-14302
The club did not facilitate and apply for his ITC and work permits that he can be able to fulfil his
contractual obligations. The non-payment of his salaries and signing on fees and the failure by
the club to apply for an ITC/work permit is a serious breach and violation of his employment
contract.
As a result, we herewith formally put Tafic Football Club in default and we urgently ask you to pay
the player a total amount of US$3000.00 as stipulated in the employment of employment within
the following 10 days into his the bank account below, in order to remedy the current breach.
Please note should Mr Mkunga not receive the payment of US$3000.00 in his bank account below
and should the club not facilitate his ITC/Work permit within the following 10 days, he reserves
the right to the termination of his employment contract with just cause and to initiate legal
proceedings against Tafic Football club at FIFA DRC without any further communication with you.
(…)”.
4.
On 19 October 2023, the Claimant put the Respondent in default for a second time, in which he
granted a final deadline of 5 days for the club to cure the breach by paying him his salaries, and
3 days for the issuance of his International Transfer Certificate - ITC.
5.
On 27 October 2023, the player terminated the contract via letter to the club with reference to
art. 14 and 17 of the Regulations on the Status and Transfer of Players - RSTP.
6.
The player remained unemployed following the termination of the contract.
II. Proceedings before FIFA
7.
On 4 April 2024, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Position of the Claimant
8.
According to the Claimant:
•
The Club's actions, such as failing to remunerate the Player, not requesting his ITC, not
registering him, and not providing him with a work permit, constitute abusive behaviour.
According to Article 14 of the FIFA RSTP, any abusive conduct of a party aiming at forcing
the counterparty to terminate or change the terms of the contract entitles the
counterparty to terminate the contract with just cause. The player claims that the Club's
lack of interest in his services and failure to fulfil its contractual obligations justifies his
termination of the contract.
•
In addition, the player argues that the Club breached its essential obligations. This loss
of trust is an essential element of any employment relationship. The player claims that
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REF. FPSD-14302
the Club's actions gave him just cause for terminating the contract on the grounds of art.
14 and 17 RSTP.
9.
The request for relief of the player is as follows:
“As a consequence of all of the above, the Player is requesting the FIFA DRC to sanction the Club,
determine that it terminated the employment contract without just cause on 20 August 2023, and
order the Club to pay the Player the following amounts:
I. Outstanding salaries:
USD 2,000 plus 5% interest as of 11 August 2023 until the effective day of payment.
USD 300 plus 5% interest as of 1 September 2023 until the effective day of payment.
USD 700 plus 5% interest as of 1 October 2023 until the effective day of payment.
USD 700 plus 5% interest as of 27 October 2023 until the effective day of payment.
II. Compensation:
USD 5,600 plus 5% interest as of 27 October 2023 until the effective day of payment.
III. Additional compensation:
USD 4,200.
IV. In addition, the Player is requesting the FIFA DRC to impose sporting sanctions on the Club for
the breach of contract within the protected period. “
b. Position of the Respondent
10. On 5 April 2024, the FIFA general secretariat invited the Respondent to file its position by 25
April 2024.
11. On 25 April 2024, the Respondent filed its position, which included a counterclaim against the
Player, however incomplete.
12. On 26 April 2024, the FIFA general secretariat invited the Respondent to complete its
counterclaim by 30 April 2024, failing which it would be deemed withdrawn per art. 21 of the
Procedural Rules Governing the Football Tribunal.
13. Absent any reply within the aforementioned deadline, the FIFA general secretariat confirmed
on 2 May 2024 that the counterclaim of the Respondent was deemed withdrawn, and closed
the submission phase of the proceedings.
14. On 6 May 2024, the Respondent filed an unsolicited submission requesting the opportunity to
complete its counterclaim, which was denied by the FIFA general secretariat.
15. In its reply, the Respondent presented the following arguments:
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REF. FPSD-14302
•
The Player's claim should be dismissed and the Player should be penalized for dishonesty.
The club argues that the Player received BWP80.00 for transport to Zimbabwe to collect his
release letter but never returned with the letter or returned the money.
•
The Club also argues that the Player received an advance payment of USD 400.00 but never
returned to render his services to the club. The Player did not disclose this in his
documentation presented to the Club.
•
The Player breached the contract by failing to provide proof that he was a free agent. The
club states that the Player, as a free agent, was obligated to provide proof to the club so that
the club could give effect to the contract. The Player's failure to do so, even after the club's
assistance, is seen as a breach on his part.
•
The contract was never validated or put into effect because the Player never produced the
release letter. The club argues that the contract the Player seeks to enforce was never
validated or put into effect because the Player never provided the release letter to the club.
The club claims that nowhere in the Player's papers does he mention giving the club the
letter.
16. The club presented the following evidence in support of its position, all of which consists of
screenshots of text messages.
•
The club attached proof of the transaction where they allegedly sent BWP 80.00 to the Player
as bus fare via an electronic banking application known as e-wallet on 18 August 2023. By
the same token, the Club claimed that the Player cashed the BWP80.00 on 19 August 2023.
•
The club stated that they made an advance payment of USD 400.00 to the Player. They
attached a transfer voucher order number: 106 848 706, indicating that the money was sent
via Mukuru money transfer on 19 August 2023. They stated that the Player cashed the
money on the same day at 11:45 CAT, and they believe it was cashed in Bulawayo,
Zimbabwe.
•
Lastly, the Club attached a screenshot of a WhatsApp message from the Player expressing
his displeasure and demanding the balance of USD 300.00. They provided this as evidence
of the Player's behaviour and intentions.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
17. First of all, the Single Judge (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
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REF. FPSD-14302
matter was presented to FIFA on 04 April 2024 and submitted for decision on 29 June 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.
18. 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 (June 2024), he is competent to deal
with the matter at stake, which concerns an employment-related dispute with an international
dimension between an Zimbabwean player and a Botswanan club.
19. 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 (June 2024 edition), and
considering that the present claim was lodged on 04 April 2024, the February 2024 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
20. 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 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
21. The 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 it 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
22. The foregoing having been established, the Single Judge moved to the substance of the matter,
and took note of the fact that this is a claim of a player against a club for breach of contract.
23. According to the Claimant, he terminated the contract with just cause due to outstanding
remuneration. Conversely, The Respondent argued that it paid an advance salary of USD 400
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REF. FPSD-14302
plus BWP 80 so that the Player could return to Zimbabwe to collect his “release letter”, but that
he never returned.
24. On the basis of the foregoing, the Single Judge confirmed that it remained undisputed that the
Club indeed paid USD 400 to the Player. The remainder of the dispute lies therefore in assessing
whether the Player had just cause to terminate the contract, or if he was indeed absent as
claimed by the Club.
25. The Single Judge then noticed that the Club never placed the Player in default regarding his
alleged absence, and that the evidence filed in support of its position cannot demonstrate the
allegations made, except for the payment of USD 400, which is recognized by the Player. What
is more, the Club never replied to any of the default notices sent by the Player.
26. To this effect, the Claimant claims not having received his remuneration corresponding to the
first instalment of the sign-on fee for USD 1,000, plus the unpaid portion of the August salary
for USD 300 plus the full salary of September for USD 700. Furthermore, the Claimant has
provided written evidence of having put the Respondent in default on 19 September 2023, i.e.
at least 15 days before unilaterally terminating the contract on 27 October 2023.
27. The Single Judge confirmed that in the case at hand the Respondent bore the burden of proving
that it indeed complied with the financial terms of the contract concluded between the parties.
Nonetheless, the evidence provided by the Respondent cannot demonstrate its compliance
regarding its financial obligations: it is not possible to verify authenticity and persons involved
in the interactions indicated by the Club in the several WhatsApp screenshots filed as evidence,
without any further supporting documentation.
28. Thus, the Single Judge concluded that the Claimant had a just cause to unilaterally terminate
the contract based on art. 14bis of the Regulations. It follows that it is unnecessary to analyse
other elements raised by the parties.
ii. Consequences
29. 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 Respondent. In doing
so, he observed that the outstanding remuneration at the time of termination comprises of
first instalment of the sign-on fee for USD 1,000, plus the unpaid portion of the August salary
for USD 300, plus the full salaries of September and October for USD 700 each.
30. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Single Judge decided that the Respondent is liable to pay to the Claimant the amounts which
were outstanding under the contract at the moment of the termination, as mentioned above.
31. In addition, taking into consideration the Claimant’s request as well as the constant practice of
the Football Tribunal in this regard, the Single Judge decided to award the Claimant interest at
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REF. FPSD-14302
the rate of 5% p.a. on the outstanding amounts as from their respective due dates until the
date of effective payment.
32. 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, he 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.
33. 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 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.
34. 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 nonexhaustive enumeration of criteria to be taken into consideration when calculating the amount
of compensation payable.
35. 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 USD 6,600 serves as the basis for the determination of the
amount of compensation for breach of contract. This amount is calculated considering the
remainder of the sell-on fee of USD 1,000 plus the salaries from November 2023 to June 2024
(USD 700 * 8 = 5,600)
36. In continuation, the 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 Single
Judge 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.
37. The Player however remained unemployed after the termination of the contract.
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REF. FPSD-14302
38. Subsequently, the Single Judge referred to art. 17 par. 1 lit. ii) of the Regulations, according to
which a player is entitled to an amount corresponding to three monthly salaries as additional
compensation should the termination of the employment contract at stake be due to overdue
payables. In the case at hand, the Single Judge confirmed that indeed the contract termination
took place due to said reason i.e. overdue payables by the club, but since there was no
mitigation to be factored in the calculation, he therefore decided that the Player is not entitled
to receive additional compensation.
39. 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 USD 6,600 to
the Player, which was considered a reasonable and justified amount of compensation for
breach of contract in the present matter.
40. Lastly, taking into consideration the Player’s request as well as the constant practice of the
Football Tribunal in this regard, the Single Jusge decided to award the Player interest on said
compensation at the rate of 5% p.a. as of the date of termination of the contract until the date
of effective payment.
iii. Compliance with monetary decisions
41. 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 party to
pay the relevant amounts of outstanding remuneration and/or compensation in due time.
42. 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.
43. Therefore, bearing in mind the above, the Single 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. 24 par. 2, 4, and 7 of the Regulations.
44. The Respondent shall make full payment (including all applicable interest) to the bank account
provided by the Claimant in the Bank Account Registration Form, which is attached to the
present decision.
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REF. FPSD-14302
45. 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
46. 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.
47. 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.
48. Lastly, the Single Judge concluded the deliberations by rejecting any other requests for relief
made by any of the parties.
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REF. FPSD-14302
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Takunda Mcdonald Mkunga, is partially accepted.
2.
The Respondent, Tafic SC, must pay to the Claimant the following amount(s):
- USD 1,000 as outstanding remuneration plus 5% interest p.a. as from 11 August 2023 until
the date of effective payment;
- USD 300 as outstanding remuneration plus 5% interest p.a. as from 1 September 2023 until
the date of effective payment;
- USD 700 as outstanding remuneration plus 5% interest p.a. as from 1 October 2023 until
the date of effective payment;
- USD 700 as outstanding remuneration plus 5% interest p.a. as from 27 October 2023 until
the date of effective payment;
- USD 6,600 as compensation for breach of contract without just cause plus 5% interest p.a.
as from 27 October 2023 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
5.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, if full payment
(including all applicable interest) is not made 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 the ban shall be
of up to 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 made by the end of
the three entire and consecutive registration periods.
6.
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.
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-14302
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
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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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