Labour Disputes
Texto da decisão
REF FPSD-7005
Decision of the
Dispute Resolution Chamber
passed on 12 October 2022
regarding an employment-related dispute concerning the player Justin
Junior Mengolo
BY:
Sihon Gauci (Malta)
CLAIMANT:
Justin Junior Mengolo, Cameroon
RESPONDENT:
Wiliete Sport Clube De Benguela, Angola
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I. Facts of the case
1.
On 6 January 2022, the Cameroonian player, Justin Junior Mengolo (hereinafter: the
Claimant), and the Angolan club, Wiliete Sport Clube de Benguela (hereinafter: the
Respondent) signed an employment contract (hereinafter: the Contract) valid as from the
date of signature until the end of the season 2023/2024.
2.
Based on the information contained in the Transfer Matching System (TMS), the
contractual term is taken to be 31 May 2024.
3.
In accordance with art. 5 of the Contract, the Respondent undertook to pay to the
Claimant inter alia the following remuneration:
-
AOA 550,000 per month, for the entire duration of the Contract, which may
discretionally be increased to AOA 775,000 per month if the Claimant has a “positive
performance”;
-
AOA 1,100,000 as a guaranteed signing bonus;
-
AOA 27,500 as a goal-scoring bonus;
-
AOA 13,750 as an assist-bonus.
4.
Furthermore, in accordance with the same article, it was stipulated that the Respondent
may unilaterally reduce the Claimant’s salary by 50% if he plays in less than 40% of all
official matches due to poor performance.
5.
Moreover, art. 4 lit. d) of the Contract stipulated that the Respondent would undertake
the costs of food and accommodation for the Claimant throughout the term of the
Contract.
6.
On 3 June 2022, the Claimant and the Respondent signed a mutual termination
agreement (hereinafter: the Termination Agreement).
7.
On 29 March 2022, the Claimant suffered an injury during an official match whilst playing
for the Respondent.
8.
According to the Claimant, from this point onwards, the Respondent ceased sending him
food, as previously arranged, and stopped paying the bills for the hotel at which he was
lodged. In this respect, the Claimant alleged that he was forced to pay the remaining hotel
bill of AOA 160,350 and subsequently vacate his room.
9.
During his time with the Respondent, the Claimant alleged only having received the
signature bonus of AOA 1,100,000, the salary for January 2022 and half of the salary for
February 2022. In this respect, when raising the fact that his salary was only partly paid in
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February 2022 with a teammate, the Claimant was allegedly informed by the latter that
he should “not complain or otherwise something bad will happen”.
10. For the month of March 2022, the Claimant once again only received half of his salary.
11. On 3 June 2022, the Respondent made a payment of AOA 700,000 to the Claimant and
allegedly coerced the latter into signing the Termination Agreement by threatening him
that it would notify the police of his “illegal situation”. Furthermore, the Respondent
allegedly stated that it wanted to terminate the Contract because the Claimant was
“always injured”.
12. On 1 August 2022, the Claimant and the Cameroonian club Fauve Azur Elite (hereinafter:
the New Club) signed an employment contract (hereinafter: the New Contract) valid as from
the date of signature until 1 August 2024.
13. In accordance with the New Contract, the New Club undertook to pay the Claimant as
guaranteed payments a monthly remuneration of CFA 150,000, as well as a signing bonus
of CFA 1,000,000.
II. Proceedings before FIFA
14. On 9 August 2022, 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
15. According to the Claimant, the Termination Agreement should be declared invalid as the
Respondent coerced the former into entering said agreement, as a result of his injury and
resulting inability to play.
16. The Claimant argued that the Respondent displayed abusive behaviour throughout the
duration of the Contract, paying salaries only partly for two months, and defaulting on
other salary instalments entirely. Furthermore, the Claimant was allegedly told by
teammates that, were he to complain about the partial / non-payments, “bad things”
would happen as a consequence.
17. Furthermore, the Claimant outlined that, due to his injury, the Respondent ceased
supplying him with food and accommodation, forcing the former to pay the bill for the
hotel at which he was lodged before being evicted.
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18. The Claimant asserted that there was no just cause for the termination, on the contrary,
despite the allegedly abusive behaviour of the Respondent, he was always prepared to
continue respecting his obligations under the Contract.
19. Therefore, the Claimant requested payment of outstanding remuneration in the amount
of AOA 1,650,000, corresponding to unpaid salaries, plus AOA 27,500 corresponding to
the goal bonus for a goal allegedly scored during a league match, plus the reimbursement
of the hotel bill which the Claimant was forced to pay himself.
20. Furthermore, the Claimant requested compensation in the amount of AOA 13,200,000,
corresponding to the residual value of the Contract from the date of termination, or
24 months times AOA 550,000.
21. Lastly, no interest was requested on the claimed amounts.
b. Position of the Respondent
22. Despite having been invited to do so, the Respondent did not submit a reply to the claim
within the stipulated time-limit.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
23. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as Single Judge) analysed whether she was competent to deal with the case at hand. In
this respect, she took note that the present matter was presented to FIFA on
9 August 2022 and submitted for decision on 12 October 2022. Taking into account the
wording of art. 34 of the June 2022 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.
24. Subsequently, the Single Judge 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 lit. b) of the
Regulations on the Status and Transfer of Players (July 2022 edition), she is competent to
deal with the matter at stake, which concerns an employment-related dispute with an
international dimension between a Cameroonian player and an Angolan club.
25. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, she confirmed that, in accordance with art. 26
par. 1 and 2 of the Regulations on the Status and Transfer of Players (July 2022 edition),
and considering that the present claim was lodged on 9 August 2022, the July 2022 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
26. 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, she stressed the
wording of art. 13 par. 4 of the Procedural Rules, pursuant to which she may consider
evidence not filed by the parties, including without limitation the evidence generated by
or within TMS.
c. Merits of the dispute
27. Her competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, she started by acknowledging all
the above-mentioned facts as well as the arguments and the documentation on file.
However, she emphasised that in the following considerations she will refer only to the
facts, arguments and documentary evidence, which she considered pertinent for the
assessment of the matter at hand.
i. Main legal discussion and considerations
28. The foregoing having been established, the Single Judge moved to the substance of the
matter, and noted that the Claimant lodged a claim for the unlawful termination of the
Contract by the Respondent.
29. The Single Judge firstly recalled that the Respondent failed to submit its position to the
present claim. Thus, she established that, in accordance with art. 21 par. 1 of the
Procedural Rules, the allegations submitted by the Claimant would be considered as
uncontested in the present matter, and that the question whether or not the Contract
was terminated with just cause would be determined based on the documentation
present on file.
30. In this respect, the Single Judge took note of the allegation that the Respondent behaved
in an abusive manner, not only paying salaries either incompletely or not at all, but also
ceasing to cover accommodation costs and to provide the Claimant with a daily meal.
Furthermore, the Respondent purportedly coerced the Claimant to sign a premature
termination to the Contract because the latter was “always injured”, against a
compensatory payment of AOA 700,000, which corresponded to little over one monthly
salary under the Contract.
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31. It is well-established jurisprudence that a player’s injury does not give rise to just cause
for terminating an employment contract prematurely. Furthermore, the uncontested
allegations of ceasing to pay the Claimant’s accommodation costs and not supplying him
with food as per the Contract clearly constitute abusive behaviour in line with the
Chamber’s longstanding jurisprudence. Lastly, the Claimant had three months of
outstanding salaries due when the Contract was terminated – i.e. on 3 June 2022, the date
of the Termination Agreement.
32. Based on the totality of the circumstances in the present case, the Single Judge considered
that the Respondent behaved in an abusive manner which no longer feasibly encouraged
further collaboration between the two parties.
33. Therefore, the Single Judge concluded that the Contract was terminated on 3 June 2022,
to the Claimant’s detriment, without just cause.
34. Lastly, the Single Judge also considered the Claimant’s request for reimbursement of the
hotel bill in the amount of AOA 160,350, as well as the payment of the goal-scoring bonus
in the amount of AOA 27,500, under art. 5 of the Contract.
35. With regards to the hotel bill in the amount of AOA 160,350, the Single Judge noted that
the Claimant provided evidence demonstrating that said amount had been paid at his
own expense. Furthermore, she recalled that, in accordance with art. 4 lit. d) of the
Contract, the Respondent undertook to pay the Claimant the costs of food and
accommodation for the duration of the Contract. In light of the above, the Single Judge
concluded that he shall be entitled to the reimbursement of said amount, in accordance
with the principle of pacta sunt servanda.
36. Finally, as to the bonus of AOA 27,500, the Single Judge pointed out that the Claimant
provided no evidence as to having satisfied the condition for said bonus as stipulated
under the Contract. Therefore, and in accordance with art. 13 par. 5 of the Procedural
Rules, the Single Judge concluded that the Claimant has not met the burden of proving
that he is entitled to payment of said bonus.
ii. Consequences
37. Having established that the Contract was terminated without just cause on 3 June 2022,
the Single Judge went on to consider the consequences of said unlawful termination.
38. The Single Judge observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, was equivalent to AOA 1,110,350
(i.e., AOA 1,650,000 plus AOA 160,350 minus AOA 700,000).
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39. 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, i.e. AOA 1,110,350.
40. Having stated the above, the Single Judge turned to the calculation of the amount of
compensation payable to the Claimant by the Respondent in the case at stake. In doing
so, she 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, 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 Contract and/or the New Contract, the
time remaining on the Contract up to a maximum of five years, and depending on
whether the contractual breach falls within the protected period.
41. In application of the relevant provision, the Single Judge held that she first of all had to
clarify as to whether the 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 Contract.
42. As a consequence, the Single 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 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.
43. Bearing in mind the foregoing as well as the claim of the Claimant, the Single Judge
proceeded with the calculation of the monies payable to the Claimant under the terms of
the Contract from the date of its unilateral termination, i.e. 3 June 2022, until its end date,
i.e. 31 May 2024. Consequently, it was concluded that the amount of AOA 13,200,000 (i.e.
24 times AOA 550,000, or the residual value of the Contract) serves as the basis for the
determination of the amount of compensation for breach of contract.
44. 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 she 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.
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45. Indeed, the Claimant found employment with the New Club. In accordance with the New
Contract, the former was entitled to CFA 150,000 per month, as well as a signature bonus
of CFA 1,000,000. Therefore, the Single Judge concluded that the player mitigated his
damages in the total amount of CFA 4,300,000 (i.e., 22 times CFA 150,000 plus
CFA 1,000,000), or approximately AOA 2,813,577.93.
46. 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 or more monthly
salaries, depending on the presence of egregious circumstances, 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, as there were
several salary instalments unpaid at the point the Contract was terminated, the Claimant
shall be entitled to additional compensation, in accordance with art. 17 par. 1 lit. ii) of the
Regulations.
47. In this respect, considering that the Respondent had conducted in a way which, in
accordance with the Single Judge’s jurisprudence qualifies as egregious conduct, such as
forcing the Claimant out of his accommodation and ceasing to supply him with food, the
latter deemed that the additional compensation applicable in the present case exceeds
the standard threshold of three months and thus decided to award the amount of
additional compensation of AOA 2,200,000, i.e. four times the monthly remuneration of
the player.
48. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Single Judge decided that the Respondent must pay
the amount of AOA 12,586,422.07 to the player (i.e. AOA 13,200,000 minus
AOA 2,813,577.93 plus AOA 2,200,000), which was to be considered a reasonable and
justified amount of compensation for breach of contract in the present matter.
49. Lastly, taking into consideration that the Claimant did not request interest on any of the
amounts claimed, in accordance with the general legal principle of ne ultra petita, the
Single Judge decided not to award interest in the present matter.
iii. Compliance with monetary decisions
50. 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 her decision, she 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.
51. 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
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overall maximum duration of the registration ban shall be of up to three entire and
consecutive registration periods.
52. 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.
53. 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.
54. 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
55. 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, she decided that no procedural costs were to be
imposed on the parties.
56. 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.
57. Lastly, the Single Judge concluded her 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, Justin Junior Mengolo, is partially accepted.
2.
The Respondent, Wiliete Sport Clube De Benguela, has to pay to the Claimant the
following amount(s):
- AOA 1,110,350 as outstanding remuneration;
- AOA 12,586,422.07 as compensation for breach of contract without just cause.
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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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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