Labour Disputes
Texto da decisão
REF. FPSD-17685
Decision of the
Dispute Resolution Chamber
passed on 19 March 2025
regarding an employment-related dispute concerning
the player Daniel Cudjoe Mensah Gozar
BY:
Dana MOHAMED AL-NOAIMI, Qatar
CLAIMANT:
Daniel Cudjoe Mensah Gozar, Ghana
Represented by Lyrique Dominic du Plessis
RESPONDENT:
Venda Football Academy, South Africa
Represented by Karabo Tshabuse
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REF. FPSD-17685
I. Facts of the case
1.
On 25 July 2024, the Ghanaian player, Daniel Cudjoe Mensah Gozar (hereinafter: the Player
or the Claimant), and the South African club, Venda Football Academy (hereinafter: the Club
or the Respondent), entered into an employment contract (hereinafter: the Contract) valid as
from the date of signature until 30 June 2025.
2.
In clause 8 of the Contract, the parties established the following regarding the Player’s
remuneration:
“8. REMUNERATION
8.1. The footballer shall be paid a monthly salary as recorded on the schedule to this
contract by no later than the last business day of each month.
8.2. The footballer shall not, without the Club’s prior written consent enter into any other
employment or contract which will conflict with his duties and responsibilities under this
agreement save with the prior written consent of the Club.”
3.
Clause 15 included the following:
“15. POOR WORK PERFORMANCE
15.1. if a footballer does not perform to the standard expected of a professional
footballer, then the coach or technical team shall:
15.1.1 Make the footballer aware of the shortcomings in his performance.
15.1.2. Give the footballer an opportunity to be heard, with the assistance of a fellow
footballer or their club employee, should the footballer so desire.
15.1.3. Give the footballer the appropriate instruction, training, guidance or counselling
to enable him to attain a satisfactory standard.
15.1.4 Allow the footballer a reasonable time within which to improve to this required
standard.
15.2. If a footballer continues to perform unsatisfactorily after the Club has complied
with the steps set out above, then the Club shall give the footballer written notice to
attend a meeting to investigate the reasons for the footballer's continued poor
performance. The Club shall inform the footballer of his right to be assisted by a fellow
footballer or other club employee at this meeting.
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15.3. During this meeting the Club shall provide the footballer with an opportunity to
state a case. After hearing the footballer, the Club will decide on appropriate action and
when doing so will consider ways, short of dismissal, to remedy the matter. However,
disciplinary action taken may include dismissal, if no alternative remedy can be found.
15.4. The Club shall provide the footballer with written notice of the decision reached and
reasons therefor whatever the outcome.”
4.
Clause 18 stated (quoted verbatim):
“18. TERMINATION OF EMPLOYMENT
Notwithstanding the fact that this is a fixed term contract, the Club may terminate this
agreement by the giving of 1 (one) month’s written notice prior to its expiry if:
1. The footballer is found guilty of misconduct justifying dismissal;
2. The footballer is found to be incapable of competently fulfilling the job for which he
has been employed.”
5.
The Contract included a schedule in which the parties established that the Player was
entitled to, inter alia, (i) a basic salary of ZAR 24,000 per month from 25 July 2024 to 30 June
2025; and (ii) ZAR 15,000 for flight allowances, of which ZAR 7,500 was to be paid “in
December” and ZAR 7,500 was to be paid “in June”.
6.
On 30 December 2024, the Club sent the following letter to the Player:
“NOTICE: TERMINATION OF FIXED-TERM EMPLOYMENT CONTRACT
Dear Gozar,
We hope this letter finds you well.
We are writing to formally notify you of the termination of your NSL Fixed-Term
Employment Contract dated 25 July 2024 together with ANNEXURE B dated 7 August 2024
with Venda Football Club (’the Club‘), effective 31 December 2024.
This decision has been made due to ongoing non-performance, and failure to meet the
expected professional standards required by the Club.
As per the terms outlined in your contract, the Club has made repeated efforts to support
your development and performance. However, despite these efforts, there has been
insufficient improvement in your performance, and this has ultimately impacted the
Club's ability to achieve its goals for the current season.
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The specific reasons for this termination include but are not limited to: Failure to meet
fitness expectations, inadequate match performance, lack of contribution in training,
lack of contribution in official league matches, among others.
We understand that this is a difficult situation, but after careful consideration, it has been
determined that this course of action is necessary for both the best interests of the Club
and your professional future.
In accordance with the terms of your contract, you are entitled to one month's notice
pay, which shall be effected by no later than 31 January 2025. You will receive your final
salary for December 2024 which will include all outstanding payments due, including any
accrued leave.
Please arrange to return any Club property, including but not limited to kit, training
equipment, access cards, by 31 December 2024.
We would like to thank you for your time at Venda Football Club and wish you all the best
in your future endeavours.“
7.
The Player informed that he has remained unemployed since the termination of the
Contract.
II. Proceedings before FIFA
8.
On 6 January 2025, the Claimant filed the claim at hand before FIFA. A summary of the
parties’ respective positions is detailed below.
a. Claim of the Claimant
9.
The Claimant argued that the Club terminated the Contract without just cause, as the
dismissal was based on his poor performance. In this regard, the Player stated that a
premature termination of a contract can only be considered as an ultima ratio measure.
Conversely, a club is not entitled to prematurely terminate a contract based on alleged
poor sporting performance.
10. Thus, the Player asserted that the Club shall pay compensation based on art. 17 of the
Regulations on the Status and Transfer of Players (hereinafter: the Regulations). In this
respect, the Player mentioned that the end date of the Contract was 30 June 2025 and,
therefore, the residual value should amount to ZAR 159,000, of which ZAR 144,000
corresponds to the salaries for January to June 2025, and ZAR 15,000 to the flight
allowances.
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REF. FPSD-17685
11. The Claimant’s requests for relief were the following (quoted verbatim):
“73. In light of all of the foregoing, the Claimant respectfully requests the FIFA DRC to:
a. Enforce its jurisdiction over the matter;
b. Find the Respondent guilty of breaching the employment contract, entered into
between the parties, without just cause;
e. Order the Respondent to pay the Claimant the amount of ZAR159,000.00 which
amount represents the balance of the Employment Agreement, and which amount is still
outstanding;
f. Impose sporting sanctions on Respondent pursuant to Art. 12bis of the FIFA RSTP;
g. Determine that an interest rate of 5% per annum shall apply over the total amounts
due by Respondent, as from the day immediately after the date in which each of the
amounts due became payable until the date of effective payment; and
h. Order further compensation as the Employment Contract has been terminated during
the protected period.”
b. Reply of the Respondent
12. In its reply, the Club argued that it terminated the Contract in accordance with clause 15,
citing non-performance as the primary reason, and based on the Player’s failure to meet
key performance indicators, despite multiple attempts to address performance concerns.
13. Notwithstanding the above, the Club acknowledged that non-performance is not
recognised as a lawful ground for unilateral termination within the Regulations. However,
the Club asserted that the claim had errors: first, it listed the salary as ZAR 25,000, while
the Contract stated that the Player’s salary was ZAR 24,000 gross monthly. Additionally,
according to the Club, the term “basic salary” in the Contract refers to a gross salary, which
is the amount before any deductions. The Club sustained that the Player’s net salary was
ZAR 20,564.93 and provided several receipts to support this allegation.
14. Based on the above, the Club mentioned that the actual remaining amount for the balance
is ZAR 138,384, of which ZAR 123,384 corresponds to salaries (ZAR 20,564 net times 6
months) and ZAR 15,000 to flight allowances.
15. Furthermore, the Club stated that the termination was made in good faith, in accordance
with local labour laws and contractual terms approved by the National Soccer League of
South Africa. Thus, the Club argued that, at the time of termination, it genuinely believed
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that non-performance constituted just cause. In this sense, the Respondent requested not
to be sanctioned.
16. The Respondent’s requests for relief were the following:
“26. In light of these considerations, the Respondent prays that the FIFA Dispute
Resolution Chamber (DRC) determines the matter fairly, recognizing the mitigating
factors in this case. The Respondent further requests that any compensation award
granted be strictly limited to the net contractual entitlements (being an amount of ZAR
138 384.00) due to the Claimant, without additional interest or punitive measures, in
accordance with FIFA’s established principles of proportionality and fairness.”
c. Replica of the Claimant
17. In the replica, the Player denied that his salary was stipulated as a gross amount. In this
regard, the Player argued that if the parties had intended for this amount to be a gross
amount, they would have specified it, which they did not. Thus, the Player argued that he
is entitled to the entire monthly salary of ZAR 24,000.
18. Additionally, the Player stated that the Contract did not provide that his salary was subject
to any taxes, or that the Club was obliged to withhold any taxes or other amounts from it.
19. According to the Player, apart from evidencing that it unilaterally withheld various amounts
from his salary, the Club did not provide any proof that “basic salary” meant “gross salary”.
d. Duplica of the Respondent
20. Despite having been invited to do so, the Respondent failed to provide its duplica.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
21. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter: the 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 6 January 2025 and submitted
for decision on 19 March 2025. Taking into account the wording of art. 31 and 34 of the
January 2025 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.
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REF. FPSD-17685
22. Furthermore, 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 par. 1 lit. b) of the
Regulations (January 2025 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 Ghanaian player and a South African club.
23. 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. 29 of
the Regulations, the January 2025 edition of the Regulations is applicable to the matter at
hand as to the substance.
b. Burden of proof
24. 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 she 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
25. Having established the competence and the applicable regulations, 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 she will refer only to the facts, arguments and documentary evidence,
which she considered pertinent for assessing the matter at hand.
i. Main legal discussion and considerations
26. The Single Judge then moved to the substance of the matter, noting that it concerned a
claim of a player against a club for compensation due to breach of contract.
27. In this regard, the Chamber noted that, according to the Player, the Club terminated the
Contract without just cause and must pay compensation equal to the residual value.
28. The Chamber also observed that the Club acknowledged that the termination was made
without just cause but argued that the Player calculated the compensation based on a
gross salary. Therefore, the Club stated that the amount requested by the Player shall be
reduced, as his salary was subject to deductions.
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29. In this context, the Single Judge concluded that it is undisputed that the Club terminated
the Contract without just cause. For the sake of completeness, the Single Judge wished to
recall that according to the well-established jurisprudence, poor sporting performance
cannot be considered just cause for terminating a contract.
30. Hence, the Single Judge acknowledged that her only task was to establish the
consequences of such unjustified breach of contract committed by the Respondent.
A. Outstanding remuneration
31. The Single Judge first noted that the Contract was terminated by a letter dated 30
December 2024, which established that the termination would be effective on 31
December 2024.
32. Additionally, the Single Judge highlighted that the Player acknowledged that the Club paid
all the salaries up to that date and is only claiming compensation. Therefore, the Single
Judge concluded that there were no salaries left to be considered as outstanding.
33. Nonetheless, the Single Judge also observed that the Contract stipulated a payment of ZAR
15,000 for the flight allowances, of which ZAR 7,500 was to be paid “in December” and ZAR
7,500 “in June”. Although the Single Judge saw that the Contract did not specify the exact
due date for these payments, she considered that the Club had until 31 December 2024 to
pay the first instalment for the flight allowances. As the Club acknowledged owing ZAR
15,000 for the flight allowances in its response to the claim, the Single Judge concluded that
it admitted not having paid the first instalment.
34. Taking into account that the Contract was terminated on 31 December 2024, and the Club
was obliged to pay this instalment on the same day but failed to do so, the Single Judge
considered the first instalment of the flight allowances as outstanding remuneration,
rather than as part of the compensation, as requested by the Player.
35. Consequently, in accordance with the general legal principle of pacta sunt servanda, the
Single Judge decided to award the Player ZAR 7,500 as outstanding remuneration. Since
the Player requested interest as from the day after the due date, and taking into
consideration the constant practice of the Football Tribunal in this regard, the Single Judge
decided to award the Claimant interest at the rate of 5% p.a. on the outstanding amount
as from 1 January 2025 until the date of effective payment.
B. Compensation
36. Having stated the above, the Single Judge turned to the calculation of the amount of
compensation payable by the Respondent 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
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contract at the basis of the dispute, with due consideration for the law of the country
concerned 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.
37. In application of the relevant provision, the Single Judge held that she 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.
38. In this regard, the Single Judge recalled that clause 18 of the Contract included the following
termination clause:
“18. TERMINATION OF EMPLOYMENT
Notwithstanding the fact that this is a fixed term contract, the Club may terminate this
agreement by the giving of 1 (one) month’s written notice prior to its expiry if:
1. The footballer is found guilty of misconduct justifying dismissal;
2. The footballer is found to be incapable of competently fulfilling the job for which he
has been employed.”
39. In this respect, the Single Judge interpreted that this termination clause cannot be
considered valid due to its potestative nature, as the provision was completely subjective
and could only be assessed by one party.
40. In addition to the interpretation through the lens of a termination clause, the Single Judge
underscored that the same provision could also be read as a compensation clause i.e., the
Player would only be entitled to one monthly salary in case of termination. However, the
Single Judge found this interpretation also problematic as it gives the Club an unfair
advantage over the Player and therefore the proportionality criterion is not met.
Furthermore, the Single Judge highlighted that the clause is not reciprocal, as it only
referred to the hypothesis of the Club terminating the contractual relationship and shall in
any event be deemed null and void in line with the well-established jurisprudence of the
Football Tribunal.
41. 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.
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42. 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 until its end date.
43. At this point, the Single Judge noted that the parties disputed whether the basic salary
stipulated in the Contract was gross or net for calculating compensation. In this regard, the
Single Judge observed that the Contract did not include any specification: it only mentioned
that the Player was entitled to a basic salary of ZAR 24,000 per month.
44. Although the Club provided some receipts to prove the deductions, and their authenticity
was not disputed, the Single Judge underlined that the Player mentioned that the
deductions were made without any basis.
45. In this respect, the Single Judge stated that (i) the Contract did not stipulate that the Club
would deduct any amount, and (ii) although the receipts show that the Club made several
deductions, she cannot determine whether this was actually the tax obligation, or who
imposed this tax scheme.
46. Additionally, the Single Judge remarked that the Player is not requesting this amount as net
and is only requesting the exact amount that the parties agreed upon in the schedule of
the Contract. In this sense, the Single Judge decided to award the Player compensation
based on the amount stipulated in the Contract, without awarding the amounts as “net” as
(i) the Contract did not stipulate this, and (ii) the Player did not request it.
47. Next, the Single Judge indicated that the Player was entitled to a salary of ZAR 24,000, and
the Contract would have been valid until 30 June 2025. Therefore, the Single Judge
acknowledged that there were six months remaining when the Club terminated the
Contract. Consequently, the Single Judge concluded that the amount of ZAR 144,000 (i.e.
ZAR 24,000 times 6) serves as the basis for the determination of the amount of
compensation for breach of contract.
48. Furthermore, the Single Judge recalled that the Player was entitled to ZAR 7,500 for the
second instalment of the flight allowances, which was to be paid in June. Thus, the Single
Judge considered that this amount should be added to the compensation.
49. In continuation, the Single Judge verified as to whether the Claimant 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 Football Tribunal 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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50. In this respect, the Single Judge noted that the Player remained unemployed since the
termination of the Contract.
51. Thus, the Single Judge referred to art. 17 par. 1 lit. i) of the Regulations, according to which,
in case the player did not sign any new contract following the termination of his previous
contract, as a general rule, the compensation shall be equal to the residual value of the
contract that was prematurely terminated.
52. Consequently, on account of all the above-mentioned considerations and the specificities
of the case at hand, the Single Judge decided that the Respondent must pay the amount of
ZAR 151,500 to the Claimant, which was to be considered a reasonable and justified
amount of compensation for breach of contract in the present matter.
53. Lastly, 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
on said compensation at the rate of 5% p.a. as of 1 January 2025 until the date of effective
payment.
ii. Compliance with monetary decisions
54. 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.
55. 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.
56. 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.
57. 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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58. 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
59. 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.
60. 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.
61. 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, Daniel Cudjoe Mensah Gozar, is partially accepted.
2.
The Respondent, Venda Football Academy, must pay to the Claimant the following
amounts:
- ZAR 7,500 as outstanding remuneration plus 5% interest p.a. as from 1 January 2025
until the date of effective payment;
- ZAR 151,500 as compensation for breach of contract plus 5% interest p.a. as from 1
January 2025 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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NOTE RELATED TO THE APPEAL PROCEDURE:
According to art. 50 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., art. 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
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