Labour Disputes
Texto da decisão
REF FPSD-6524
Decision of the
Dispute Resolution Chamber
passed on 31 August 2022
regarding an employment-related dispute concerning the player
William Opoku Mensah
BY:
Dana Mohamed Al-Noaimi, Qatar
CLAIMANT:
William Opoku Mensah, Ghana
Represented by Professional Footballers Association of Ghana
RESPONDENT:
Mukura Victory Sports et Loisirs Football Club, Rwanda
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REF FPSD-6524
I. Facts of the case
1.
On 27 April 2021, the Ghanian player, William Opoku Mensah (hereinafter: the
Claimant), and the Rwandan club, Mukura Victory Sports et Loisirs FC (hereinafter: the
Respondent) signed an employment contract (hereinafter: the Contact) valid as from
the same date until 30 May 2023.
2.
In accordance with the employment contract, the Respondent undertook to pay to
the Claimant inter alia a monthly salary of RWF 700,000 (Rwandan Francs).
3.
On 28 July 2021, the temporary working visa issued in favour of the Claimant by the
Rwandan government expired.
4.
On 22 April 2022, the Respondent sent a letter to the Claimant informing the latter
that he would be able to resume his training only once he had arranged his own
working permit. Contextually, the Respondent indicated that once such work permit
had been arranged, the Claimant would have been able to train with the second team
only, in order to “regain the best performance”.
5.
By correspondence dated 26 April 2022, the Claimant put the Respondent in default
of two outstanding salaries for the months of September 2021 and April 2022.
Contextually, the Claimant requested his immediate reinstatement in the first team’s
training sessions and demanded the return of his passport as well as the issuance of
his working visas within 7 days in addition to a visa for the Claimant’s wife.
6.
On 5 May 2022, the Claimant sent a second default notice to the Respondent, granting
the latter 3 further days to remedy the breach.
7.
On 9 May 2022, the Claimant issued a third default letter to the Respondent.
8.
On 18 May 2022, the Claimant notified the Respondent the unilateral termination of
the Contract with just cause.
9.
On 23 May 2022, the Claimant paid the sum of RWF 800,000 as penalty fee to leave
Rwanda because of the expiry of his wife’s and his own visa.
10. Following the termination of the Contract, the Claimant remained unemployed.
II. Proceedings before FIFA
11. On 27 June 2022, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
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a. Position of the Claimant
12. According to the Claimant, the Respondent failed to comply with its contractual
obligations related to the payment of the salaries due for the months of September
2021 and April 2022.
13. Furthermore, the Claimant complained that the Respondent failed to provide a valid
working visa for the Claimant and his wife since after their expiration in July 2021 and
in spite of the repeated letters of default.
14. Accordingly, the Claimant held that the Respondent left him with no alternative but
to unilaterally terminate the Contract on 18 May 2022 as a continuation of the
employment relationship had become impossible.
15. The requests for relief of the Claimant, were the following:
-
“1,400,000 RWF as outstanding remuneration for the months of October 2021 and
April 2022;
-
9,100,000 RWF as compensation for breach of contract by fault of the Respondent;
-
800,000 RWF as reimbursement of the penalty fee incurred by the Claimant and his
wife in order to leave Rwanda without a valid VISA
-
USD 500 as reimbursement of the flight tickets purchased by the Claimant to move
outside of Rwanda
-
5% interest per annum on each of the awarded sums”.
b. Position of the Respondent
16. In its reply, the Respondent admitted having excluded the Claimant from the first
team’s training sessions because of the Claimant’s alleged misconduct.
17. In this respect, the Respondent reported a series of events which allegedly led to the
Claimant’ suspension and stated the in spite of being not part of the Contract, the
Respondent decided to cover the Claimant flight tickets to Rwanda as well as his
accommodation in order to prove the club’s good faith.
18. Furthermore, the Respondent argued that it is not clear whether the person
communicating the termination of the Contract on 18 May 2022 had the effective right
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to do so, hence the Claimant’ salary has been withheld for safety reason, whereas the
Claimant disappeared, but the Respondent had no intention of depriving the Claimant
of his salary in a permanent manner.
19. The request for relief of the Respondent, accordingly, was to reject the claim in its
entirety.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
20. 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 27 June 2022 and submitted for decision on 31 August 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.
21. 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 Ghanian player and a Rwandan club.
22. 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 27 June 2022, the June
2022 edition of said regulations (hereinafter: the Regulations) is applicable to the
matter at hand as to the substance.
b. Burden of proof
23. 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).
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c. Merits of the dispute
24. 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 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
25. The foregoing having been established, the Single Judge moved to the substance of
the matter and took note of the fact that the Respondent did not dispute the existence
of a valid contract in force between the latter and the Claimant, nor it has contested
to have had overdue payables towards the Claimant in relation to the salaries due for
October 2021 and April 2022, hence said amounts shall deemed as still outstanding.
26. Furthermore, the Single Judge noted that the same Respondent admitted having
excluded the Claimant from every football-related activity with the Respondent’s
teams.
27. In this context, the Single Judge recalled that the Respondent justified said exclusion
as disciplinary measure against the Claimant’s misconduct. However, the Single Judge
remarked that the Respondent completely failed to corroborate all the facts alleged
in its reply, which therefore bore no relevance in casu and shall be disregarded.
28. Accordingly, the Single Judge ascertained that the Respondent had no right to exclude
the Claimant from the training sessions of the Respondent’s team.
29. Secondly, the Single Judge took note of the Respondent’s doubt about the identity of
the Professional Footballers Association of Ghana (PFAG) as Claimant’s
representatives which notified the unilateral termination of the Contract by hand of
the Claimant on 18 May 2022.
30. In this regard, the Single Judge deemed the Respondent’s objection as moot, namely
because in the first default letter sent by the Claimant on 26 April 2022, the same
PFAG had enclosed a power of attorney signed by the Claimant, hence the
Respondent’s argument cannot be upheld.
31. Subsequently, the Single Judge acknowledged that it its final task was to determine
whether the Claimant had indeed a just cause to unilaterally terminate the Contract
on 18 May 2022.
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32. In this context, the Single Judge wished to point out that the Respondent took
advantage of the fact that the Claimant’s visa expired as an excuse to exclude the
latter from all the teams and training sessions, whereas in the Single Judge’s opinion
the Respondent should have at least facilitated the administrative procedures that
concern the Claimant’s working permits in order to allow the latter to provide his
professional service.
33. In this respect, the Single Judge remarked that it appeared evident the abusive
conduct held by the Respondent, who deprived the Claimant of his right to train with
the rest of the team and did not provide any assistance in order to allow the Claimant
to obtain a valid working permit.
34. Furthermore, the Single Judge highlighted that at the time of the termination, the
Respondent held overdue payables towards the Claimant corresponding to two
salaries, fact which corroborates even more the abuse perpetrated by the
Respondent.
35. In light of the above, the Single Judge determined the Claimant had just cause to
terminate the Contract on 18 May 2022 as there were no premises for the
continuation of the labour relationship between the parties.
ii. Consequences
36. Having stated the above, the Single Judge turned her attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
37. 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 2 salaries under the contract, amounting to RWF 1,400,000.
38. 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. RWF 1,400,000. (i.e. 2 times RWF 700,000).
39. In addition, taking into consideration the Claimant’s request as well as the constant
practice of the Chamber in this regard, the Single Judge decided to award the Claimant
interest at the rate of 5% p.a. on the outstanding amounts as from the relevant due
dates until the date of effective payment.
40. 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
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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.
41. 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.
42. 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.
43. 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 RWF 9,100,000 (i.e. RWF
700,000 x 13) 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 he would have been enabled to reduce his loss of income. According to the
constant practice of the FIFA 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.
45. However, the Single Judge verified that the player did not find any new employment
with another club during the relevant period of time, hence he failed to mitigate his
damages.
46. 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
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amount of RWF 9,100,000 to the player (i.e. RWF 700,000 x 13), which was to be
considered a reasonable and justified amount of compensation for breach of contract
in the present matter.
47. Moreover, taking into consideration the player’s request as well as the constant
practice of the FIFA DRC in this regard, the Single Judge decided to award the player
interest on said compensation at the rate of 5% p.a. as of 27 June 2022 until the date
of effective payment.
48. In addition to the above, the Single Judge established that the Respondent shall be
liable to reimburse the penalty fee that the Claimant had to pay in order to travel out
of Rwanda.
49. In particular the Single Judge considered the said penalty to be a direct consequence
of the lack of support that conversely the Respondent should have had provided to
the Claimant, hence it would be just unfair, in the Single Judge’s view, to burden the
Claimant with the aforementioned fee for which he had de facto no fault.
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 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.
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 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.
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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, the Chamber 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 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, William Opoku Mensah, is partially accepted.
2.
The Respondent, Mukura Victory Sports et Loisirs Football Club, has to pay to the
Claimant, the following amount:
700,000 RWF (Rwandan Francs) as outstanding remuneration plus 5% interest
p.a. as from 1 October 2021 until the date of effective payment;
700,000 RWF as outstanding remuneration plus 5% interest p.a. as from 1 May 2022 until the
date of effective payment;
9,100,000 RWF as compensation for breach of contract without just cause plus 5% interest p.a.
as from 27 June 2022 until the date of effective payment;
800,000 RWF as reimbursement of VISA fee.
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 the ban shall be of 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 article 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:
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Emilio García Silvero
Chief Legal & Compliance Officer
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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