Labour Disputes
Texto da decisão
REF. FPSD-9710
Decision of the
Dispute Resolution Chamber
passed on 21 June 2023
regarding an employment-related dispute concerning
the player Ally Hussein Msengi
BY:
Michele COLUCCI (Italy)
CLAIMANT:
Ally Hussein Msengi, Tanzania
RESPONDENT:
FC Swallows, South Africa
pg. 2
REF. FPSD-9710
I. Facts of the case
1. On 15 July 2022, the player Ally Hussein Msengi and FC Swallows concluded an employment
contract valid as from the date of signature until 30 June 2024.
2. Accordingly, the player was entitled to the following:
- ZAR 50,000 gross per month between 1 July 2022 until 30 June 2023;
- ZAR 55,000 gross per month between 1 July 2023 until 30 June 2024;
3. Art. 18 of the contract established the following:
“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 (…)
4. According to the player, in August 2022, the club’s team manager informed him that the club
did not apply for his work permit.
5. Also according to the player, on 11 January 2023, the club verbally and in writing instructed
him to no longer attend training.
6. The club served a transfer ban for the execution of a monetary decision (FPSD-3183) between
29 June 2022 until 27 January 2023).
7. On 23 January 2023, the club sent a proposal to mutually terminate the contract, and
presented the following document:
“Dear Ally,
I the undersigned hereby inform you that, due to the fact that you are not part of the Coaching
department's plan for the current season, you are advised that the club would like to meet with
you to discuss its proposal to terminate your Fixed Term Employment Contract signed with the
club on the 15th July 2022.
You are therefore requested to avail yourself for a meeting (…)”
8. On 30 January 2023, the legal representative of the player sent a correspondence indicating
that the player was informed that he was not registered due to a registration ban imposed
on the club, and granted a deadline until 31 January 2023 in order to be registered.
9. On 13 February 2023, the player sent a termination letter referring to its previous letter,
indicating in addition that he has not been allowed to train for more than two weeks, as well
as that the club refused to register him.
10. The player confirmed that he subsequently remained unemployed.
pg. 3
REF. FPSD-9710
II. Proceedings before FIFA
a. Position of the Claimant
11.
On 23 March 2023, the player lodged a claim before the FIFA Football Tribunal for breach
of contract without just cause and requested the payment of ZAR 800,000 plus 5%
interest p.a. as from 13 February 2023, detailed as follows:
- ZAR 200,000 for the rest of the season 2022/2023 (50,000*4, March to June
2023);
- ZAR 600,000 for the 2023/2024 season.
12.
The player underlined that the employment contract does not make provision for any
specific method to calculate contractual damages.
b. Position of the Respondent
13.
13.
Despite being invited to do so, the Respondent failed to reply to the claim.
pg. 4
REF. FPSD-9710
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
First of all, the Single Judge of the Dispute Resolution Chamber (DRC) (hereinafter also
referred to as Single Judge or Judge) analysed whether he was competent to deal with the
case at hand. In this respect, he took note that the present matter was presented to FIFA
on 23 March 2023 and submitted for decision on 21 June 2023. 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.
2.
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 (March 2023 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 player from
Tanzania and a club from South Africa.
3.
Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he confirmed that, in accordance with art. 26 par.
1 and 2 of the Regulations on the Status and Transfer of Players (March 2023 edition), and
considering that the present claim was lodged on 23 March 2023, the March 2023 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
4.
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 it 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
5.
His 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
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REF. FPSD-9710
documentation on file. However, the Single Judge emphasised that in the following
considerations he will refer only to the facts, arguments and documentary evidence, which
it considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
6.
First of all, the Judge considered the factual background of the case and noted that the
parties concluded and employment contract on 15 July 2022 with a period of validity as
from the date of signature until 30 June 2024.
7.
At the same time, the Judge took well note that club had been serving a transfer ban from
29 June 2022 until 27 January 2023 (ID:3277 Ref: FDD-11976 – FPSD-3183), i.e. during the
period of validity of the contract concluded between the parties.
8.
Subsequently, the Judge observed that the player lodged a claim for breach of contract
without just cause, noting that, on 13 February 2023, he unilaterally terminated the
contract due to his non-registration.
9.
On the other hand, the Judge also observed that the club did not provide any response to
the player's claim. In this respect, the Judge referred to art. 21 of the Procedural Rules,
which establish that "If the respondent(s) fail(s) to submit a response to the claim within the
time limit, a decision will be made based on the file."
10. Therefore, the Judge understood that the legal issue at stake primarily consists of assessing
whether the player had a just cause to terminate the contract due to his non-registration.
The Judge underlined, in particular, that the club signed a contract with the player while
serving a transfer ban.
11. In this respect, the Judge referred to the longstanding jurisprudence of the FIFA Football
Tribunal which clarifies that when a club refuses to register a player, it effectively denies
the player the opportunity to participate in competitions and violates one of his
fundamental rights as a football player.
12. In considering the club's actions, the Judge also considered the club's lack of due diligence
in entering into a contract with the player during the period of a transfer ban that was duly
imposed in accordance with the applicable regulations. Despite being aware of the transfer
ban imposed upon them, the club proceeded to conclude a contract with the player. This
demonstrated a clear disregard for the club's duty to exercise reasonable care and
diligence in their contractual dealings.
13. In addition, and as to his non-registration, the Judge also noted that that the player cannot
be held liable for the club's transfer ban. The transfer ban imposed upon the club was a
result of its own actions, and the player cannot bear the consequences of the disciplinary
situation of the club.
pg. 6
REF. FPSD-9710
14. Based on these considerations, the Judge concluded that the club's actions amounted to a
breach of contract without just cause. As a result, the player had a just cause to terminate
the contract on 13 February 2023, and he is therefore entitled to compensation.
ii. Consequences
15. Having stated the above, the Judge turned their attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent. In
particular, the 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 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.
16. In application of the relevant provision, the 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 Judge established
that no such compensation clause was included in the employment contract at the basis
of the matter at stake.
17. As a consequence, the 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 Judge recalled that said provision provides for a nonexhaustive enumeration of criteria to be taken into consideration when calculating the
amount of compensation payable.
18. Bearing in mind the foregoing as well as the claim of the player, the 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. In particular, the Judge observed
that the player would be paid as follows:
From March 2023 until 30 June 2024, the player would have been paid as follows:
-
ZAR 200,000 for the rest of the season 2022/2023 (50,000*4, March to June
2023);
ZAR 600,000 for the 2023/2024 season.
Total: ZAR 800,000
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REF. FPSD-9710
19. Consequently, the Judge concluded that the amount of ZAR 800,000, as detailed above,
serves as the basis for the determination of the amount of compensation for breach of
contract.
20. In continuation, the Judge verified as to whether the player had signed an employment
contract with another club during the relevant period of time, by means of which he would
have been enabled to reduce his loss of income. According to the constant practice of the
DRC as well as art. 17 par. 1 lit. ii) of the Regulations, such remuneration under a new
employment contract shall be taken into account in the calculation of the amount of
compensation for breach of contract in connection with the player’s general obligation to
mitigate his damages.
21. In this respect, the Judge observed that the player remained unemployed.
22. Lastly, taking into consideration the player’s request as well as the constant practice of the
Football Tribunal in this regard, the Judge decided to award the player interest on said
compensation at the rate of 5% p.a. as of 13 February 2023 (when the contract was
terminated) until the date of effective payment.
iii. Compliance with monetary decisions
23. Finally, taking into account the applicable Regulations, the 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.
24. In this regard the 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.
25. Therefore, bearing in mind the above, the 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.
26. 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 available
in the FIFA Legal Portal.
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REF. FPSD-9710
27. The 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
28. The 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.
29. Likewise, and for the sake of completeness, the 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.
30. Lastly, the Judge concluded his deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 9
REF. FPSD-9710
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Ally Hussein Msengi, is accepted.
2.
The Respondent, FC Swallows, must pay to the Claimant the amount of ZAR 800,000 as
compensation for breach of contract without just cause plus 5% interest p.a. as from
13 February 2023 until the date of effective payment.
3.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the Bank Account Registration Form as available in the FIFA Legal Portal.
4.
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.
5.
The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
6.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-9710
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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