Labour Disputes
Texto da decisão
REF. FPSD-12584
Decision of the
Dispute Resolution Chamber
passed on 23 January 2024
regarding an employment-related dispute concerning
the player Abraham Ndugwa
BY:
Jon NEWMAN (USA)
CLAIMANT:
Abraham Ndugwa, Uganda
Represented by Pius Ndubuokwu
RESPONDENT:
FK Dembava, Lithuania
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REF. FPSD-12584
I. Facts of the case
1. On 14 March 2023, the Ugandan player Abraham Ndugwa (hereinafter: the Claimant or the player)
and the Lithuanian club FK Dembava (hereinafter: the Respondent or the club) concluded an
employment contract (hereinafter: the Contract) valid until 14 March 2025.
2. Art. 4 of the Contract reads as follows:
1. The Club undertakes to pay to the Player remuneration and other payouts in amount of:
a. Monthly wage of 840 (eight hundred forty) euros.
b. Accommodation during contract.
3. On 21 October 2023, the Claimant sent a default notice to the Respondent requesting the amount
of EUR 5,880 corresponding to the months of March to September 2023, granting a deadline of
15 days to comply, to no avail.
4. On 8 November 2023, the Claimant sent a notice of termination to the Respondent.
5. On 1 December 2023, the Claimant informed that he remained unemployed.
II. Proceedings before FIFA
6. On 8 November 2023, 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
7. The Claimant sustains that the Respondent had failed to comply with its contractual obligations
and thus he is entitled to the outstanding amounts and compensation for breach of contract.
8. The Claimant filed the following requests for relief:
21. The Claimant respectfully urges the DRC to award the Claimant the underlisted reliefs in the
present dispute. The breakdown of the Claimant’s relief is as follows:
● Outstanding salary for the month of March 2023 (€840) plus 5% interest Per Annum as from the
due date of payment.
● Outstanding salary for the month of April 2023 (€840) plus 5% interest Per Annum as from the
due date of payment.
● Outstanding salary for the month of May 2023 (€840) plus 5% interest Per Annum as from the
due date of payment.
● Outstanding salary for the month of June 2023 (€840) plus 5% interest Per Annum as from the
due date of payment.
● Outstanding salary for the month of July 2023 (€840) plus 5% interest Per Annum as from the
due date of payment.
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REF. FPSD-12584
● Outstanding salary for the month of August 2023 (€840) plus 5% interest Per Annum as from the
due date of payment.
● Outstanding salary for the month of September 2023 (€840) plus 5% interest Per Annum as from
the due date of payment.
● €15,120 which is the residual value of the contract from October 2023 to 14 March 2025 as
compensation for breach of contract.
b. Position of the Respondent
9. Despite being invited to file its position, the Respondent failed to reply to FIFA.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
10. 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 matter was
presented to FIFA on 8 November 2023 and submitted for decision on 23 January 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.
11. 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 (May 2023), he is competent to deal with
the matter at stake, which concerns an employment-related dispute with an international
dimension between a Ugandan player and a Lithuanian club.
12. 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 (May 2023 edition), and considering
that the present claim was lodged on 8 November 2023, the May 2023 edition of said regulations
(hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
13. 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.
c. Merits of the dispute
14. 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
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REF. FPSD-12584
above-mentioned facts as well as the arguments and the 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 he considered pertinent for the assessment of the
matter at hand.
i. Main legal discussion and considerations
15. The foregoing having been established, the Single Judge moved to the substance of the matter
and took note of the fact that he had to adjudicate on the justice of the early termination of the
contract by the Claimant, based on the alleged non-payment of certain financial obligations by
the Respondent as per the Contract, in accordance with art. 14bis of the Regulations.
16. In this context, the Single Judge acknowledged that his task was to determine, based on the
evidence presented by the parties, whether the claimed amounts had in fact remained unpaid by
the Respondent and, if so, whether the formal pre-requisites of art. 14bis of the Regulations had
in fact been fulfilled. In this regard, the Single Judge underlined that the Respondent had not
replied to the claim and therefore, the arguments of the Claimant remain uncontested.
17. The Single Judge then referred to the wording of art. 14bis par. 1 of the Regulations, in accordance
with which, if a club unlawfully fails to pay a player at least two monthly salaries on their due
dates, the player will be deemed to have a just cause to terminate his contract, provided that he
has put the debtor club in default in writing and has granted a deadline of at least 15 days for the
debtor club to fully comply with its financial obligation(s).
18. The Single Judge noted that the Claimant claims not having received his remuneration
corresponding to the months of March to September 2023. Furthermore, the Single Judge noted
that the Claimant has provided written evidence of having put the Respondent in default on 21
October 2023, i.e. at least 15 days before unilaterally terminating the Contract on 8 November
2023.
19. The Single Judge also noted 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 Respondent has not replied to the claim.
20. Thus, the Single Judge concluded that the Claimant had a just cause to unilaterally terminate the
contract, based on art. 14bis of the Regulations.
ii. Consequences
21. Having stated the above, the members of the Single Judge turned their attention to the question
of the consequences of such unjustified breach of contract committed by the Respondent.
22. 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 8 monthly salaries under the
contract (i.e. March to October 2023), amounting to EUR 6,720 (EUR 840 * 8 months).
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REF. FPSD-12584
23. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the
Chamber 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. EUR 6,720.
24. 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 respective due dates until the date of effective
payment.
25. 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 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.
26. 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.
27. 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.
28. 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 EUR 14,280 (i.e. EUR 840 * 17 months (November 2023 to March 2025) serves as the
basis for the determination of the amount of compensation for breach of contract.
29. 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 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.
30. Notwithstanding the above, the Claimant informed that he remained unemployed.
31. Consequently, on account of all of the above-mentioned considerations and the specificities of
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REF. FPSD-12584
the case at hand, the Chamber decided that the club must pay the amount of EUR 14,280 to the
player, which was to be considered a reasonable and justified amount of compensation for breach
of contract in the present matter.
32. Lastly, taking into consideration the absence of a player’s request for interest to be awarded on
the said compensation, the Single Judge determined that interest shall not to be granted.
iii. Compliance with monetary decisions
33. 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.
34. In this regard, the Single Judgehighlighted 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.
35. 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.
36. 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.
37. 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
38. 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.
39. 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.
40. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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REF. FPSD-12584
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Abraham Ndugwa, is accepted.
2.
The Respondent, FK Dembava, must pay to the Claimant the following amount(s):
- EUR 6,720 as outstanding remuneration plus 5% interest p.a. as from follows
On EUR 840 from 1 April 2023 until the date of effective payment;
On EUR 840 from 1 May 2023 until the date of effective payment;
On EUR 840 from 1 June 2023 until the date of effective payment;
On EUR 840 from 1 July 2023 until the date of effective payment;
On EUR 840 from 1 August 2023 until the date of effective payment;
On EUR 840 from 1 September 2023 until the date of effective payment;
On EUR 840 from 1 October 2023 until the date of effective payment;
On EUR 840 from 1 November 2023 until the date of effective payment.
- EUR 14,280 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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REF. FPSD-12584
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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