Labour Disputes
Texto da decisão
REF FPSD-5964
Decision of the
Dispute Resolution Chamber
passed on 22 June 2022
regarding an employment-related dispute concerning the player
Heritier Nkonko
BY:
Angela Collins (Australia)
CLAIMANT:
Heritier Nkonko, Congo DR
Represented by Mr Linos Chalwe
RESPONDENT:
Indeni FC, Zambia
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REF FPSD-5964
I. Facts of the case
1.
On 1 October 2020, the Congolese player Heritier Nkonko (hereinafter the Claimant or the
Player) and the Zambian club Indeni FC concluded (hereinafter the Respondent or the Club)
concluded an Employment Agreement (hereinafter the Employment Agreement) valid as
from 1 October 2020 until and 1 October 2022.
2.
In accordance with Clause 5 of the Employment Agreement, the Claimant and the
Respondent (jointly referred to as the Parties) agreed, inter alia, upon the following
financial conditions:
“5.01 The players total remuneration shall be K13.844.20 Net commencing 1st October 2020
(a) A salary at the basic rate to ZMW 0.000.00 per month
(b) Housing Allowance @ 30% of ZMW 0.000.00 per month
(c) Medical Allowance @ 25% of ZMW 0.000.00 per month
(d) The league game win Allowance of ZMW 2.500.00
(e) Draw Allowance ( away game only) ZMW 1.000.00
(f) Training Allowance per week ZMW 250.00
5.02 GRATUITY
In the compilation of the salaries the rate of considered above market rates and all inclusive
no gratuities are payable to the payer at the end of the contact at player discretion, 20% of the
salary can be returned an a monthly basic and paid as gratuity pro- rata the months saved.
5.03 RELEASE CLAUSE
A release clause sum of ZMW 500.000.00 shall be paid to INDENI FC in an event that
the player moves to another club locally during the duration of the contact period and the
player shall be entitled to 10% of the amount.
5.04 FREE AGENT FEE ( SIGN ON FEE )
An amount of USD 8.000 shall be paid to the player as a free agent upon Agreement to the
terms of this employment contact.”
3.
In accordance with Clause 6 lit. f) of the Employment Agreement, the Parties stipulated
the following:
“Termination by the Employer – the Employer or Player may terminate the Players’ service by
giving not less than (1) month notice or pay one-month salary in lieu of notice.”
4.
On 1 July 2021, the Respondent terminated the Employment Agreement by sending the
Claimant a one-month notice termination.
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5.
On 12 April 2022, the Claimant put the Respondent in default, requesting the following:
“(…) a gratuity of 20% of the monthly remuneration earned during the actual period of the
agreement and payable at the end of the contract. Given that the monthly remuneration was
ZMW 13 844,20 and that the contract was terminated 10 months later (July 2021), the player
should have received ZMW 34 610,5 (3 461,05 x 10) for said period. This amount was never
paid.
Also, according to article 5.04 of this agreement, the player was entitled to a sign on fee of USD
8 000 which has never been paid.” (emphasis added)
6.
On 27 July 2021, the Claimant signed a new employment agreement (hereinafter the New
Employment Agreement) with the Congolese club AS V Club, valid as from 30 July 2021 until
30 July 2024.
7.
In accordance with the Article 5 of the New Employment Agreement, the Claimant was
entitled to a sign-on fee of USD 5,000 and monthly salary of USD 2,000.
8.
In accordance with the Transfer Matching System (TMS), the total value of the New
Employment Agreement amounted to USD 77,000.
II. Proceedings before FIFA
9.
On 6 May 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
10. The requests for relief of the Claimant were the following:
−
−
“ZMW 27 688,4 and USD 8 000 as outstanding remuneration + 5% interest as from
the relevant payment dates until the date of effective payment.
ZMW 247 582,56as compensation for the breach of contract without just cause +
5% interest as from the date of termination until the date of effective payment.”
11. The Claimant argued that the Respondent terminated the Employment Agreement
without just cause and, consequently, that he is entitled to outstanding remuneration as
well as compensation.
12. In support of his claim, the Claimant provided for the following break-down:
Outstanding remuneration
−
USD 8,000 for the sign-on fee;
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−
ZMW 27,688.4 as gratuity for the period from October 2020 to July 2021
(ZMW 2,768.84x 10 months).
Compensation
−
−
−
−
ZMW 193,818.8 (ZMW 13,844.2x 14 months) as salaries from August 2021 to
September 2022;
ZMW 38,763.76 as gratuity for the period from August 2021 to October 2021 ZMW
(2,768.84 x 14 months);
ZMW 15,000 as weekly training allowance for the period from August 2021 to
October 2021 (ZMW 250 x 60 weeks);
Total: ZMW 247,582.56
b. Position of the Respondent
13. Despite being invited to do so, the Respondent failed to reply to the claim.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
14. First of all, the Single Judge (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 6 May 2022 and submitted for decision on
22 June 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.
15. 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 2022 edition), the Single Judge
is competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a Congolese player and a Zambian club.
16. 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 (March 2022 edition),
and considering that the present claim was lodged on 6 May 2022, the March 2022 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
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b. Burden of proof
17. 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 TMS.
c. Merits of the dispute
18. Her 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
19. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that this is a claim of a player against a club concerning
a unilateral termination of an employment contract by the Respondent.
20. Furthermore, the Single Judge noted that the claim remained undisputed by the
Respondent.
21. In this context, the Single Judge firstly acknowledged that at the time of the termination,
the sell-on fee as well as the gratuity payments, corresponding to USD 8,000 and
ZMW 27,688.4, remained outstanding towards the Claimant.
22. In view of the foregoing and bearing in mind the basic legal principle of pact sunt servanda,
which in essence means that agreements must be respected by the parties in good faith,
the Respondent is held liable to pay the Claimant the outstanding amounts deriving from
the contract concluded between the parties, namely USD 8,000 and ZMW 27,688.4.
23. The Single Judge further noted that the Claimant alleged that the Respondent terminated
the Employment Agreement without just cause.
24. At this point, the Single Judge recalled the wording of Clause 6 lit. f) of the Employment
Agreement, according to which the Parties were allowed to unilaterally terminate the
contract by serving a one-month notice or by a payment of one-monthly salary. The
aforementioned clause stipulates the following: “Termination by the Employer – the
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Employer or Player may terminate the Players’ service by giving not less than (1) month notice
or pay one-month salary in lieu of notice.”
25. After a due analysis of the wording of the respective clause, and even though the prerequisites mentioned therein were complied with by the Respondent, the Single Judge
concluded that Clause 6 lit. f) of the Employment Agreement contradicts the principle of
contractual stability and, therefore, it is not valid.
26. In light of the above, the Single Judge concluded that the Respondent terminated the
contractual relationship without just cause as per 1 July 2021 and must bear the financial
consequences thereof.
ii. Consequences
27. Having stated the above, the members of the Single Judge turned her attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent.
28. The Single Judge reiterated that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the Player, are equivalent to USD 8,000 and
ZMW 27,688.4.
29. 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 above-mentioned amounts which were outstanding under the contract at the
moment of the termination.
30. In addition, taking into consideration the Claimant’s request as well as the constant
practice of the Single Judge in this regard, the latter decided to award the Claimant
interest at the rate of 5% p.a. on the outstanding amounts as follows:
-
On the amount of USD 8,000 as from 1 October 2020 until the day of the effective
payment.
On the amount of ZMW 27,688.4 as from 6 May 2022 until the day of the effective
payment.
31. 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
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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.
32. 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. In this regard, the Single
Judge pointed to its previous deliberations (par. II./24.), establishing that such
compensation clause was invalid.
33. 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.
34. 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 ZMW 247,582.56 serves as the basis for
the determination of the amount of compensation for breach of contract.
35. 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 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.
36. Indeed, the Player found employment with AS V Club. In accordance with the pertinent
employment contract, the Player was entitled to approximately USD 33,000 for the
pertinent overlapping period of the two contracts. Therefore, the Single Judge concluded
that the Player mitigated his damages in the total amount of USD 33,000, that is,
ZMW 746,942.
37. Subsequently, the concluded that the Player fully mitigated his damages and thus, no
compensation is due in the present matter.
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iii. Compliance with monetary decisions
38. 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, 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.
39. 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.
40. 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.
41. 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.
42. 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
43. 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.
44. 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.
45. 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, Heritier Nkonko, is partially accepted.
2.
The Respondent, Indeni FC, has to pay to the Claimant, the following amount(s):
- USD 8,000 as outstanding remuneration plus 5% interest p.a. as from 1 October 2021
until the date of effective payment;
- ZMW 27,688.4 as outstanding amount plus 5% interest p.a. as from 6 May 2022 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 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).
CONTACT INFORMATION
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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