Labour Disputes
Texto da decisão
REF FPSD-7552
Decision of the
Dispute Resolution Chamber
passed on 22 November 2022
regarding an employment-related dispute concerning the player
Emmanuel Onyancha Obiero
BY:
Mr Jon Newman (USA)
CLAIMANT:
Emmanuel Onyancha Obiero, Kenya
RESPONDENT:
SC Villa, Uganda
Page 2
REF FPSD-7552
I. Facts of the case
1.
On 4 July 2022, the Kenyan player Emmanuel Onyancha Obiero (hereinafter the Claimant
or the player) and the Ugandan club SC Villa (hereinafter the Respondent or the club)
concluded an employment agreement (hereinafter the Employment Agreement), valid as
from 4 July 2022 until 4 July 2024.
2.
In accordance with the Transfer Matching System (TMS), the Claimant was registered with
the Respondent.
3.
In Clause 1 lit. a) of the Employment Agreement, the Claimant and the Respondent (jointly
referred to as the parties) agreed upon a total payment of UGX (Uganda
Shilling) 19,200,000, payable in 24 equal monthly instalments of UGX 800,000 “paid by
30th day of each month”.
4.
Allegedly on 29 August 2022, the Respondent verbally terminated the Employment
Agreement. The Claimant argued that the Respondent failed to provide for any
termination notice.
5.
On the same day, the Claimant sent the following letter to the Respondent:
“I hereby put your club into notice for the above mention reference.
since you have decided to terminate my contract signed between us on 04.07.2022 to
04.07.20224 in a very unprofessional way whereby you have refused to give me a written
document of dismissal from the club and failure to grant me a copy of my contract,! hereby
give you a notice of 7 to 10 days according to fifa rules for the repayment of my two months
salary arrears and a compensation of 1 year of the remaining months in my contract.”
6.
Furthermore, also on 29 August 2022, the Claimant requested the copy of the
Employment Agreement from the Federation of Uganda Football Associations (FUFA).
7.
On 5 September 2022, the Claimant sent a letter to FIFA, requesting “i,a release later from
the team. ii,compensation and damages caused. iii,request fufa to provide you with the copy
of the contract between me and the club pertaining this case for the confirmation of this case
since they refused to grant it to me.”
8.
On 6 September 2022, the Claimant sent a letter to FIFA, requesting “copy of contract
uploaded from the tms to fifa for a smooth,efficient and transparent way in the determination
of the case.”
9.
The Claimant was redirected by the FIFA general secretariat to obtain his contract via TMS
Helpdesk.
10. The Claimant informed the FIFA general secretariat that he remained unemployed.
Page 3
REF FPSD-7552
II. Proceedings before FIFA
11. On 21 September 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
12. The requests for relief of the Claimant were the following:
“19,200,000 ugandan shillings for a two-year employment contract which runs from
04.07.2022 to 04.07.2024 and it includes my salary arrears of the two months July and
August.” (emphasis added)
13. The Claimant argued that the Respondent terminated the relationship without just cause,
although validly signing the Employment Agreement, failed to pay any amounts as per
the contract.
b. Position of the Respondent
14. Despite being invited to do so, the Respondent failed to reply to the claim within the
stipulated deadline.
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 (hereinafter also referred
to as the 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
21 September 2022 and submitted for decision on 22 November 2022. Taking into
account the wording of art. 34 of the October 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.
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 (October 2022 edition), he is competent
to deal with the matter at stake, which concerns an employment-related dispute with an
international dimension between a Kenyan player and an Ugandan club.
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 (October 2022
Page 4
REF FPSD-7552
edition), and considering that the present claim was lodged on 9 September 2022, the July
2022 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 he may
consider evidence not filed by the parties, including without limitation the evidence
generated by or within the 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
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
6.
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 termination of an employment contract.
7.
In this respect, the Single Judge recalled that the contract was allegedly terminated on
29 August 2022 by the Respondent, without any prior warning.
8.
In view of the foregoing, the Single Judge referred to art. 13 par. 5 of the Procedural Rules,
according to which a party that asserts a fact has the burden of proving it, and went on
to analyse the documentation provided by the parties in support of their allegations.
9.
In this respect, the Single Judge noted that – after having been provided with the claim of
the Claimant – the Respondent failed to present its response. By not presenting its
position to the claim, the Single Judge was of the opinion that the Respondent renounced
its right of defence and, thus, accepted the allegations of the Claimant.
10. Consequently, the Single Judge recalled his long-standing jurisprudence, according to
which only a breach or misconduct which is of a certain severity justifies the termination
of a contract without prior warning. In other words, only when there are objective criteria
Page 5
REF FPSD-7552
which do not reasonably permit to expect the continuation of the employment
relationship between the parties, a contract may be terminated prematurely. Hence, if
there are more lenient measures which can be taken in order for an employer to assure
the employee’s fulfilment of his contractual duties, such measures must be taken before
terminating an employment contract. A premature termination of an employment
contract can only be an ultima ratio.
11. Based on the evidence on file, the Single Judge concluded that the Employment
Agreement was indeed terminated without any prior warning and hence without just
cause on 29 August 2022, i.e. two months after the beginning of the employment
relationship.
12. On account of the aforementioned, the Single Judge decided that the club had unlawfully
terminated the employment contract with the player and should be held liable for such
breach.
ii. Consequences
13. The Single Judge observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the Claimant, are equivalent to two salaries
under the contract, amounting to UGX 1,600,000.
14. 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. UGX 1,600,000 (2 times UGX 800,000).
15. 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.
16. In application of the relevant provision, the Single Judge held that he first of all had to
clarify 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.
Page 6
REF FPSD-7552
17. 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.
18. As a consequence, the Single Judge determined that the amount of compensation payable
by the Claimant to the Respondent 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.
19. 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 until its term. Consequently, the Single Judge concluded that the amount of
UGX 17,600,000 (i.e. 22 times UGX 800,000) serves as the basis for the determination of
the amount of compensation for breach of contract.
20. In continuation, the Single Judge verified 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. In this respect, the Single Judge noted that the player remained
unemployed since the unilateral termination of the contract.
21. The Single Judge referred to art. 17 par. 1 lit. ii) 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.
22. In this respect, the Single Judge decided to award the player compensation for breach of
contract in the amount of UGX 17,600,000, i.e. 22 times UGX 800,000, as the residual value
of the contract.
23. Lastly, taking into consideration that the player’s request, the Single Judge – in line with
the principle ne ultra petita - concluded not to award any interest.
iii. Compliance with monetary decisions
24. 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.
Page 7
REF FPSD-7552
25. 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.
26. 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.
27. 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.
28. 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
29. 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.
30. 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.
31. Lastly, the Single Judge concluded his deliberations by rejecting any other requests for
relief made by any of the parties.
Page 8
REF FPSD-7552
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Emmanuel Onyancha Obiero, is accepted.
2.
The Respondent, SC Villa, has to pay to the Claimant, the following amount(s):
-
UGX 1,600,000 outstanding remuneration;
-
UGX 17,600,000 as compensation for breach of contract without just cause.
3.
Full payment (including all applicable interest) shall be made to the bank account
indicated in the enclosed Bank Account Registration Form.
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
Page 9
REF FPSD-7552
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
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
Page 10