Labour Disputes
Texto da decisão
REF FPSD-4656
Decision of the
Dispute Resolution Chamber
passed on 6 April 2022
regarding an employment-related dispute concerning the player Ovella
Ochieng
BY:
Tomislav Kasalo (Croatia)
CLAIMANT:
Ovella Ochieng, Kenya
Represented by Evert de Bruyn
RESPONDENT:
Marumo Gallants FC, South Africa
Represented by Peter Ramano
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I.
Facts of the case
1.
On 11 August 2021, the Kenyan player, Ovella Ochieng (hereinafter: the Claimant), and the
South African club, Marumo Gallants FC (hereinafter: the Respondent) signed an employment
contract valid as from 1 August 2021 for a period of two years.
2.
Pursuant to the schedule to the contract, the Respondent undertook to pay to the Claimant,
the following remuneration:
a salary of (South African Rand) ZAR 30,000 per month from 1 August 2021 to 30 June
2022;
a salary of ZAR 33,000 per month from 1 July 2022 to 31 June 2023 (indicated in the
contract as a 10% increase).
3.
According to the Claimant, he commenced training on 11 August 2021 and his work permit
was obtained by the Respondent on 18 August 2021 with an expiry date of 9 August 2024.
4.
The Claimant indicated that in March 2021, he concluded a mutual termination agreement
with his former club Vasalunds IF, from which the Respondent sought to obtain an
International Transfer Certificate (ITC), in order to register the Claimant for the 2021/2022
Premier Soccer League (“PSL”) season.
5.
During the month of September 2021, the Respondent informed the Claimant that it had
been unable to register the Claimant, as it was experiencing challenges with obtaining his
ITC, but that it still wanted the Claimant to remain with the team and that it will continue to
attempt to register the Claimant for the season. The Claimant therefore continued to train
with the Respondent’s team.
6.
By 15 October 2021, the Claimant was still not registered and could not feature in any fixtures
of the PSL, upon enquiry from the Claimant he was advised “that the new coach would have
to assess him, after which it would be determined whether the Respondent would proceed
to register the Claimant during the following registration window.”
7.
According to the Claimant, at this stage, he realised that the Respondent did not intend to
proceed with his registration, moreover the Respondent failed to pay any of his salaries, “with
the exception of a payment in the amount of R5 000,00 which the Respondent made to the
Claimant on 27 September 2021.”
8.
The Claimant mentioned that the Respondent stated that it was not obliged to pay him any
salaries as he was not a registered player, “however if the new coach assesses the Claimant,
and is satisfied that he could contribute to the team, then he would be registered in the next
registration period. Only at this time would the Respondent proceed to make payment of the
Claimant’s salary.”
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9.
According to the Claimant, the new coach, was appointed on 13 November 2021 and no
formal assessment of the Claimant was done.
10. On 21 December 2021, the Claimant terminated the employment contract with the
Respondent, due to its failure to register the Claimant and failure to make payment of the
Claimant’s outstanding remuneration.
11. On 10 January 2022, the Claimant concluded an employment contract with the Botswanan
club, Township Rollers Football Club, valid from 1 January until 31 December 2022, entitling
him to monthly salary of Botswana Pula (BWP) 20,000 (approximately ZAR 25,765.25).
II. Proceedings before FIFA
12. On 28 December 2021, 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
13. According to the Claimant, he had just cause to terminate the employment contract due to
the following circumstances:
“The Respondent failed to the register the Claimant with the league, thereby preventing
the Claimant from participating in competitive football;
The Respondent deceived the Claimant about its intention to register the Claimant.
Despite concluding the employment contract and training with the Respondent for a
period of 4 (four) months, the Respondent failed to register the Claimant, either
purposefully or due to its own negligence;
The Respondent failed to make payment to the Claimant of his salary for 4 (four)
months, making only one meagre contribution to the Claimant when he was forced to
beg for financial assistance; and
The conduct of the Respondent can be construed as nothing other than abusive conduct
aimed at forcing the Claimant to terminate the employment contract with”
14. The requests for relief of the Claimant, were the following:
(a) payment of his outstanding salaries in the total amount of ZAR 115,000 corresponding
to his salaries for August (ZAR 30,000), September (ZAR 25,000), October (ZAR 30,000)
and November 2021 (ZAR 30,000) together with interest; and
(b) compensation for breach of contract in the amount of ZAR 546,000, together with
interest; and
(c) additional compensation pursuant equal to 6 (months) salary due to egregious
circumstances justifying an increase in additional compensation, in the sum of ZAR
180,000,00, together with interest.
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b. Position of the Respondent
15. In its reply to the claim, the Respondent denied that it failed to register the Claimant with the
PSL, it indicated that the registration could not take place without an ITC.
16. In this context, the Respondent mentioned that “despite numerous attempts and /or efforts
such certificate could not be obtained for reasons amongst others, delay by the Swedish
Football Association reverting to the Respondent after submission of all the relevant and/or
amended documents information required for the issuing of the certificate.”
17. The Respondent indicated that after the conclusion of the contract with the Claimant, it
submitted the necessary documents and information on the FIFA TMS portal, “however a
query about the dates was raised which query was immediately attended to by the
Respondent.” Thereafter, the Respondent explained that it failed to get feedback from the
Swedish Football Association despite numerous follow ups until the registration window
closed on the 31 August 2021.
18. The Respondent further mentioned that it did not force the Claimant to remain with the club,
the Claimant volunteered to continue training with after the 31 August 2021 “despite the
Respondent informing him that he would not be paid as per the contract signed because he
is not rendering the club any service. “
19. Moreover, the Respondent mentioned that a new coach would make no difference on the
status and/or position of the Claimant – “Even if the new coach wanted to play the Claimant
that would not be possible without the Claimant being registered”
20. The Respondent alleged that after 31 August 2021, “the FIFA Portal was faulty and/or not
working and that can be confirmed by FIFA itself. The fault was on going for weeks and at
the time the problem was attended to if not mistaken the Claimant was already gone and/or
terminated the contract. “
21. The Respondent agreed that the Claimant did not receive his full salary, but that he received
a monthly allowance of ZAR 5,000 for the months of August, September, October and
November 2021, in addition to free accommodation. Furthermore, the Claimant “was very
well aware and/or informed that he is not going to get his full salary because he was not
playing and/or rendering professional services to the Respondent. He was explained of the
options to go play somewhere and/or remain until the next registration period which he opted
to remain with the Respondent.”
22. The requests for relief of the Respondent, were that the claim be dismissed with cost, it
maintained that:
the Claimant is not entitled to the amounts as claimed and that sporting sanctions are
not warranted
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the Claimant did not render any services to the Respondent to entitle him to a salary
there was never any breach of a contract herein. He is further not entitled to any
additional compensation as claimed.
c. Additional Comments Claimant
23. On 4 February 2022, the FIFA administration requested the Claimant to comment on the
payments and monthly allowances, allegedly remitted by the Respondent.
24. In this context, the Claimant denied that the Respondent paid him any monthly allowances
as alleged - The only payment the Claimant deems to have ever received was a payment of
ZAR 5,000, which was paid to the Claimant by the Respondent on 27 September 2021.
25. Furthermore, the Claimant indicated that the facts alleged by the Respondent regarding the
monthly allowances “are not supported by any proof”.
26. In conclusion, the Claimant requested that the Respondent’s defence be rejected.
d. ITC Procedure
27. According to the information available on TMS:
On 19 August 2021, the Respondent entered a transfer instruction in TMS in order to
engage the player permanently, the player’s former club is Vasalunds IF, Sweden;
On 31 August 2021, the South African Football Association (SAFA) requested the ITC
from Svenska Fotbollförbundet (SVFF) ;
On 31 August 2021, SVFF requested the transfer cancellation due to “wrong reason
selected for last contract end date - The club and player agreed an early termination of
the contract, it did not expire.”
On 1 September 2021, the SVFF requested another transfer cancellation due to incorrect
last contract end date.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
28. First of all, the Single Judge of the Dispute Resolution Chamber (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 28 December 2021
and submitted for decision on 6 April 2022. Taking into account the wording of art. 34 of
the October 2021 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.
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29. 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 Kenyan player and a South African club.
30. 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 2022 edition), and
considering that the present claim was lodged on 28 December 2021, the August 2021
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
31. 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
Transfer Matching System (TMS).
c. Merits of the dispute
32. 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
33. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the parties strongly dispute whether or not the
Respondent is responsible to comply with the contractual obligations detailed in the
employment contract concluded between the parties, in light of the Respondent’s failure to
properly register the Claimant with the South African Football Association.
34. In this context, the Single Judge acknowledged that his task was to determine whether the
reasons brought forward by the Respondent exempt it from its contractual obligations.
35. The Single Judge noted that the Respondent in its reply indicated that it could not obtain the
ITC of the Claimant, due to the non-release thereof by his prior club and/or association.
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36. Bearing this in mind, the Single Judge first of all reminded the parties that, in line with the
contents of art. 18 par. 4 of the Regulations, as well as the jurisprudence of FIFA, the validity
of an employment contract cannot be made conditional upon the execution of
(administrative) formalities, such as, but not limited to, the registration procedure in
connection with the international transfer of a player, which are of the sole responsibility of
a club and upon which a player has no influence. As the club is supposedly interested in
acquiring the rights of the player and in benefiting from his services, it is also expected to act
accordingly and execute the administrative formalities in view of obtaining, for instance, the
player’s ITC and his subsequent registration with the engaging FA. Consequently, the
registration or not of the contract is irrelevant in determining if the contract was a valid and
binding document.
37. Based on the foregoing, the Single Judge rejected the Respondent’s argument that it would
not be obliged to pay the salaries of the player due to the fact that he did not render any
services to the Claimant as the registration of the player could not be timeously affected with
the South African Football Association.
38. Moreover, the Single Judge recalled that it remains undisputed that the Claimant and
Respondent had effectively concluded, on 11 August 2021, a valid and binding employment
contract for the period between 1 August 2021 and 30 June 2023, as such, the Single Judge
deemed that it was the responsibility of the Respondent to pay the salaries to the Claimant
for the aforementioned period.
39. The Single Judge mentioned that the Respondent was bound to a valid employment contract
with the Claimant, and that it shall be considered that it had breached said contract, by not
properly registering the Claimant and by failing to pay his monthly remuneration.
40. On account of the abovementioned circumstances, the Single Judge concluded that the
Claimant, on 21 December 2021, had unilaterally terminated the contract with just cause and
that the Respondent should be held liable for the consequences thereof.
ii. Consequences
41. Having stated the above, the Single Judge turned his attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
42. The Single Judge observed that the outstanding remuneration at the time of termination,
corresponds to the monthly salaries in the period between August and November 2021 in
the total amount of ZAR 115,000.
43. 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 total amount
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of ZAR 115,000, which was outstanding under the contract at the moment of the
termination, i.e. 21 December 2021, broken down as follows:
ZAR 30,000 as from 31 August 2021;
ZAR 25,000 as from 31 September 2021;
ZAR 30,000 as from 31 October 2021;
ZAR 30,000 as from 30 November 2021.
44. In addition, taking into consideration the Claimant’s request, 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.
45. 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.
46. 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.
47. As a consequence, the members of 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.
48. 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 ZAR 606,000 (i.e. 7 monthly salaries of ZAR 30,000 , plus 12
monthly salaries of ZAR 33,000 due in the period between December 2021 and June 2023)
serves as the basis for the determination of the amount of compensation for breach of
contract.
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49. 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
Dispute Resolution Chamber 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.
50. Indeed, the Claimant found employment with the Township Rollers Football Club valid from
1 January until 31 December 2022. In accordance with the pertinent employment contract,
the Claimant was entitled to approximately Botswana Pula (BWP) 20,000 (approximately ZAR
25,765.25) per month. Therefore, the Single Judge concluded that the Claimant mitigated
his damages with an amount of BWP 240,000 [monthly salary BWP 20,000 X12]
(approximately ZAR 309,183), hence the mitigated compensation amounts to ZAR 296,817.
51. Subsequently, the Single Judge referred to art. 17 par. 1 lit. ii) of the Regulations, according
to which a player is entitled to an amount corresponding to three monthly salaries as
additional compensation should the termination of the employment contract at stake be due
to overdue payables. In the case at hand, the Single Judge confirmed that the contract
termination took place due to said reason i.e. overdue payables by the club, and therefore
decided that the player shall receive additional compensation.
52. In this respect, the Single Judge decided to award the amount of additional compensation of
ZAR 132,000, i.e. four monthly salaries of ZAR 33,00 each.
53. Consequently, on account of all of the above-mentioned considerations and the specificities
of the case at hand, the Single Judge decided that the Respondent must pay the amount of
ZAR 428,817 to the player (i.e., ZAR 606,000 minus ZAR 309,183 plus ZAR 132,000), which
was to be considered a reasonable and justified amount of compensation for breach of
contract in the present matter.
54. Lastly, taking the Single Judge decided to award the Claimant interest on said compensation
at the rate of 5% p.a. as of 21 December 2021 until the date of effective payment.
iii. Compliance with monetary decisions
55. 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 his 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.
56. 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
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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.
57. 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.
58. 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.
59. 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
60. 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.
61. 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.
62. 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, Ovella Ochieng, is partially accepted.
2.
The Respondent, Marumo Gallants FC, has to pay to the Claimant, the following amount(s):
(a) ZAR 115,000 as outstanding remuneration plus 5% interest p.a.as from the respective
due dates until the date of effective payment as follows:
-
on the amount of ZAR 30,000 as from 1 September 2021;
on the amount of ZAR 25,000 as from 1 October 2021;
on the amount of ZAR 30,000 as from 1 November2021;
on the amount of ZAR 30,000 as from 1 December2021.
(b) ZAR 428,817 as compensation for breach of contract without just cause plus 5% interest
p.a. as from 21 December 2021 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 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:
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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