Labour Disputes
Texto da decisão
REF FPSD-3568
Decision of the Single Judge of
the DRC
passed on 9 November 2021
regarding an employment-related dispute concerning the player Mwizero
Don Parfait
BY:
Mr Philippe Diallo (France), Single Judge of the DRC
CLAIMANT:
Mwizero Don Parfait, Burundi
Represented by Felix Majani
RESPONDENT:
Association Sportive Muhanga, Rwanda
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REF FPSD-3568
I.
Facts of the case
1.
On 2 November 2020, the player from Burundi, Mwizero Don Parfait (hereinafter: the
Claimant or player), and the club from Rwanda, Association Sportive Muhanga (hereinafter:
the Respondent or club) signed an employment contract (hereinafter: contract) valid as from
as from the date of signature until the end of the season 2021/2022.
2.
According to information contained in the Transfer Matching System (TMS), the sporting
season 2021/2022 in Rwanda ends on 18 June 2022.
3.
According to the contract, the Respondent undertook to pay the Claimant a monthly salary
of Rwandan Franc (RWF) 200,000 net (approx. EUR 170) and a signing fee in the amount of
RWF 1,500,000, payable as follows:
- RWF 800,000 upon signature of the contract;
- RWF 700,000 in December 2020.
4.
In its article 6, the contract establishes inter alia: “Le présent contrat peut etre résilié avant
son terme par accord de deux parties. Il peut etre résilié unilatéralement par l’Employeur par
écrit sans préavis ni indemnité si l’employé commet une faute lourde ou n’honore pas ses
taches“.
Free translation: This contract may be terminated before its term by agreement of both parties.
It may be terminated unilaterally by the Employer in writing without notice or compensation if
the employee commits gross misconduct or fails to perform his duties.
5.
On 6 August 2021, the Claimant put the Respondent in default and requested payment of
his salaries corresponding to 4 months (January, February, March and July 2021) within 15
days.
6.
On 4 September 2021, the player terminated the contract with the club due to the club’s
non-fulfillment of its financial obligations (note: letter is on file).
7.
According to information contained in the Transfer Matching System (TMS), the player
remained unemployed as of 20 August 2021.
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II. Proceedings before FIFA
8.
On 6 September 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
9.
The Claimant requested payment of the following monies.
RWF 1,000,000 as outstanding remuneration plus 5% interest p.a. as of the due
dates.
RWF 2,400,000 as compensation for breach of contract plus 5% interest p.a. as of
5 September 2021.
10. In his claim, the player held that the club failed to remit the salaries as of January 2021 for
five months (January, February, March, July and August 2021).
11. On account of the above, taking into account the default notice, the player held having had
just cause to terminate the contract on 4 September 2021.
12. Moreover, the player maintained that he is entitled to compensation for breach of contract
corresponding to the residual value (RWF 1,800,000; September 2021 until May 2022) plus
additional compensation of 3 months (RWF 600,000).
b. Position of the Respondent
13. The Respondent rejected the claim and held that the player was prosecuted in Rwanda for
the use of narcotic drugs, which gave the club the possibility to terminate the contract in
accordance with art. 6 of the contract.
14. Furthermore, the Respondent maintained that it did not breach the contract as the “contract
is still valid”.
III. Considerations of the Single Judge of the DRC
a. Competence and applicable legal framework
15. 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 6 September 2021
and submitted for decision on 9 November 2021. 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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16. 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 (August 2021 edition),
he is competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between an player from Burundi and a club from
Rwanda.
17. 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 (August 2021 edition), and
considering that the present claim was lodged on 6 September 2021, the August 2021 in
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
18. 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
19. 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 it
considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
20. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the parties dispute 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.
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21. 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.
22. 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).
23. The Single Judge noted that the Claimant claims not having received his remuneration
corresponding to 5 monthly salaries. Furthermore, the Single Judge noted that the Claimant
has provided written evidence of having put the Respondent in default on 6 August 2021,
i.e. at least 15 days before unilaterally terminating the contract on 4 September 2021.
24. 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. The club did not submit any evidence that the outstanding amounts were
remitted.
25. Furthermore, the Single Judge noted the argumentation of the Respondent which rejected
the claim, referred to the contractual possibility to unilaterally terminate the contract due to
the player’s alleged conviction without submitting any documentation in support of its
argument. The Single Judge further noted that the club held that the contract was still valid.
Therefore, the Single Judge had to reject the club’s arguments.
26. 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
27. Having stated the above, the members of the Single Judge turned his attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent.
28. 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 5 salaries under
the contract, amounting to RWF 1,000,000.
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 amounts
which were outstanding under the contract at the moment of the termination, i.e. RWF
1,000,000 (5 times RWF 200,000).
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30. 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.
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 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 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.
33. 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.
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 RWF 1,800,000 (i.e. September 2021 until May 2022, 9x RWF
200,000) 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
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.
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36. In this respect, the Single Judge noted that the player remained unemployed since the
unilateral termination of the contract.
37. 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.
38. In this respect, the Single Judge decided to award the player compensation for breach of
contract in the amount of RWF 1,800,000, i.e. 9 times RWF 200,000), as the residual value
of the contract.
39. Lastly, taking into consideration the player’s request as well as the constant practice of the
Single Judge in this regard, the latter decided to award the player interest on said
compensation at the rate of 5% p.a. as of the date of claim until the date of effective
payment.
iii. Compliance with monetary decisions
40. 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.
41. 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.
42. 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.
43. 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.
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44. 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
45. The Chamber 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.
46. Likewise and for the sake of completeness, the Chamber recalled the contents of art. 25 par.
8 of the Procedural Rules, and decided that no procedural compensation shall be awarded in
these proceedings.
47. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
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IV. Decision of the Single Judge of the DRC
1.
The claim of the Claimant, Mwizero Don Parfait, is partially accepted.
2.
The Respondent, Association Sportive Muhanga, has to pay to the Claimant, the following
amount(s):
- Rwandan France (RWF) 200,000 as outstanding remuneration plus 5% interest p.a. as from
1 February 2021 until the date of effective payment;
- RWF 200,000 as outstanding remuneration plus 5% interest p.a. as from 1 March 2021
until the date of effective payment;
- RWF 200,000 as outstanding remuneration plus 5% interest p.a. as from 1 April 2021 until
the date of effective payment;
- RWF 200,000 as outstanding remuneration plus 5% interest p.a. as from 1 August 2021
until the date of effective payment;
- RWF 200,000 as outstanding remuneration plus 5% interest p.a. as from 1 September 2021
until the date of effective payment;
- RWF 1,800,0000 as compensation for breach of contract plus 5% interest p.a. as from 06
September 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 (August 2021
edition), 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).
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