Labour Disputes
Texto da decisão
REF. FPSD-8716
Decision of the
Dispute Resolution Chamber
passed on 8 June 2023
regarding an employment-related dispute concerning
the player John Otenyal Khames Roba
BY:
Clifford J. Hendel, (USA & France), Chairperson
Alexandra Gómez Bruinewoud, (the Netherlands), member
Khalid Awad Al-Thebity, (Saudi Arabia), member
CLAIMANT / COUNTER-RESPONDENT:
John Otenyal Khames Roba, Sudan
Represented by Islam Hisham
RESPONDENT / COUNTER-CLAIMANT:
Kiyovu Sports Association, Rwanda
pg. 2
REF. FPSD-8716
I. Facts of the case
1.
On 4 June 2022, the Sudanese player John Otenyal Khames Roba (hereinafter the player)
received an invitation letter from the Rwandan club Uthai Kiyovu Sports Association
(hereinafter the club).
2.
On 10 June 2022, the player and the club (jointly referred to as the parties) concluded an
employment agreement (hereinafter the Employment Agreement) valid until 9 June 2024,
i.e. for two seasons.
3.
In Clause 5 of the Employment Agreement, the parties agreed upon a payment of
RWF 27,000,000, payable as follows:
−
−
−
−
−
−
−
RWF 15,000,000 net “before the pre-season “as Signing fee”;
RWF 6,000,000 net, payable as ten monthly payments of RWF 600,000 net during
the first season;
RWF 6,000,000 net, payable as ten monthly payments of RWF 600,000 net during
the first season;
RWF 30,000 net as a winning bonus;
The club will be in charge of taking care of the accommodation for the player during
the time of this contract.
Transport during working hours is provided by the club through the team's bus for
every player.
“The player gets one ticket per season to travel home and back.”
4.
Allegedly, during the month of June 2022, the player attempted “to connect with the Club’s
president numerous times by phone in order to ask him to pay the signing fee as per the Contract
stated, send visa and work permit together with flight ticket and in formation of the
accommodation to attend Rwanda for participating with the team in the pre-season and
practice his fundamental right as a footballer, but the President did not respond nor allow him
practice his right.”
5.
There is evidence on file provided by the club that the player was provided with flight tickets
from Sudan to Rwanda (via Kenya). The player was supposed to arrive on 8 June 2022 to
Rwanda and return back to Sudan on 14 June 2022.
6.
Allegedly, as of 22 June 2022, the player wished to be released. In this respect, a various
WhatsApp conversation was provided by the club.
7.
On 26 July 2022, the pre-season was allegedly held without the player (as well as without a
payment of the sign-on fee and sending entry visa, work permit, flight tickets or information
regarding accommodation).
pg. 3
REF. FPSD-8716
8.
On 2 August 2022, the player (through intermediaries, Messrs “Nori Habib Sudan” and
“Moayassar Fedil”) requested to be released. In this respect, a WhatsApp conversation is
on file, where the intermediaries request release letter of two players, whereas the names
of the players cannot be identified with certainty.
9.
On 2 August 2022, the club send the following letter to the player, releasing the latter from
the employment relationship:
“I, MVUKIYEHE Junvenal, certify that Mr. John OTENYAL KHAMES ROBA his free to leave the
Club, and KIYOVU SPORTS is happy to release him and wish him all the best in his endeavour.
We are giving him this recommendation, and he can use it whenever it is required”.
10. It appears that the release letter was sent via the WhatsApp as mentioned.
11. On 4 August 2022, the player signed a new employment agreement (hereinafter the New
Employment Agreement) with the Sudanese club Al Hilal.
12. Based on the evidence provided by the player, the new employment agreement is effective
from 4 August 2022 until 3 August 2027 with a total value of 18,000,000 Sudanese pounds.
13. In this respect, the Claimant further added that “due to the ongoing civil war in Sudan, the
Sudan Football Federation has frozen all football-related activities indefinitely. As a result, the
player's employment contract has been suspended until further notice, and any income arising
from this contract has ceased.”
14. On 20 October 2022, the player sent a default notice to the club, requesting the amount of
RWF 16,040,000, corresponding to the respective sign-on fee and the following salaries:
part of June, July in full, and part of August 2022. The player granted the club 10 days to
make the respective payment, to no avail.
II. Proceedings before FIFA
15. On 3 January 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 player / claim
16. The requests for relief of the Claimant were the following:
“1) To accept this claim against the Respondent.
2) To consider the Respondent liable for early termination of the contract that was made
unilateral and
without just cause during the protected period.
pg. 4
REF. FPSD-8716
3) To condemn the Respondent to pay the Claimant the outstanding payment under article
12bis in the
amount of RWF (16,040,000-/) “sixteen million and forty thousand RWF” shall be
divided as
follows:
a) Signing fee = an amount of RWF (15,000,000-/) “fifteen million RWF” plus 5%
interest calculating as from 10 June 2022.
b) Part of June 2022’s salary = an amount of RWF (400,000-/) “four hundred
thousand RWF” plus 5% interest calculating as from 10 June 2022.
c) July 2022 in full = an amount of RWF (600,000-/) “six hundred thousand RWF” plus
5% interest calculating as from 01 July 2022.
d) Part of August 2022’s salary = an amount of RWF (40,000-/) “forty thousand RWF”
plus 5% interest calculating as from 01 August 2022
4) To condemn the Respondent to pay the Claimant compensation for breach of contract
under article 17 of FIFA-RSTP in amount of RWF (10,990,000) “ten million, nine hundred
and minty thousand RWF” NET plus 5% interest calculating as from 02 August 2022.
5) To condemn the Respondent to pay the claimant an additional head of compensation
under the specificity of sport as provided for under FIFA-RSTP in the amount of RWF
(3,600,000) “three million, six hundred and thirty thousand RWF” plus 5% interest
calculating as from 02 August 2022.
6) To condemn the Respondent to pay interests at a rate of five percent (5%) per annum
over entire amounts requested from the due date of each payment until the date of the
effective payment.
7) To ban the Respondent from registering any new players, either nationally or
internationally, for two registration periods under article 17, paragraph 4 of the FIFA RSTP;
AND
8) To impose the Respondent whatever sanctions this honorable Chamber deems fit in
accordance with article 12 bis of the FIFA RSTP.
9) To fix a sum of USD (5,000-/) “five thousand dollars”, to be paid by the Respondent
to the Claimant, to help the payment of its legal fees and costs.
10) As a consequence of the above, to condemn the Respondent to pay all expenses and
costs of the present proceedings, if any.”
17. The player argued that the club terminated the contract without just cause as it failed to
make a payment of a sign on fee, various salaries, failed to register the player with the
team, as well as failed to send the entry visa, work permit, flight tickets and
accommodation.
b. Position of the club / counterclaim
18. In its reply, the club submitted a counterclaim against the player with the following
request for relief:
“the club sent the release letter after the player camp promised to pay back the expenses
pg. 5
REF. FPSD-8716
the player signed for another club less than 30 days after terminating the contract with
KIYOVU SPORTS CLUB
The player terminated the contract 12 days before reaching the day of agreement in the
contract
We demand the members of the chamber to give a reason for the request of the club and
force the player to refund all expenses spent on him. As calculated as follow:
Air ticket: $ 1522.660
Accommodations: $700”
19. The club argued that there are no outstanding payments in the matter at hand as the since
the player terminated the contract on 22 June 2022, i.e. 12 days after signing of the
contract, when he insisted to be released and before the respective amounts became due.
20. The club pointed out that the player signed the New Employment Agreement.
21. In view of the above, the club requested to be reimbursed the expenses spent on the player
(no counterclaim in stricto sensu).
c. Position of the player / reply to the counterclaim
22. The requests for In his reply to the counterclaim, the player requested to:
”1) To reject the Respondent’s counterclaim from the formalities and the substantive aspect.
2) To accept all our requests that mentioned in our memorandum dated 06 January 2023.”
23. The player argued that the counterclaim is inadmissible as the club firstly submitted an
incomplete counterclaim and, consequently, not within the deadline for response. What is
more, the player argued that that the counterclaim was unsigned.
24. On the substance, the player insisted that the contract was terminated by the club by the
letter of 2 August 2022. In this respect, the player disputed that messages by Messrs “Nori
Habib Sudan” and “Moayassar Fedil” are linked to him and, consequently, shall be
disregarded.
25. The player further argued that the club failed to prove that any negotiation between him
and the new club during the contract period and prior to the date of termination.
26. As to the requested reimbursement, the player pointed out that (i) the evidence provided
is linked to another player; (ii) the other costs were to be covered by the club as per the
contract.
pg. 6
REF. FPSD-8716
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
27. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or
DRC) analysed whether it was competent to deal with the case at hand. In this respect, it
took note that the present matter was presented to FIFA on 3 January 2023 and submitted
for decision on 8 June 2023. 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.
28. Subsequently, the members of the Chamber 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 Dispute
Resolution Chamber is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a player from Sudan
and a club from Rwanda.
29. At this point, the Chamber noted that the player disputed the admissibility of the
counterclaim. In this respect, the DRC confirmed that the club provided for its reply /
counterclaim within the respective time limit and, considering the request for relief of the
club, the FIFA general secretariat duly requested completion of the claim lodged by the
club. The Chamber concluded that this is a standard practice and consequently confirmed
that the counterclaim of the club is admissible.
30. Subsequently, the Chamber analysed which regulations should be applicable as to the
substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Players (March 2023 edition), and
considering that the present claim was lodged on 03 January 2023, the October 2022
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
31. The Chamber 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 Chamber 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).
pg. 7
REF. FPSD-8716
c. Merits of the dispute
32. Its competence and the applicable regulations having been established, the Chamber
entered into the merits of the dispute. In this respect, the Chamber started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Chamber emphasised that in the following
considerations it 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
33. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of that this is a claim of a player against a club concerning a
termination of a contract taking place on 2 August 2022.
34. The DRC noted that whereas the player argued that the club terminated the contract
without just cause, the club highlighted that the player wished to be released and provided
for WhatsApp messages that were allegedly linked to the player.
35. In this respect, the Chamber looked into the evidence provided by the club and pointed out
that the said messages requesting the release of the player cannot – with certainty – be
linked to the player.
36. On the other hand, the DRC equally observed that the player provided no evidence that he
inquired about the pre-season. In this respect, there was no request regarding trainings,
preparations, beginning of the season, travel arrangements, etc.
37. The Chamber then recalled that it was undisputed between the parties that the player
never rendered services to the club nor that he requested it. The DRC also wished to
highlight that immediately after receiving the release letter on 2 August 2022, the player
signed a new contract with a new club on 4 August 2022.
38. In continuation, the Chamber remarked that the first correspondence disputing the club’s
action was only sent by the player on 20 October 2022.
39. Taking into account all the above and the chronology of the case, the Chamber concluded
that both parties lost interest in execution of the employment contract and that the date
of the issuance of the release letter shall be marked as a point of no return. Consequently,
given the loss of interest, the DRC decided that there is no entitlement to any potential
compensation in the present matter.
40. For the sake of completion, the DRC wished to clarify that given circumstances of this
matter (player’s absence and not rendering of his services), the non-payment of the salaries
pg. 8
REF. FPSD-8716
cannot be considered a persistent and material non-fulfilment of the club’s contractual
obligations.
41. In this context, the Chamber decided to partially accept the claim of the player and grant
him the following outstanding amounts: sign-on fee (RWF 15,000,000) and the salaries of
June (RWF 400,000) and July (RWF 600,000).
42. At the same time, the Chamber rejected the counterclaim of the club.
ii. Consequences
43. The Chamber observed that the financial obligations deemed as outstanding in the present
case correspond to RWF 16,000,000 net.
44. 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 said amount
claimed as outstanding under the contract.
45. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award the Claimant interest at the rate
of 5% p.a. as follows:
−
RWF 400,000 net, plus 5% interest p.a. as from 1 July 2022 until the date of the
effective payment;
−
RWF 600,000 net, plus 5% interest p.a. as from 1 August 2022 until the date of the
effective payment;
−
RWF 15,000,000 net, plus 5% interest p.a. as from 2 August 2022 until the date of
effective payment.
iii. Compliance with monetary decisions
46. Finally, taking into account the applicable Regulations, the Chamber 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.
47. In this regard, the DRC 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.
pg. 9
REF. FPSD-8716
48. Therefore, bearing in mind the above, the DRC 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.
49. The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the player in the Bank Account Registration Form, which is attached
to the present decision.
50. The DRC 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
51. 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.
52. 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.
53. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 10
REF. FPSD-8716
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant / Counter-Respondent, John Otenyal Khames Roba, is partially
accepted.
2.
The Respondent / Counter-Claimant, Kiyovu Sports Association, must pay to the Claimant /
Counter-Respondent the following amount(s):
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−
−
RWF 400,000 net as outstanding amount, plus 5% interest p.a. as from 1 July 2022
until the date of the effective payment.
RWF 600,000 net as outstanding amount, plus 5% interest p.a. as from 1 August 2022
until the date of the effective payment.
RWF 15,000,000 net as outstanding amount, plus 5% interest p.a. as from
2 August 2022 until the date of effective payment.
3.
Any further claims of the Claimant / Counter-Respondent are rejected.
4.
The claim of the Respondent / Counter-Claimant is admissible.
5.
The claim of the Respondent / Counter-Claimant is rejected.
6.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
7.
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 / Counter-Claimant 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.
8.
The consequences shall only be enforced at the request of the Claimant / CounterRespondent in accordance with art. 24 par. 7 and 8 and art. 25 of the Regulations on the
Status and Transfer of Players.
9.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 11
REF. FPSD-8716
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
pg. 12