Labour Disputes
Texto da decisão
REF. FPSD-13340
Decision of the
Dispute Resolution Chamber
passed on 22 April 2024
regarding an employment-related dispute concerning the player Kankonde
Tschisungu
COMPOSITION:
Lívia SILVA KÄGI (Brazil & Switzerland), Deputy Chairwoman
Michele COLUCCI (Italy), Member
Andre DOS SANTOS MEGALE (Brazil), Member
CLAIMANT:
Kampala Capital City Authority FC, Uganda
Represented by Timothy Kajja
RESPONDENT:
Kankonde Tschisungu, DR Congo
INTERVENING PARTY:
Telecom Egypt, Egypt
Represented by Uno-One Legal Partners
pg. 2
REF. FPSD-13340
I. Facts of the case
1.
On 5 July 2022, the Ugandan club Kampala Capital City Authority FC (hereinafter: Club or
Claimant) and the Congolese player Kankonde Tschisungu (hereinafter: Player or
Respondent) concluded an employment contract valid as from 1 July 2022 until 30 June
2024 (hereinafter: Contract).
2.
Pursuant to clause 2 of the Contract, the Club undertook to pay the Player inter alia the
following amounts:
3.
•
UGX 1,000,000 as monthly salary, totalling UGX 24,000,000 for the duration of the
Contract;
•
UGX 10,000 as remuneration per day worked, totalling UGX 300,000 “at the end of
each month if fully attended”;
•
UGX 1,900,000 as “settlement fee for the entire contractual period”.
On 11 September 2023, the Club opened disciplinary proceedings against the Player for an
alleged unauthorized absence. The Club’s e-mail reads as follows, in verbis:
“DISCIPLINARY ACTION AGAINST YOU
Reference is made to the above subject matter.
On 3rd September 2023, you were named among the starting 11 to feature in the Preseason Super 8 3rd playoff game against SC Villa at the MTN Omondi Stadium.
We were however informed by the Coach that you did not turn up for the match day and
neither did you notify the technical team or Administration of your inability to show up
as expected of you. It is also important to note that the Starting 11 Line up was posted
in the Players WhatsApp group by the captain (Julius Poloto) on 2nd September 2023 as
norm is and you accordingly reacted in the group thereafter the said post.
Efforts to reach you to find out your situation were futile as your known telephone
number was off. The Club proceeded to visit your premises as provided by the Club and
it was noted that no personal belongings were found at the said premises which situation
caused alarm to the Club.
The Club accordingly proceeded to file a Police report and obtained Ref No:
55/07/09/2023 at Kira Road Police Station upon failure to trace you and later on, it was
noted that you travelled to Congo through a fellow Player and Whatsapp phone call on
a different number to the CEO on 10th September 2023.
pg. 3
REF. FPSD-13340
Based on the above and a series of other indiscipline issues sighted on the field of play.
The Club hereby suspends you for 2 months with half pay effective September 2023 to
31st October 2023.
We hope that you use this time to reflect on your role and will come back a reformed
person ready to serve the Club”.
4.
On 10 November 2023, the Club wrote to the Player once again and stated as follows, in
verbis:
“BREACH OF CONTRACT
Reference is made to the suspension letter issued to you dated 11th September 2023
regarding your disciplinary issues.
We would like to notify you that your suspension period ended on 31st October 2023
however to date you have not returned to training.
Reference is made to your contract Clause 3 (i) where in you are required to attend all
training sessions and matches as scheduled by the Club. Note that your absence
tantamount to abscondment from duty without reasonable excuses/reasons which is a
breach of your contract.
The Club here by reminds you to report for duty at the Club not later than the 14th day
of November 2023, lest further legal action will be taken against you”.
5.
Also on 10 November 2023, the Player wrote to the Club, in verbis:
“Concerns: Breach of contract with [the Club] for just cause.
Mr. President, as any other soccer athlete ambitious of his sporting career to face certain
levels on date 5/07/2022 I had to sign a professional sports contract with your team [...]
in the presence of Anisha shahir muhoozi and Martin ssekajja for a duration of 2 years
-07 /2022 to 06/2024.
Unfortunately I would like to inform you that following a series of sporting and extrasporting events that took place on Ugandan territory, the attitude of certain managers
towards me was negative. I judged this attitude to be negative, because there was no
effort or recognition on your part towards a player who brought you a lot of good
performance on the pitch, and you had not sought in any serious way to resolve our
differences.
pg. 4
REF. FPSD-13340
This set of attitudes and extra-sporting circumstances leads me today to use my sporting
right as authorized by Fifa in its article 14 bis Breach of contract for just cause, effectively
it's been 3 months since I've been paid, I've only received 280 dollars for the month of
September, over the 3 months that I claim the contract has not been respected, on
several occasions I have meant to some responsible for this situation no financial
solution has been found. the contract signed 05/07/2022 is no longer respected it's been
3 months. Salary has not been as agreed on the contract signed, default of payment for
September, October, November from two months of non-payment of salary a player has
the right to use the just cause for non-payment of salary.
Following this, I clearly inform you of the breach of contract for just cause, because the
salary of the month of October and September, November have never been paid
correctly as provided in the contract, so 20 days have passed since the last reminder
where I had informed you that I am still not paid, the club [...] is in the obligation to
respite a contract when it is signed legally, even when a player is suspended for a red
card”.
6.
On 17 November 2023, the Club acknowledged receipt of the abovementioned letter, and
responded as follows, in verbis:
“NOTICE OF INTENTION TO INITIATE LEGAL PROCEEDINGS
Reference is made to our letter dated 10th November 2023 wherein we reminded you
to report for duty at the Club no later than the 14th day of November 2023.
You have since defied our call to duty without any justification.
This is to put it to your notice that your omissions and acts of defiance amount to
abscondment from duty in breach of your contract with [the Club] and the laws
governing football both locally and internationally at FIFA.
Further note that if you DO NOT report to the Club's official training ground on or before
Friday 24th November 2023; the Club shall be left with no other options other than to
initiate legal proceedings against you in demand for any or all of the following;
1) A fine against you not less than USD 5,000 for breach of contract together with
settlement fees equivalent to USD 50,000.
2) That you be suspended from football related activities for a period not less than one
year (12 months).
3) That your contract be terminated by the Club with a just cause.
With all the above therefore, expect no further warnings”.
pg. 5
REF. FPSD-13340
7.
On 7 December 2023, the Club reiterated its previous letters to the Player, in verbis:
“RE: BREACH OF CONTRACT
Reference is made to your letter Ref: 005/10.11.2023 delivered to us on 4th December
2023 via WhatsApp. Further reference is made to ours dated 11th September 2023, our
second dated 10th November 2023, and our third dated 17th November 2023 shared to
your WhatsApp accordingly.
To yours we respond as follows:
1) Vide a letter dated 11th September 2023, we informed you of our decision to take
disciplinary action against you. for reasons well detailed in the said letter. (A copy of the
letter is attached hereto for ease of reference)
2) In the above letter, we informed you that as a result of your acts and omissions, you
were suspended for two months, during which you were to receive only half of your
salary.
3) Under Clause 2 of your contract with [the Club] you were originally to receive a net
monthly salary of UGX 1,300,000 transport inclusive.
4) In light of the above club disciplinary sanction, you were to receive a net pay of only
UGX 650,000 which is the mathematical equivalent of 50% of your net contractual pay.
5) Though you received our communication. you never officially protested or appealed
against the disciplinary sanction. Thus, it became legally binding on you and it was
incumbent on us to operationalize the same.
6) We have been religiously paying the emoluments due to you, and we have attached
hereto the proof of payments for the subject months, for your record.
7) In response to paragraph two of your letter, if you have/had any ‘differences’. the club
has always had procedures on how we resolve such matters and we still encourage you
to exploit the same.
8) In response to paragraph three of your letter, as elucidated above, your salary was
subjected to a club disciplinary sanction. Your salaries for the mentioned months have
been paid in a timely manner, subject to the above-described penalty. We have attached
the proof of payments hereto for your record.
pg. 6
REF. FPSD-13340
9) In response to paragraph four, the club did not suspend you on the basis of a red card
received on the field of play, the reasons for your suspension are detailed in our letter
dated 11th September, 2023.
In furtherance of our communication, our letter dated 17th November 2023, re-attached
hereto for ease of reference, this is to also inform you that if you do not report to camp
no later than Tuesday, 12th December, 2023, we shall initiate legal proceedings against
you at FIFA on Wednesday 13th December, 2023”.
8.
No further correspondence was issued by any of the parties.
The subsequent employment relationship in Egypt
9.
On 28 January 2024, the Player entered into a new employment agreement with the
Egyptian club, Telecom Egypt (hereinafter: Telecom or Intervening Party) valid for half a
season, i.e., as from January until June 2024 (hereinafter: Telecom Contract).
10. Pursuant to the Telecom Contract, the Player would be entitled to a total remuneration of
EGP 187,500.
11. According to the information retrieved from the FIFA Transfer Matching System (TMS):
•
On 30 January 2024, 02:44 EGY, Telecom entered a transfer instruction to engage
the Player permanently as out of contract (TMS instruction no. 7398103). The
accompanying documents were: (i) the Telecom Contract; (ii) the international
passport of the Player; and (iii) the letter of the Player of 10 November 2023
(“proof of unilateral termination”);
•
On 30 January 2024, 14:23 EGY, the Egyptian Football Association (EFA) requested
the Federation of Uganda Football Associations (FUFA) to issue the International
Transfer Certificate (ITC) of the Player;
•
On 30 January 2024, 15:46 EGY, EFA cancelled the transfer with the remark “At the
request of the Telecom Egypt”.
12. Also on 30 January 2024, the Player and Telecom signed a mutual termination agreement
and released each other from any liabilities.
pg. 7
REF. FPSD-13340
II. Proceedings before FIFA
13. On 13 January 2024, the Club filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Claim of the Club
14. In its claim, the Club shortly explained the following, in verbis:
“1. The claimant is a Ugandan club playing in the Uganda Premier League.
2. The respondent is a Congolese national player born on 10/10/1999.
3. The parties signed a contract with a Ugandan club on 5/07/2023, valid for 24 months.
4. On 11/09/2023 the player was named on the playing squad and the same was
communicated to him by the Coach and the team captain.
5. The player absented himself without reason, communication or apology.
6. In the following days, the club continued to sending communications to the player but
in vain.
7. The club later visited the known residence of the player, that the club was paying for,
only to find it empty.
8. The club then intensified investigation into the whereabouts of the player.
9. The club reported the matter to Police under reference number 55/07/09/2023, at Kira
Road Police Station in Kampala.
10. The club later established that the player had flown back to his home country, the
Democratic Republic of Congo.
11. The Club later reestablished communication with the player who confirmed that he
had gone back to his home country.
12. In accordance with the Club policies, the player was suspended for 2 months, ending
on 31stOctober, 2023.
13. On the 10th of November, the club informed the player that the suspension had lapsed
and summoned him back to the club.
pg. 8
REF. FPSD-13340
14. On the 17th day of November 2023, the club informed the player that it shall initiate
legal proceedings against him if did not return to fulfil his contractual obligations with
the club.
15. On the 7th of December, 2023, the club sent out a final warning to the player,
summoning him to return to the club, but in vain.
16. Nonetheless, the player still continues to absent himself from the club without any
apology or justification whatsoever.
17. The communications were being sent to the player via WhatsApp and screenshots of
confirmation of receipt are attached hereto.
18. The claimant seeks special and exemplary damages for breach of contract of USD
10,000/ USD taking into consideration of value of the contract and the unapologetic
behaviour of the player as an aggravating factor.
19.The claimant also prays that sporting sanctions of at least six months be imposed
because the breach happened in the protected period and the presence of aggravating
factors described above.
15. On 15 January 2024, the FIFA general secretariat acknowledged receipt of the Club’s claim
and requested inter alia to be provided with “confirmation of the amount in dispute together
with a detailed breakdown, indicating individually: (i) each of its components, (ii) their currency,
(iii) their contractual basis and (iv) which period of time (day/month/year) they correspond to”.
16. On 18 January 2024, the Club detailed and amended its request for relief as follows, in
verbis:
“The claims are based on a professional contract between the claimant and the
respondent, signed on 5th July, 2022. The contractual term is/was 24 months. The
claimant prays for the following amounts;
a. Consideration in line with Article 2 (a) of the contract between the parties - USD
6300.72 (UGX 24,000,000)
b. Consideration in line with Article 2(b) of the contract - USD 1890.22 (UGX 7,200,000)
c. Consideration in line with Article 2(c) of the contract - USD 498.81 (UGX 1,900,000)
Total amount in dispute - USD 8689.75
d. Punitive damages - USD 1500
pg. 9
REF. FPSD-13340
e. Legal fees - USD 2000
Total amount- USD 2189.75
The total value claimed in the dispute – USD 10,879.5”.
b. Reply of the Player
17. On 18 January 2024, the FIFA general secretariat wrote to the Player via the e-mail address
provided by the Club. Contextually, the Player was informed of the existence of a claim
pending against him before the Football Tribunal, as well as requested to confirm his
contact details for the purposes of communication (cf., art. 10 of the Procedural Rules
Governing the Football Tribunal).
18. On the same date, i.e., 18 January 2024, the Player replied to the abovementioned e-mail
and inter alia submitted comments concerning his relationship with the Club. The Player
attached to his email a copy of the Contract, his international passport, and a picture of an
outdoor advertisement where he was pictured wearing the uniform of the Club.
19. On 19 January 2024, the FIFA general secretariat acknowledged receipt of the Player’s email however highlighted that any reply should be filed exclusively via the FIFA Legal Portal.
The Player was therefore instructed to register to the FIFA Legal Portal and submit his reply
by no later than 8 February 2024 exclusively via said platform. Likewise, he was informed
of his right to appoint a legal representative to act on his behalf.
20. On 8 February 2024, the FIFA general secretariat reiterated their previous correspondence
to the Player via email, as follows:
“As a matter of courtesy only, we kindly remind you of the below, in particular: Any reply
must be filed exclusively via the FIFA Legal Portal by no later than 8 February 2024.
Documents sent via email will not be taken into consideration.”
21. The deadline granted to the Player elapsed and no valid reply was filed.
c. Reply of the Telecom
22. On 13 February 2024, the FIFA general secretariat acknowledged that (i) no reply had been
received from the Player in the case at hand, as well as (ii) following the termination of the
Contract, he entered into an employment agreement with Telecom, as reflected in TMS.
23. In light of the contents of art. 17, par. 2 and 4 of the FIFA Regulations on the Status and
Transfer of Players (RSTP), Telecom was then invited to file its comments on the claim of
the Claimant, which it did on 12 March 2024.
pg. 10
REF. FPSD-13340
24. According to Telecom, it firstly got in touch with the Player in late January 2024, when he
was already free agent. In this respect, the latter explained, in verbis:
“6. Telecom and the Player got in contact in late January 2024 when the former learned
that the Player is a free agent. The Player approached Telecom indicating that he is a free
agent and that his employment relationship with the last club (i.e. the Claimant) was
terminated due to non-payment of salaries by the Claimant [...].
7. Accordingly, Telecom and the Player negotiated and signed an employment contract
on 28 January 2024 for half a season i.e. until the end of the football season 2023-24 in
Egypt [...];
8. Accordingly, on 30 January 2024, through the Egyptian Football Association, an ITC
request was created in the FIFA TMS for the Player.
9. However, on the same day, the Player and Telecom mutually terminated their
employment relationship [...].
10. The same is also evident from FIFA TMS. As can be seen from the FIFA TMS instruction,
the status of the ITC indicates "cancelled" implying that the Player was "never registered"
with Telecom [...].
11. Further, from the FIFA TMS, it can be seen that currently (at the time of filing Telecom’s
position), the Player appears to be registered with the Claimant and the ITC is with
Federation of Uganda Football Associations (FUFA) [...].
12. Thus, the Player was never registered with Telecom after the unilateral termination
between the Claimant and the Player.”
25. In light of the above, Telecom highlighted that the employment relationship between the
parties lasted less than 2 days and the Player was never registered, hence that it is not the
“new club” in line with art. 17 of the FIFA RSTP.
26. The requests for relief from Telecom were as follows, in verbis:
“Based on the above, Telecom respectfully requests the FIFA Football Tribunal to rule
that:
• Telecom is not liable for any potential breach committed by the Player under his
contract with the Claimant.
• Telecom is not the new club under Article 17 para. 2 of the FIFA RSTP.
• Telecom cannot be jointly and severally liable for any compensation that the Player is
pg. 11
REF. FPSD-13340
ordered to pay the Claimant.
• No sporting sanctions can be imposed on Telecom.
• To dismiss any claim against Telecom in its entirety.
• Telecom is not liable to bear the costs of the proceedings, if any”.
d. Additional comments of the Club
27. On 18 March 2024 and at request of the FIFA general secretariat, the Club filed additional
comments concerning the Player’s alleged termination due to overdue payables.
28. Accordingly, the Club explained that since the beginning of September 2023, the Player was
absent without authorization reason why he was suspended, and his remuneration was
cut to half until the end of October 2023. The Club highlighted that the Player had never
challenged such decision, but simply decided to go back to his home country without
warning.
29. The Club stated that as the Player was not rendering any services, he was also not entitled
to receive any remuneration. The Club referred to CAS jurisprudence in support of its
argumentation.
30. Furthermore, the Club recalled the wording of the Player’s letter of 10 November 2023 and
challenged the existence of just cause by the Player. In particular, the Club explained that
the requirements of art. 14bis of the FIFA RSTP are not fulfilled.
31. In continuation, the Club challenged Telecom Egypt position and stressed that it is indeed
the new club of the Player. In this respect, the Club argued that the registration is only
relevant when there is more than one club involved and FIFA needs to analyse who is the
ultimate employer of the player. Nevertheless, allowing for a scenario such as the one in
hand would mean that “clubs may directly or indirectly induce players into breaching their
contracts with clubs, and then dropping the players or terminating the players before they
register them”. Likewise, the Club maintained that sporting benefit is not a criterion for the
determination of the joint liability.
32. Finally, the Club amended its requests for relief as follows, in verbis:
“53. The claims are based on a professional contract between the claimant and the
respondent, signed on 5th July, 2022. The contractual tern is/was 24 months, and the
sign on fees.
I. Consideration in line with Article 2(a) of the contract between the parties - USD
6300.72 (UGX 24,000,000)
pg. 12
REF. FPSD-13340
II. Consideration in line with Article 2(b) of the contract - USD 1890.22 (UGX 7,200,000)
III. Consideration in line with Article 2(c) of the contract - USD 498.81 (UGX 1,900,000)
Total amount in dispute - USD 8689.75
IV. Punitive damages against the player - USD 1500
V. Punitive and Exemplary damages against Telecom Egypt - USD 50000
VI. Lost earnings in transfer fees - USD 80,000
VII. Legal fees-USD 5000
Total amount-USD 136,500
The total value claimed in the dispute - USD 145,189.75”.
e. Additional comments of the Player and Telecom
33. On 22 March 2024, the FIFA general secretariat acknowledged receipt of the additional
comments filed by the Club and of its amendment to the claim. Consequently, and to
safeguard the parties’ right to be heard, the Player and the Telecom were again invited to
submit their comments, if any.
34. On 25 March 2025, the Telecom insisted that it was not the “new club” of the Player for the
purposes of art. 17 of the FIFA RSTP. In addition, Telecom stressed that the Club had not
advanced any evidence “concerning punitive damages and loss of transfer fee”.
35. The Player, for his part, did not file any comment.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
36. First of all, the Dispute Resolution Chamber (hereinafter: 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 12 January 2024 and submitted for decision
on 22 April 2024. Taking into account the wording of art. 34 of the March 2023 edition of
the Procedural Rules Governing the Football Tribunal (hereinafter: Procedural Rules), the
aforementioned edition of the Procedural Rules is applicable to the matter at hand.
pg. 13
REF. FPSD-13340
37. Furthermore, 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 par. 1 lit. b) of the FIFA
RSTP (February 2024 edition), the DRC is competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension between an
Ugandan club and a Congolese player, with the involvement of an Egyptian club.
38. 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 FIFA RSTP (February 2024 edition) and considering that the present claim was
lodged on 12 January 2024, the May 2023 edition of said regulations (hereinafter:
Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
39. 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 TMS.
c. Merits of the dispute
40. 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
41. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that it pertains to a claim for breach of contract lodged
by the Club against the Player with the involvement of the Intervening Party.
42. In particular, the DRC noted that the Club requests to be awarded compensation for breach
of contract based on the allegations that:
(i)
the Player fled the country in early September 2023 without authorization;
(ii)
due to his absence, it informed him of the opening of disciplinary proceedings,
which led to a suspension and reduction of his remuneration until the end of
pg. 14
REF. FPSD-13340
October 2023;
(iii)
even after the end of the suspension, the Player did not resume rendering
services, but decided to terminate the Contract allegedly due to overdue
payables.
43. The Chamber also outlined that the Player failed to reply to the claim despite having been
invited to do so in two different opportunities. As such, the DRC considered that the Player
renounced his right to defence (cf. art. 21 par. 1 of the Procedural Rules).
44. Lastly, the DRC took due consideration of Telecom’s position concerning the aftermath of
the termination and its standing as the “new club” in the case at hand.
45. Against this background, the Chamber determined that its task was to answer: (i) when and
by whom was the Contract terminated? (ii) did the termination take place with just case?
and (iii) what are the consequences that follow?
46. The Chamber then moved to the analysis of each topic in turn.
A. When and by whom was the Contract terminated?
47. As a preliminary remark, the Chamber acknowledged that there was limited evidence on
file, reason why it found it was rather challenging to reconstruct the factual background of
the case.
48. While considering the above, the DRC found it essential that in early November 2023, the
parties exchanged messages concerning the Player’s duty to return to the Club, especially
after his disciplinary suspension. From the documentation on file, it seemed to the
Chamber that the Club was still interested in retaining the Player’s services up until the
moment when it received his letter dated 10 November 2023.
49. The Chamber also highlighted that, in the abovementioned letter, the Player stated inter
alia the following:
“This set of attitudes and extra-sporting circumstances leads me today to use my
sporting right as authorized by Fifa in its article 14 bis Breach of contract for just
cause, effectively it's been 3 months since I've been paid, I've only received 280 dollars
for the month of September, over the 3 months that I claim the contract has not been
respected, on several occasions I have meant to some responsible for this situation no
financial solution has been found. the contract signed 05/07/2022 is no longer respected
it's been 3 months. Salary has not been as agreed on the contract signed, default of
payment for September, October, November from two months of non-payment of salary
a player has the right to use the just cause for non-payment of salary.
pg. 15
REF. FPSD-13340
Following this, I clearly inform you of the breach of contract for just cause, because
the salary of the month of October and September, November have never been
paid correctly as provided in the contract, so 20 days have passed since the last
reminder where I had informed you that I am still not paid, [the Club] is in the obligation
to respite a contract when it is signed legally, even when a player is suspended for a red
card” (emphasis added by the DRC).
50. Irrespective of finding the timeline of the case and the Player’s narrative blurry, the
Chamber concurred that the abovementioned letter was sufficiently clear to establish the
Player’s intention to prematurely terminate the Contract due to alleged overdue payables
by the Club. The DRC found it equally important that such letter was uploaded into TMS by
Telecom as the “proof of last contract end”, therefore confirming that the Player was the one
ending his relationship with the Club and not the other way around.
51. In view of the above, the Chamber decided that the Contract was terminated by the Player
on 10 November 2023.
B. Did the termination take place with just cause?
52. Having established that the termination took place on the Player’s initiative, the DRC
determined that he bore the burden of proving the existence of a just cause.
53. In this regard, the Chamber recalled its 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 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 to assure the fulfilment of contractual duties by the
counterparty, such measures must be taken before terminating an employment contract.
A premature termination of an employment contract can only be an ultima ratio measure.
54. In casu, due to the lack of response by the Player to the Claimant’s claim, the Chamber
found itself limited to assess his allegations concerning the overdue payables on the basis
of the termination notice. As such, the DRC underscored that the underlying question to
be answered was whether there was enough documentation on file to support the Player’s
position that the requirements of art. 14bis of the Regulations were met and/or that he
had just cause to terminate the Contract for other reasons, i.e., in line with art. 14 of the
Regulations.
55. In doing so, the Chamber underlined that the Player asserted in the termination letter that
“because the salary of the month of October and September, November have never been paid
correctly as provided in the contract, so 20 days have passed since the last reminder where I
had informed you that I am still not paid”.
pg. 16
REF. FPSD-13340
56. To this extent, the DRC found it decisive that:
• The Club advanced evidence of having paid half of the salaries of the Player for
both months (i.e., UGX 650,000 on 26 September 2023 and UGX 650,000 on 1
November 2023);
•
The Player acknowledged in his termination letter that he was paid part of the
salary of September, namely USD 280 (UGX 1,077,140);
•
At the time the termination letter was sent by the Player the salary of November
was not yet due in that it should be paid by the end of the same month.
57. On this note, the Chamber concluded that at the time of the termination, the maximum
(disputed) outstanding remuneration comprised the halves of the salaries of September
and October 2023, withheld by the Club due to the disciplinary proceedings. Consequently,
irrespective of the analysis as to (i) the validity of such retention by the Club and (ii) the
Player’s entitlement to his remuneration if indeed absent; the DRC could already establish
that the potential debt amounted to less than two salaries.
58. The above finding together with the fact that there was no proof on file suggesting that the
Player had ever put the Club in default before terminating the Contract, led the DRC to the
conclusion that the requirements mentioned in art. 14bis of the Regulations are not met.
By the same token, the Chamber was not convinced that the disciplinary sanction (i.e.,
salary reduction) imposed by the Club could per se justify the termination by the Player as
an ultima ratio measure – especially when considering that the circumstances involving his
absence were undocumented.
59. Therefore, the DRC decided that the Contract was terminated without just cause as the
Player could not discharge his burden of proof to demonstrate otherwise.
C.
What are the consequences that follow?
60. As a departure point, the Chamber outlined that any compensation for breach of contract
owed to the Club would be without prejudice of the Player’s right to receive his outstanding
remuneration, if any. Nevertheless, because no counterclaim was filed, the DRC
established that it had no mandate to assess this matter in line with the principle of ne ultra
petita.
61. In continuation, the Chamber turned to the calculation of the amount of compensation
payable to the Club by the Player in the case at stake. In doing so, the Chamber 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
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REF. FPSD-13340
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,
the fees and expenses paid or incurred by the former club (amortised over the term of the
contract) and depending on whether the contractual breach falls within the protected
period.
62. In application of the relevant provision, the Chamber 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 Chamber
established that no such compensation clause was included in the employment contract at
the basis of the matter at stake.
63. As a consequence, the Chamber determined that the amount of compensation payable by
the Player to the Club had to be assessed in application of the other parameters set out in
art. 17 par. 1 of the Regulations. The Chamber recalled that said provision provides for a
non-exhaustive enumeration of criteria to be taken into consideration when calculating the
amount of compensation payable.
64. Bearing in mind the foregoing as well as the claim of the Club, the Chamber proceeded
with the calculation of the monies payable to the Player under the Contract until its term.
Consequently, the DRC concluded that the amount of UGX 9,966,666.66 serves as the basis
for the determination of the amount of compensation for breach of contract, broken down
as follows:
• UGX 866,666.66 as the pro rata salary of November 2023 (i.e., 20 days); and
• UGX 9,100,000 as the Player’s remuneration from December 2023 until June 2024
(i.e., 7 months à UGX 1,300,000 each per clause 2, lit. a and b).
65. In continuation, the Chamber verified whether the Player had signed an employment
contract with another club during the relevant period of time. According to the constant
practice of the Chamber as well as art. 17 par. 1 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 due by a Player to his former club. In
particular, the Chamber explained that its standard practice is to calculate the average
between the player’s remuneration with his former club and his remuneration with the
new club, for the exact same period of time comprised between the early termination of
the employment contract with the old club and the original expiry date of such contract.
66. At this stage, the Chamber recalled that the contractual situation of the Player following
the termination of the Contract was sui generis: he entered into a new employment
relationship with Telecom, which was however terminated on the same date by mutual
agreement. Against this background, the Chamber deemed that Telecom Contract was not
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REF. FPSD-13340
an accurate parameter for the calculation of the compensation insofar as (i) no service was
ever rendered by the Player to Telecom, as well as (ii) no consideration was received by any
of the parties. The DRC equally highlighted that the Player’s registration with Telecom was
never completed.
67. Thus, the Chamber considered that the value of the subsequent contract of the Player
should be equal to zero i.e., as if he had not found a new employment. It followed that the
average between the Player’s remuneration under the Contract and after its termination
amounts to UGX 4,983,333.33 (i.e., UGX 9,966,666.66 divided by 2).
68. Subsequently, the DRC recalled its jurisprudence according to which in case substantial
evidence was provided by the club, it could additionally grant the damaged club the nonamortised transfer fee paid for the player in breach and/or the like. Nevertheless, the
Chamber decided that all other criteria mentioned to by the Club in its additional
comments (i.e., punitive damages against the Player and Telecom, and lost earnings in
transfer fees) were speculative and not accompanied by any documentary evidence, hence
should be rejected.
69. Based on all the abovementioned considerations, the Chamber decided that the Player
should pay the amount of UGX 4,983,333.33 to the Club, which was to be considered a
reasonable and justified amount of compensation for breach of contract in the present
matter. In addition, the DRC determined that no interest should be awarded because not
claimed (ne ultra petita).
70. Lastly, the DRC recalled that in accordance with art. 17 par. 2 of the Regulations, the new
club of a player found to have breached a contract without just cause shall be jointly and
severally liable for the payment of compensation. For ease of reference, the Chamber
highlighted that such provision reads as follows:
“2. Entitlement to compensation cannot be assigned to a third party. If a professional is
required to pay compensation, the professional and his new club shall be jointly and
severally liable for its payment. The amount may be stipulated in the contract or agreed
between the parties” (emphasis added by the DRC).
71. Notwithstanding the above, the Chamber concurred that the case at hand was alien to its
standard jurisprudence where the joint liability of the professional player and their new
club is automatic. In particular, the DRC was not convinced that Telecom fit the definition
of “new club” for the purposes of the Regulations, let alone that it should be liable to the
consequences of the unlawful termination by the Player.
72. In the Chamber’s view, the abovementioned conclusion would follow the jurisprudence of
the Court of Arbitration for Sport (CAS) according to which the joint liability can be excluded
in exceptional circumstances (cf. Commentary on the RSTP, p. 205 et seqq). For instance,
the Chamber made reference to the following excerpt of CAS 2018/A/5693 Riga FC v. FC
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REF. FPSD-13340
Partizan & FIFA / CAS 2018/A75694 FC Partizan v. Riga FC & FIFA, which it deemed to be of
relevance for the analysis at hand:
“155. The Panel notes that the wording of Article 17 para. 2 RSTP is rather straightforward
as it does not prima facie restrict the new club’s liability (see also CAS 2014/A/3852).
156. Riga claims that the word ‘shall’ in Article 17 para. 2 RSTP must be construed to
mean ‘may’, i.e. that joint and several liability cannot be imposed mandatorily. According
to Riga, the CAS shall deviate from the literal wording and take into account the individual
circumstances of the case when applying the provision. Riga submits that the following
circumstances must considered in its favor:
157. First, there must be a valid cause for the joint and several liability imposed due to
the legal nature of Article 17 para. 2 RSTP. Riga refers in this regard to the case CAS
2013/A/3365 & 3366. Here, the Panel notes that this decision does not refer to Article 17
para. 2 RSTP. Moreover, the Panel finds that FIFA is not bound to the ‘types of
contracts/obligations’ enshrined in the Swiss Code of Obligations when regulating the
football market in the RSTP. Instead, in view of its autonomy, it may (subject to the order
public) rule that the only valid cause for holding a new club jointly and severally liable
derives from its status as the player’s ‘the new club’. Furthermore, the Panel takes note
of the fact that the SFT has not qualified Article 17 para. 2 RSTP as a provision that
violates Swiss public policy.
158. Next, Riga claims that it cannot be held liable for compensation since it did not
contribute or induce the Player to terminate the Partizan Contract. The wording of Article
17 para. 2 RSTP does not require any inducement by the new club. The purpose of the
provision is to hold liable any club that took (or could take) advantage of the
breach committed by the player. It follows from the aforesaid that whether or not Riga
was at fault is immaterial for the question of joint and several liability according to Article
17 para. 2 RSTP.
159. Riga further explains that an exception to the wording of Article 17 para. 2 RSTP
must be made with respect to the purpose of the provision, i.e. to protect contract
stability. The Panel is not persuaded by Riga’s argument. Instead, the Panel finds that
if a new club could take advantage of an unlawful termination of an employment
contract of a player without encountering any consequences this would constitute
a significant risk to contractual stability in the football market” (emphasis added
by the DRC).
73. The Chamber noted that the same rationale was also applied in CAS 2020/A/7054 Sporting
Clube de Portugal v. Rafael Alexandre de Conceicao & LOSC Lille & FIFA. In particular, the
Chamber outlined that by quoting the abovementioned “Riga Case” the Panel once again
considered that the joint liability would be somehow linked to an “advantage” by the new
club of the player in breach – being that a sporting or a financial consideration.
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REF. FPSD-13340
74. In application of the above to the case sub judice, the DRC was of the opinion that Telecom
did not enjoy any advantage with the transaction involving the Player, namely: (i) there was
no sporting gain because the Player was never registered nor rendered any service; and (ii)
there was also no financial gain because the Telecom Contract was terminated on the same
day as it was signed with no financial entitlement to any of the parties.
75. For completeness, the DRC also took due consideration of the Club’s position concerning
the lack good faith and due diligence by Telecom while signing the Player. Despite feeling
unimpressed with the Telecom’s sudden withdrawal from its agreement with the Player,
the Chamber deemed that the timeline of case and the lack of profit by/to Telecom was of
a higher weight.
76. In view of the foregoing, and on the basis of the information and documentation on file,
the Chamber deemed that the particular timeline encountered in the case at hand met the
threshold of exceptional circumstances for the exclusion of the joint liability for the
payment of the compensation. Consequently, the DRC decided that Telecom should not be
held jointly liable for the unlawful termination of the Contract.
ii. Compliance with monetary decisions
77. 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.
78. In this regard, the DRC highlighted that, against players, the consequence of the failure to
pay the relevant amounts in due time shall consist of a restriction on playing in official
matches up until the due amounts are paid and for the maximum duration of six months.
79. Therefore, bearing in mind the above, the DRC decided that, in the event that the Player
does not pay the amounts due to the club within 45 days as from the moment in which the
club communicates its relevant bank details, provided that the decision is final and binding,
a restriction on playing in official matches, for the maximum duration of six months shall
become effective on the player in accordance with article 24 paragraphs 2 and 4 of the
Regulations.
80. The Player shall make full payment (including all applicable interest) to the bank account
provided by the Club in the Bank Account Registration Form, which is attached to the
present decision.
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REF. FPSD-13340
81. The DRC recalled that the above-mentioned restrictions 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
82. 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.
83. 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.
84. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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REF. FPSD-13340
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Kampala Capital City Authority FC, is partially accepted.
2.
The Respondent, Kankonde Tschisungu, must pay to the Claimant the following amount(s):
- UGX 4,983,333.33 as compensation for breach of contract without just cause.
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 restricted on any football-related activity up until the due
amounts are paid. The overall maximum duration of the restriction shall be of up to six
months.
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 six months.
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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REF. FPSD-13340
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
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
pg. 24