Labour Disputes
Texto da decisão
REF. FPSD-8504
Decision of the
Dispute Resolution Chamber
passed on 29 March 2023
regarding an employment-related dispute concerning
the player Patsheli Pinoki Vuvu
BY:
DE WEGER Frans (The Netherlands), Chairperson
NEWMAN Jon (USA), member
DE JONG Daan (The Netherlands), member
CLAIMANT:
Patsheli Pinoki Vuvu, Congo
Represented by Yakub Kizilkaya
RESPONDENT:
Kiyovu Sports Association, Rwanda
pg. 2
REF. FPSD-8504
I. Facts of the case
1.
On 6 September 2021, the player Patsheli Pinoki Vuvu from Congo (hereinafter: Claimant
or player) and the club Kiyovu Sports Association from Rwanda (hereinafter: Respondent or
club) concluded an employment contract (hereinafter: contract) valid as from 1 September
2021 until 30 June 2024.
2.
According to the contract, the Respondent undertook to pay the Claimant:
a.
b.
3.
In accordance with the information available in the Transfer Matching System (TMS), the
seasons in Rwanda are indicated as follows:
a.
b.
c.
4.
RWF 1,000,000 as a salary;
RWF 3,000,000 as a sign-on fee, payable at the start of each season.
2021/2022: 16 October 2021 to 18 June 2022;
2022/2023: 19 August 2022 to 04 June 2023;
2023/2024: TBA.
On 27 August 2022, the Respondent issued a letter with the following content. The parties
dispute whether such letter was signed by both parties or unilaterally by the club only
(hereinafter: the termination letter):
I MVUKIYEHE Juvenal certify that [the player] has played for [the club] during season
2021/2022. A well behaved player, committed as he was. He is free to leave the club, and [the
club] 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 wherever it is required.
[signed]
Juvenal MVUKIYEHE
President of [the club]
5.
According to the information contained in TMS:
a.
On 29 September 2022, the player was engaged by the club AS Simba, from Congo DR,
as an amateur;
b.
On 13 January 2023, the player and the Zambian club, Napsa Stars FC, signed a contract
valid as from the same date until 12 January 2025, for a monthly salary of ZMW 23,077
(approx. RWF 1,265,000).
pg. 3
REF. FPSD-8504
II. Proceedings before FIFA
6.
On 7 December 2022, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a. Position of the Claimant
7.
In his claim, the player argued that the club failed to pay the following amounts to the
player:
a.
b.
c.
d.
e.
f.
8.
Additionally, the player argued that the club terminated the contract without just cause on
27 August 2022, and requested payment of compensation of RWF 29,000,000,
corresponding to the residual value of the contract, as follows:
a.
b.
9.
RWF 1,000,000 due on 30 September 2021;
RWF 50,000 due on 30 November 2021;
RWF 1,000,000 due on 31 January 2022;
RWF 1,000,000 due on 30 April 2022;
RWF 1,000,000 due on 30 June 2022;
RWF 1,000,000 due on 30 July 2022.
23 salaries à RWF 1,000,000 each from August 2022 to June 2024
2 payments of the sign-on fee for RWF 3,000,000 each due respectively in September
2022 and September 2023
The Claimant’s request for relief was as follows:
“Given all the foregoing, the Claimant requests the DRC to:
i. Order that the Respondent shall pay the overdue and unpaid amount of [RWF 5,050,000]
with its interest %5 per year from the due date of each payment (above-given) until the
effective payment date,
ii. Order that the respondent shall pay [RWF 29,000,000] as a compensation because of the
breach of the contract,
iii. If and so far the amounts as mentioned above will not be paid to the Player within the
stated time limit, decide that the disciplinary sanctions will be imposed to the club.”
b. Position of the Respondent
10. In its reply, the Respondent opposed the claim of the player and argued that the
termination was mutually agreed between the parties. In support of this, the Respondent
filed a copy of the termination letter allegedly signed by both parties. In particular, the club
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REF. FPSD-8504
outlined that the player’s “departure was made because he wanted to return to his country
and he found a team that want him and stays near his family”.
c. Rejoinder of the Claimant
11. In his rejoinder, the Claimant filed a short statement, reproduced as follows:
“Related to the above-mentioned matter, we have received the reply letter of the respondent.
We would like to inform you that the player has never signed a document for mutual
termination. The document presented by the club is a falsified document. We have already
presented the original document in our claim (Please check Annex-4 of the claim). You can
find below the original version of the document and its content.
As you can see above, the document is including only a one-sided declaration. It is the
declaration of the president of the club. There is not any acceptance or declaration made by
the player. Once again, we would like to underline that the player has never signed a
document to make a mutual termination agreement. As you can see from the abovementioned letter, the club wanted to release the player without just cause. The mutual
termination agreement has never existed. On the contrary, the club terminated the contract
without just cause. After the player made a claim in front of FIFA, the club forged the
document and added the signature of the player to the above-given letter.
The player has never signed the other documents presented by the club also. Moreover, any
of the documents do not include any acceptance on a mutual termination. We hereby
maintain our claim. The contract was terminated by the club without just cause. As a result,
the club shall pay the unpaid salaries of the player and shall also pay compensation for the
termination without just cause.
Request for Relief:
The Claimant declares that he reserves his rights for surplus.
Given all the foregoing, the Claimant requests the DRC to:
i. Order that the Respondent shall pay the overdue and unpaid amount of 5.050.000 Rwanda
Francs (Frw) with its interest %5 per year from the due date of each payment (above-given)
until the effective payment date,
ii. Order that the Respondent terminated the contract without just cause.
iii. Order that the respondent shall pay 29.000.000 Rwanda Francs (Frw) as a compensation
because of the breach of the contract,
iv. If and so far the amounts as mentioned above will not be paid to the Player within the
stated time limit, decide that the disciplinary sanctions will be imposed to the club.“
pg. 5
REF. FPSD-8504
d. Final comments of the Respondent
12. The FIFA general secretariat invited the Respondent to file its final comments and to
provide the original document of the termination letter, to no avail, as no final comments
were filed by the Respondent.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
13. 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 7 December 2022 and
submitted for decision on 29 March 2023. Taking into account the wording of art. 34 of the
October 2022 edition of the Procedural Rules Governing the Football Tribunal (hereinafter:
the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to
the matter at hand.
14. 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 October 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
Congo and club from Rwanda.
15. 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 (October 2022 edition), and
considering that the present claim was lodged on 7 December 2022, 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
16. 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).
c. Merits of the dispute
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17. 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
18. The foregoing having been established, the Chamber moved to the substance of the matter
and took note of the fact that according to the Claimant, the club terminated the contract
without just cause, while the club argues that the termination letter was produced at the
player’s request and by mutual consent, and therefore that the termination was of mutual
consent.
19. The Chamber also took note of the fact that the parties dispute the authenticity of the cited
termination letter. In particular, the Claimant insists that the co-signed specimen of the
termination letter was forged, to which the Respondent failed to reply. Thus, the Chamber
understood that would need to establish whether the disputed document could in fact be
taken into consideration in the context of the present case.
20. Bearing in mind the foregoing, the Chamber went on to analyse the documentation
provided by both parties in support of their position. The Chamber also emphasised that,
according to the last sentence of art. 13 par. 3 of the Procedural Rules it has ultimate
discretion to as to the weight it gives to evidence.
21. At this stage, the Chamber considered appropriate to remark that, as a general rule, FIFA’s
deciding bodies are not competent to decide upon matters of criminal law, such as the
ones of alleged falsified signature or documents, and that such affairs fall into the
jurisdiction of the competent national criminal authority. In order to be able to solve such
disputes in a satisfactory and timely manner, without the need to wait for the initiation and
conclusion of a potential criminal investigation, the Chamber adopts a practical procedure
in such cases, namely to request the party who claims the authenticity of the disputed
document to provide its original version via regular mail. If for a layman the document
appears to be authentic and in line with the further documentation on file, such document
is considered as authentic for the purposes of solving the dispute at hand.
22. After thoroughly analysing the documentation produced by the parties, the Chamber
noted that the Respondent was not able to provide the original of such document within
the given deadline. Therefore, in line with FIFA’s well-established jurisprudence, the
Chamber established that the termination letter could not be taken into account in the
context of the present dispute.
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23. As such, the Chamber was left with no option but to fully set aside the position of the club.
Accordingly, it confirmed that the Respondent terminated the contract without just cause
and shall endure the consequences that follow.
ii. Consequences
24. Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent.
25. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are equivalent to 6 salaries under
the contract, i.e., the full salaries of September 2021, January 2022, April 2022, June 2022,
and July 2022, as well as the partial salary for November 2021, amounting to a total of RWF
6,050,000.
26. 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 amounts
which were outstanding under the contract at the moment of the termination, i.e., RWF
6,050,000.
27. 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. on the outstanding amounts as from their respective due dates until the date of
effective payment.
28. Having stated the above, the Chamber 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
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 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.
29. 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.
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REF. FPSD-8504
30. As a consequence, the members of the Chamber 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 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.
31. Bearing in mind the foregoing as well as the claim of the player, the Chamber 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 Chamber
concluded that the amount of RWF 28,000,000 (i.e., the residual value of the contract, being
RWF 7,000,000 for the remainder of the year 2022, plus RWF 15,000,000 for the year 2023,
plus RWF 6,000,000 from January to June 2024) serves as the basis for the determination
of the amount of compensation for breach of contract.
32. In continuation, the Chamber 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.
33. Indeed, approximately four months after the termination of the contract by the club, the
player found gainful employment with Napsa Stars FC. In accordance with the pertinent
employment contract, the player was entitled to approximately RWF 1,265,000 per month.
Therefore, and despite a period of unemployment due to the unjust termination by the
club, the majority of the Chamber concluded that the player mitigated his damages
entirely.
34. Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations. In the case
at hand, the Chamber confirmed that the contract termination did not take place due to
overdue payables by the club, and therefore decided that the player shall not receive
additional compensation.
35. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber, by majority decision decided that the player
shall not receive any compensation.
iii. Compliance with monetary decisions
36. 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
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concerned party to pay the relevant amounts of outstanding remuneration and/or
compensation in due time.
37. 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.
38. 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.
39. 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.
40. 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
41. 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.
42. 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.
43. 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-8504
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Patsheli Pinoki Vuvu, is partially accepted.
2.
The Respondent, Kiyovu Sports Association, must pay to the Claimant the following
amounts:
a. RWF 1,000,000 as outstanding remuneration plus 5% interest p.a. as from 1 October
2021 until the date of effective payment;
b. RWF 50,000 as outstanding remuneration plus 5% interest p.a. as from 1 December
2021 until the date of effective payment;
c. RWF 1,000,000 as outstanding remuneration plus 5% interest p.a. as from 1 February
2022 until the date of effective payment;
d. RWF 1,000,000 as outstanding remuneration plus 5% interest p.a. as from 1 May 2022
until the date of effective payment;
e. RWF 1,000,000 as outstanding remuneration plus 5% interest p.a. as from 1 July 2022
until the date of effective payment;
f.
RWF 1,000,000 as outstanding remuneration plus 5% interest p.a. as from 1 August 2022
until the date of effective payment;
g. RWF 1,000,000 as outstanding remuneration plus 5% interest p.a. as from 27 August
2022 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 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.
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REF. FPSD-8504
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-8504
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
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