Labour Disputes
Texto da decisão
REF. FPSD-10992
Decision of the
Dispute Resolution Chamber
passed on 18 October 2023
regarding an employment-related dispute concerning
the player Dennis Wanyoike
COMPOSITION:
Frans de Weger (Netherlands) , Chairperson
Peter Lukasek (Slovakia), member
Khalid Awad Al-Thebity (Saudi Arabia), member
CLAIMANT:
Dennis Wanyoike, Kenya
Represented by Kenya Footballers Welfare Association (KEFWA)
RESPONDENT:
Fountain Gate FC, Tanzania
pg. 2
REF. FPSD-10992
I. Facts of the case
1.
On 6 July 2022, the Kenyan player, Dennis Wanyoike (hereinafter: Claimant or player) and
the Tanzanian club, Fountain Gate FC (hereinafter: club or Respondent) concluded an
employment contract (hereinafter: contract) valid for a period of two years as from the
2022/2023 season until the 2023/2024 season.
2.
According to the information in TMS, the season dates are recorded as follows:
“2022/2023 - 01.07.2022 - 31.05.2023
2023/2024 -- 15.06.2023 - 31.05.2024”
3.
According to clause 4.2 of the contract, the club undertook to pay the player a net annual
compensation of Tanzanian Shillings (TZS) 5,520,000 which corresponds to a net monthly
wage of TZS 460,000.
4.
Additionally, the player was entitled to a sign-on fee of TZS 460,000 as per clause 4.3 of the
contract, which will be paid when the “arrives at the camp”.
5.
On 10 September 2022, after the player’s arrival in Tanzanian, he was requested by the
club “along with other Kenyan teammates to go back to his home country to obtain some
paperwork while his work permit was allegedly arranged by the Club, without providing any
further explanation or instructions to the Player.”
6.
On 16 October 2022, the player travelled back to Tanzania to be available for training,
“despite the Club failing to provide him with the work permit nor giving him further indications.”
7.
On 28 November 2022, the club sent the player a release agreement.
8.
On 22 December 2022, the club sent an internal memo to the player, where the player
amongst others was requested to train with a development team.
9.
On 25 December 2022, the player sent the club a letter, in terms of which he made it clear
“that he was hired for the first team, yet he had been requested to attend to a separate training.
Despite this the Player showed willingness to be present. Additionally, the Player highlighted that
he was owed several monthly payments, as well as the sign on fee, he had not been reimbursed
for the expenses he incurred in to arrive to camp and had not received his passport back nor
had been issued the corresponding work permit from the Club.”
10. On 14 February 2023, the player put the club in default requesting payment of his
outstanding salaries corresponding to September 2022 until January 2023 in the total
amount of TZS 2.300,000, plus TZS 460,000 as sign-on fee, granting it a deadline of 15 days.
pg. 3
REF. FPSD-10992
11. On 6 March 2023, the player terminated the employment contract invoking just cause for
outstanding salaries and abusive behaviour from the club.
12. The player is playing as an amateur at the Kenyan club, Terror Squad FC.
II. Proceedings before FIFA
13. On 20 July 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 Claimant
14. According to the Claimant, the club failed to comply with its contractual obligations.
15. The player further argued that the main reason “he was forced to terminate were due the
several outstanding salaries which was outstanding, accordingly he could not sustain himself,
nor attend to trainings given that he had no money and the club refused to provide him with the
adequate transportation promised despite his repeated requests to the club”.
16. The requests for relief of the Claimant, were the following:
-
TZS 3.220,000 + TZS 130,000 as outstanding salaries + 5% interest as of the relevant due dates
until the date of effective payment.
-
TZS 7,360,000 as the amount due as compensation for breach of contract + 5% interest as of 6
March 2023 until the date of effective payment.
-
In addition, the Player is requesting the FIFA DRC to impose sporting sanctions on the Club for
breach of contract, for the latter’s breach of contract within the protected period.
b. Position of the Respondent
17. Notwithstanding being invited to do so, the Respondent failed to reply to the claim.
pg. 4
REF. FPSD-10992
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
18. 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 20 July 2023 and submitted for
decision on 18 October 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.
19. 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 May 2023 edition), the Dispute Resolution
Chamber is competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a Kenyan player and a Tanzanian
club.
20. 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 (May 2023 edition), and
considering that the present claim was lodged on 20 July 2023, the May 2023 edition of said
regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
21. 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
22. 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.
pg. 5
REF. FPSD-10992
i. Main legal discussion and considerations
23. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the Claimant claims that he terminated the contract
with just cause, based on the alleged non-payment of certain financial obligations by the
Respondent as per the contract, in accordance with art. 14bis of the Regulations.
24. In this context, the Chamber acknowledged that their task was to determine, based on the
evidence presented by the parties, whether the claimed amounts had in fact remained
unpaid by the Respondent and, if so, whether the formal pre-requisites of art. 14bis of the
Regulations had in fact been fulfilled.
25. The Chamber noted that – after having been provided with the claim of the Claimant – the
Respondent failed to present its response. By not presenting its position to the claim, the
Chamber was of the opinion that the Respondent renounced its right of defence and, thus,
accepted the allegations of the Claimant.
26. Furthermore, as a consequence of the aforementioned consideration, the Chamber
expressed that it shall take a decision upon the basis of the documentation already on file;
in other words, upon the statements and documents presented by the Claimant.
27. The Chamber then referred to the wording of art. 14bis par. 1 of the Regulations, in
accordance with which, if a club unlawfully fails to pay a player at least two monthly salaries
on their due dates, the player will be deemed to have a just cause to terminate his contract,
provided that he has put the debtor club in default in writing and has granted a deadline
of at least 15 days for the debtor club to fully comply with its financial obligation(s).
28. The Chamber noted that the Claimant claims not having received his remuneration
corresponding to September 2022 until January 2023. Furthermore, the Chamber noted
that the Claimant has provided written evidence of having put the Respondent in default
on 14 February 2023, i.e. at least 15 days before unilaterally terminating the contract on 6
March 2023.
29. The Chamber also noted that in the case at hand the Respondent bore the burden of
proving that it indeed complied with the financial terms of the contract concluded between
the parties, however it failed to do so.
30. Additionally, the Chamber took note of the Claimant’s argument that that the club failed to
provide him with a valid work permit.
31. In this context, the Chamber referred to the jurisprudence of the Football Tribunal, which
as a general rule indicates, that it is the club´s duty and responsibility to obtain, if necessary,
a work permit or a visa for its players prior to the signing of an employment contract or
pg. 6
REF. FPSD-10992
during its period of validity, in order for players to be able to legally enter a particular
country and be in a position to render their services to the club.
32. Thus, the Chamber concluded that the Claimant had a just cause to unilaterally terminate
the contract, based on art. 14bis of the Regulations.
ii. Consequences
33. 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.
34. 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 TZS 3,220,000.
35. 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. TZS
3,220,000, corresponding to the following:
-
TZS 460,000 as sign on fee
TZS 460,000 as salary due for September 2022
TZS 460,000 as salary due for October 2022
TZS 460,000 as salary due for November 2022
TZS 460,000 as salary due for December 2022
TZS 460,000 as salary due for January 2023
TZS 460,000 as salary due for February 2023
36. 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 the respective due dates until the date of
effective payment.
37. The Chamber further remarked that player failed to provide evidence i.e., proof of
payment/invoice relating to travel expenses, therefore it decided to reject this part of the
player’s claim.
38. 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
pg. 7
REF. FPSD-10992
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.
39. 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.
40. 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.
41. 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 TZS 6,900,000 (i.e. TZS 460,000 X 15 months - March 2023
until May 2024) serves as the basis for the determination of the amount of compensation
for breach of contract.
42. 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.
43. In this respect, the Chamber noted that the player for the club, Terror Squad FC as an
amateur since the unilateral termination of the contract.
44. The Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to which, in case
the player did not sign any new contract following the termination of his previous contract,
as a general rule, the compensation shall be equal to the residual value of the contract that
was prematurely terminated.
45. In this respect, the Chamber decided to award the player compensation for breach of
contract in the amount of TZS 6,900,000, i.e. TZS 460,000 X 15 months, as the residual value
of the contract.
pg. 8
REF. FPSD-10992
46. Lastly, taking into consideration the player’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the player interest on said
compensation at the rate of 5% p.a. as of 6 March 2023 until the date of effective payment.
iii. Sporting Sanctions
47. The Chamber noted that the Respondent had simultaneously been held liable by the Football
Tribunal for the early termination of the employment contracts without just cause, namely in the
following cases:
a. Case ref. FPSD-10993
b. Case ref. FPSD-10994
c. Case ref. FPSD-10995
d. Case ref. FPSD-10996
48. Under article 17 par. 4 of the Regulations, in addition to the obligation to pay compensation, sporting
sanctions shall be imposed on any club found to be in breach of contract or found to be inducing a
breach of contract during the protected period.
49. As to the protected period, this is defined in the Regulations as “a period of three entire
seasons or three years, whichever comes first, following the entry into force of a contract,
where such contract is concluded prior to the 28th birthday of the professional, or two entire
seasons or two years, whichever comes first, following the entry into force of a contract,
where such contract is concluded after the 28th birthday of the professional”.
50. In the present case, the player was 23 years old when he signed the employment agreement, which
took place on 6 July 2022. As such, the Chamber confirmed that since the termination of the
employment agreement occurred on 6 March 2023, it took place within the protected period.
51. At the same time, the DRC recalled that the player terminated the contract with just cause, as the
club was found to be in breach of the employment contract. As such, and by virtue of art. 17 par. 4
of the Regulations, the Chamber decided that the Respondent shall be banned from registering any
new players, either nationally or internationally, for the two next entire and consecutive registration
periods following the notification of the present decision.
52. For the sake of completeness, the Chamber recalled that in accordance with article 24 par. 3 lit. a)
of the Regulations, the consequences for failure to pay relevant amounts in due time may be
excluded where the Football Tribunal has imposed a sporting sanction on the basis of article 17 in
the same case. Consequently, the Chamber confirmed that the consequences for failure to pay
relevant amounts in due time envisaged by art. 24 of the Regulations were excluded in the present
matter, and that should the Respondent fail to timely comply with this decision, it would be for the
FIFA Disciplinary Committee to adopt the necessary measures in accordance with the FIFA
Disciplinary Code.
pg. 9
REF. FPSD-10992
d. Costs
53. 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.
54. 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.
55. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 10
REF. FPSD-10992
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Dennis Wanyoike, is partially accepted.
2.
The Respondent, Fountain Gate FC, must pay to the Claimant the following amount(s):
- TZS 3,220,000 as outstanding remuneration plus 5% interest p.a. as from the respective
due dates as follows:
-
On the amount of TZS 460,000 as from 1 September 2022
On the amount of TZS 460,000 as from 1 October 2022
On the amount of TZS 460,000 as from 1 November 2022
On the amount of TZS 460,000 as from 1 December 2022
On the amount of TZS 460,000 as from 1 January 2023
On the amount of TZS 460,000 as from 1 February 2023
On the amount of TZS 460,000 as from 1 March 2023
- TZS 6,900,000 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 6 March 2023 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.
The Respondent shall be banned from registering any new players, either
nationally or internationally, for the next two entire and consecutive registration periods
following the notification of the present decision.
6.
If full payment (including all applicable interest) is not made within 30 days of
notification of this decision, the present matter shall be submitted, upon request of
the Claimant, to the FIFA Disciplinary Committee.
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 11
REF. FPSD-10992
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. 12