FIFA - Decisión disputa Msengi 21062023

REF. FPSD-9710

Decision of the Dispute Resolution Chamber passed on 21 June 2023 regarding an employment-related dispute concerning the player Ally Hussein Msengi BY: Michele COLUCCI (Italy)

CLAIMANT:

Ally Hussein Msengi, Tanzania

RESPONDENT:

FC Swallows, South Africa pg. 2

REF. FPSD-9710

I. Facts of the case

1. On 15 July 2022, the player Ally Hussein Msengi and FC Swallows concluded an employment contract valid as from the date of signature until 30 June 2024.

2. Accordingly, the player was entitled to the following: - ZAR 50,000 gross per month between 1 July 2022 until 30 June 2023; - ZAR 55,000 gross per month between 1 July 2023 until 30 June 2024;

3. Art. 18 of the contract established the following: “18. TERMINATION OF EMPLOYMENT Notwithstanding the fact that this is a fixed term contract, the Club may terminate this agreement by the giving of 1 (one) month's written notice (…)

4. According to the player, in August 2022, the club’s team manager informed him that the club did not apply for his work permit.

5. Also according to the player, on 11 January 2023, the club verbally and in writing instructed him to no longer attend training.

6. The club served a transfer ban for the execution of a monetary decision (FPSD-3183) between 29 June 2022 until 27 January 2023).

7. On 23 January 2023, the club sent a proposal to mutually terminate the contract, and

presented the following document: “Dear Ally, I the undersigned hereby inform you that, due to the fact that you are not part of the Coaching department's plan for the current season, you are advised that the club would like to meet with

you to discuss its proposal to terminate your Fixed Term Employment Contract signed with the club on the 15th July 2022. You are therefore requested to avail yourself for a meeting (…)”

8. On 30 January 2023, the legal representative of the player sent a correspondence indicating that the player was informed that he was not registered due to a registration ban imposed on the club, and granted a deadline until 31 January 2023 in order to be registered.

9. On 13 February 2023, the player sent a termination letter referring to its previous letter, indicating in addition that he has not been allowed to train for more than two weeks, as well as that the club refused to register him.

10. The player confirmed that he subsequently remained unemployed. pg. 3

REF. FPSD-9710

II. Proceedings before FIFA

a. Position of the Claimant

11. On 23 March 2023, the player lodged a claim before the FIFA Football Tribunal for breach of contract without just cause and requested the payment of ZAR 800,000 plus 5% interest p.a. as from 13 February 2023, detailed as follows: - ZAR 200,000 for the rest of the season 2022/2023 (50,0004, March to June 2023); - ZAR 600,000 for the 2023/2024 season.

12. The player underlined that the employment contract does not make provision for any specific method to calculate contractual damages.

b. Position of the Respondent 13. 13. Despite being invited to do so, the Respondent failed to reply to the claim. pg. 4

REF. FPSD-9710

III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

1. First of all, the Single Judge of the Dispute Resolution Chamber (DRC) (hereinafter also referred to as Single Judge or Judge) analysed whether he was competent to deal with the

case at hand. In this respect, he took note that the present matter was presented to FIFA on 23 March 2023 and submitted for decision on 21 June 2023. Taking into account the wording of art. 34 of the March 2023 edition of the Procedural Rules Governing the Football Tribunal (hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.

2. Subsequently, the Single Judge referred to art. 2 par. 1 of the Procedural Rules and observed that in accordance with art. 23 par. 1 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (March 2023 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 Tanzania and a club from South Africa.

3. Subsequently, the Single Judge analysed which regulations should be applicable as to the substance of the matter. In this respect, he confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (March 2023 edition), and considering that the present claim was lodged on 23 March 2023, the March 2023 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

b. Burden of proof

4. The Single Judge recalled the basic principle of burden of proof, as stipulated in art. 13 par. 5 of the Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof. Likewise, the Single Judge stressed the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which it may consider evidence not filed by the parties, including without limitation the evidence generated by or within the Transfer Matching System (TMS).

c. Merits of the dispute

5. His competence and the applicable regulations having been established, the Single Judge entered into the merits of the dispute. In this respect, the Single Judge started by acknowledging all the above-mentioned facts as well as the arguments and the pg. 5

REF. FPSD-9710 documentation on file. However, the Single Judge emphasised that in the following considerations he will refer only to the facts, arguments and documentary evidence, which it considered pertinent for the assessment of the matter at hand.

1. Main legal discussion and considerations

6. First of all, the Judge considered the factual background of the case and noted that the parties concluded and employment contract on 15 July 2022 with a period of validity as from the date of signature until 30 June 2024.

7. At the same time, the Judge took well note that club had been serving a transfer ban from 29 June 2022 until 27 January 2023 (ID:3277 Ref: FDD-11976 – FPSD-3183), i.e. during the period of validity of the contract concluded between the parties.

8. Subsequently, the Judge observed that the player lodged a claim for breach of contract without just cause, noting that, on 13 February 2023, he unilaterally terminated the contract due to his non-registration.

9. On the other hand, the Judge also observed that the club did not provide any response to the player's claim. In this respect, the Judge referred to art. 21 of the Procedural Rules, which establish that "If the respondent(s) fail(s) to submit a response to the claim within the time limit, a decision will be made based on the file."

10. Therefore, the Judge understood that the legal issue at stake primarily consists of assessing whether the player had a just cause to terminate the contract due to his non-registration.

The Judge underlined, in particular, that the club signed a contract with the player while serving a transfer ban.

11. In this respect, the Judge referred to the longstanding jurisprudence of the FIFA Football

Tribunal which clarifies that when a club refuses to register a player, it effectively denies the player the opportunity to participate in competitions and violates one of his fundamental rights as a football player.

12. In considering the club's actions, the Judge also considered the club's lack of due diligence in entering into a contract with the player during the period of a transfer ban that was duly imposed in accordance with the applicable regulations. Despite being aware of the transfer ban imposed upon them, the club proceeded to conclude a contract with the player. This demonstrated a clear disregard for the club's duty to exercise reasonable care and diligence in their contractual dealings.

13. In addition, and as to his non-registration, the Judge also noted that that the player cannot be held liable for the club's transfer ban. The transfer ban imposed upon the club was a result of its own actions, and the player cannot bear the consequences of the disciplinary situation of the club. pg. 6

REF. FPSD-9710

14. Based on these considerations, the Judge concluded that the club's actions amounted to a breach of contract without just cause. As a result, the player had a just cause to terminate the contract on 13 February 2023, and he is therefore entitled to compensation. ii. Consequences

15. Having stated the above, the Judge turned their attention to the question of the consequences of such unjustified breach of contract committed by the Respondent. In particular, the Judge turned to the calculation of the amount of compensation payable to the player by the club in the case at stake. In doing so, the Judge firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the amount of compensation shall be calculated, in particular and unless otherwise provided for in the contract at the basis of the dispute, with due consideration for the law of the country concerned, the specificity of sport and further objective criteria, including in particular, the remuneration and other

benefits due to the player under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, and depending on whether the contractual breach falls within the protected period.

16. In application of the relevant provision, the Judge held that it first of all had to clarify as to whether the pertinent employment contract contained a provision by means of which the parties had beforehand agreed upon an amount of compensation payable by the contractual parties in the event of breach of contract. In this regard, the Judge established that no such compensation clause was included in the employment contract at the basis of the matter at stake.

17. As a consequence, the Judge determined that the amount of compensation payable by the club to the player had to be assessed in application of the other parameters set out in art. 17 par. 1 of the Regulations. The Judge recalled that said provision provides for a nonexhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable.

18. Bearing in mind the foregoing as well as the claim of the player, the Judge proceeded with the calculation of the monies payable to the player under the terms of the contract from the date of its unilateral termination until its end date. In particular, the Judge observed that the player would be paid as follows: From March 2023 until 30 June 2024, the player would have been paid as follows: - ZAR 200,000 for the rest of the season 2022/2023 (50,0004, March to June 2023); - ZAR 600,000 for the 2023/2024 season. - Total: ZAR 800,000 pg. 7

REF. FPSD-9710

19. Consequently, the Judge concluded that the amount of ZAR 800,000, as detailed above, serves as the basis for the determination of the amount of compensation for breach of contract.

20. In continuation, the Judge verified as to whether the player had signed an employment

contract with another club during the relevant period of time, by means of which he would have been enabled to reduce his loss of income. According to the constant practice of the DRC as well as art. 17 par. 1 lit. ii) of the Regulations, such remuneration under a new employment contract shall be taken into account in the calculation of the amount of compensation for breach of contract in connection with the player’s general obligation to mitigate his damages.

21. In this respect, the Judge observed that the player remained unemployed.

22. Lastly, taking into consideration the player’s request as well as the constant practice of the Football Tribunal in this regard, the Judge decided to award the player interest on said compensation at the rate of 5% p.a. as of 13 February 2023 (when the contract was terminated) until the date of effective payment. iii. Compliance with monetary decisions

23. Finally, taking into account the applicable Regulations, the Judge referred to art. 24 par. 1 and 2 of the Regulations, which stipulate that, with its decision, the pertinent FIFA deciding body shall also rule on the consequences deriving from the failure of the concerned party to pay the relevant amounts of outstanding remuneration and/or compensation in due time.

24. In this regard the Judge highlighted that, against clubs, the consequence of the failure to pay the relevant amounts in due time shall consist of a ban from registering any new players, either nationally or internationally, up until the due amounts are paid. The overall maximum duration of the registration ban shall be of up to three entire and consecutive registration periods.

25. Therefore, bearing in mind the above, the Judge decided that the Respondent must pay the full amount due (including all applicable interest) to the Claimant within 45 days of notification of the decision, failing which, at the request of the Claimant, a ban from registering any new players, either nationally or internationally, for the maximum duration of three entire and consecutive registration periods shall become immediately effective on

the Respondent in accordance with art. 24 par. 2, 4, and 7 of the Regulations.

26. 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 available in the FIFA Legal Portal. pg. 8

REF. FPSD-9710

27. The Judge recalled that the above-mentioned ban will be lifted immediately and prior to its complete serving upon payment of the due amounts, in accordance with art. 24 par. 8 of the Regulations.

d. Costs

28. The Judge 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.

29. Likewise, and for the sake of completeness, the Judge recalled the contents of art. 25 par. 8 of the Procedural Rules, and decided that no procedural compensation shall be awarded in these proceedings.

30. Lastly, the Judge concluded his deliberations by rejecting any other requests for relief made by any of the parties. pg. 9

REF. FPSD-9710

IV. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Ally Hussein Msengi, is accepted.

2. The Respondent, FC Swallows, must pay to the Claimant the amount of ZAR 800,000 as compensation for breach of contract without just cause plus 5% interest p.a. as from 13 February 2023 until the date of effective payment.

3. Full payment (including all applicable interest) shall be made to the bank account indicated in the Bank Account Registration Form as available in the FIFA Legal Portal.

4. 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.

5. 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.

6. This decision is rendered without costs.

For the Football Tribunal: Emilio García Silvero Chief Legal & Compliance Officer pg. 10

REF. FPSD-9710

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 | psdfifa@fifa.org | T: +41 (0)43 222 7777 pg. 11