[2023] KESDT 392 (KLR)

Ayisi v Gor Mahia Football Club (Appeal E004 of 2023) [2023] KESDT 392 (KLR) (Commercial and Tax) (8 August 2023) (Decision)

Neutral citation: [2023] KESDT 392 (KLR)

Republic of Kenya

In the Sports Disputes Tribunal

Commercial and Tax

Appeal E004 of 2023

E.Sifuna-Shiveka, Chair, E. G. Kiplagat & Peter Ochieng, Members

August 8, 2023

Between

Clifford Miheso Ayisi

Claimant

and

Gor Mahia Football Club

Respondent

Decision

1. The Claimant filed a claim dated February 02, 2023 claiming that he was employed by the Respondent club on August 09, 2019 vide a contract as a football player at a gross monthly salary of Kshs 150,000 exclusive of other allowances.

2. The Claimant avers that upon joining the Respondent Club he carried out his duties as required by the contract and FIFA football laws. In particular, he took part in all games that he was called upon to play and attended training sessions as scheduled.

3. The claimant avers that his salary was payable monthly and he did not consent to his salaries being withheld by the Respondent whose actions is in breach of Clause 8 of the Player Agreement Contract dated August 09, 2019.

4. The claimant further avers that the contract required the Respondent to pay him Kshs 1,500,000 as signing fee in three equal monthly instalments on August 15, 2019,September 15, 2019 and October 15, 2019. The contract also required payment of base allowance of Kshs 300 per day and Kshs 5,000 allowance for winning a game.

5. The claimant contends that all these dues have not been paid and which makes a cumulatively total of Kshs 2,225,500 together with interest at the rate of 14. 5% from July 2021. This, he noted was in total breach of Article 12bis of the FIFA football laws, Article 41 of the constitution of Kenya and the Employment Act.

6. The claimant prayed for the following remedies:a.Judgment against the Respondent for a sum of Kshs. 2,225,500. b.Compensation for unfair labour practices.c.Interests on (a) above from July,2021 until payment in full.d.Costs of this suit.e.Any other relief that this tribunal may deem appropriate to grant.

The Response 7. The Respondent filed a memorandum of response and a preliminary objection both dated April 17, 2023 against the claim. The grounds of the preliminary objection are:a.That the Tribunal lacks jurisdiction to hear the entire claim on account of the provisions of section 90 of the Employment Act,2007. b.That the claim for signing bonus is time-barred having been brought before this tribunal after over three years since it became due and payable.c.That the claim for unpaid salaries for October 2020 to July 2021 amount to continuing injuries and are consequently time-barred as they have been brought before this tribunal over one year since the cause of action accrued.d.That the claim for unpaid winning allowances for the 2019/2020 and 2020/2021 seasons amount to continuing injuries and are consequently time-barred as they have been brought before this tribunal over one year since the cause of action accrued.t

8. However, the Tribunal heard the objection and dismissed it via a ruling delivered on May 23, 2023.

9. In the memorandum of response the Respondent claimed that the claimant is an ex-employee of the Respondent having been employed on August 09/08/2019 earning a gross monthly salary of Kshs.150,000 exclusive of other allowances.

10. The Respondent noted that it was a term of his employment that he would receive a signing bonus of Kshs.1,500,000 in the following instalments:a.Kshs.500,000 on or before August 15, 2019b.Kshs.500,000 on or before September 15, 2019. c.Kshs.500,00 on or before October 15, 2019.

11. The Respondent avers that the Claimant was paid his signing bonus including his base allowance, training allowance and a winning allowance all of which were paid to him and the Claimant is put to strict proof.

12. The Respondent avers that the claim for allowances between August 9, 2019 and April 30, 2020 and October 2020 to July 2021 is unwarranted as the FKF Premier League had been suspended on account of the Covid-19 pandemic and there were no ongoing games in the league in order for the Claimant to be entitled to any allowances as claimed.

13. The Respondent relied on press statements from FKF showing League Suspension notices dated March 13, 2020 and March 262021.

14. The Respondent also avers that the said allowances payable to its employees are facilitative allowances intended to facilitate the performance of their work and as the Claimant was not playing during the Covid-19 pandemic then the same is not payable.

15. The Respondent further submits that the said allowances are “continuing injuries” and pursuant to section 90 of the Employment Act ought to have been filed by July 2022 as they allegedly accrued in July 2021 as per the Statement of Claim.

16. The Respondent further submits that the entire claim is denied in particular the Respondent denies that the Claimant is entitled to interest at 14. 5 at all from July 2021 as there is no legal or factual basis for any such payment.

17. The Respondent for the reasons stated prays that the suit be dismissed with costs.

Hearing 18. The matter proceeded by way of written submissions. The Claimant relied on written submissions dated July 22, 2023 while the Respondent relied on the memorandum of response together with the embedded written submissions dated April 17, 2023.

Discussion 19. Having taken into account the parties’ pleadings and written submissions, the Tribunal opines as follows:

20. The jurisdiction of this Tribunal stems from Section 58 of the Sports Act which provides as follows:“The Tribunal shall determine—a.appeals against decisions made by national sports organizations or umbrella national sports organizations, whose rules specifically allow for appeals to be made to the Tribunal in relation to that issue including —i.appeals against disciplinary decisions;ii.appeals against not being selected for a Kenyan team or squad;b.other sports-related disputes that all parties to the dispute agree to refer to the Tribunal and that the Tribunal agrees to hear; and(c)appeals from decisions of the Registrar under this Act.”

21. Section 59 of the Sports Act states further that:“The Tribunal may, in determining disputes apply alternative dispute resolution methods for sports disputes and provide expertise and assistance regarding alternative dispute resolution to the parties to a dispute.”

22. As noted in this Tribunal’s ruling on the preliminary object dated March 31, 2023,the present dispute stems from a contract dated 09/08/2019 entered between the Claimant and the Respondent. This being a claim arising from a football player who had been contracted by a football club we find that the dispute falls within the definition of section 58(b) as “other sports related disputes “as determined by this Tribunal in Dennis Kadito v. Sofapaka FC(SDT Appeal No.23 of 2016 and in Mwinyi Kibwana Shami v. KCB FC (SDT No.22 of 2019).

23. The parties by their implied conduct invoked the Tribunal’s jurisdiction under section 58(b) and the Tribunal has acceded to this request. The three pronged processes to be fulfilled as exemplified by the Kadito case (supra) that the dispute has to be sports related and that all parties must agree to refer it to the Tribunal and the Tribunal must agree to hear have all been met. The dispute being a contractual one between the parties by all accounts falls within the latitudes of, “other related disputes.” We therefore find that we have jurisdiction to determine this matter.

24. It is also our considered opinion that this being a sports related dispute section 90 of the Employment Act stricto sensu cannot be applied in these proceedings as the claim is not an employment dispute as contemplated under the Employment Act.Therefore,the contested dates as to when the causes of action arose and whether this is a continuing injury or not and the limitations thereof is immaterial to us.

25. We have also looked at the contract entered on August 9,2019 between the parties and noted that the Claimant was entitled to a monthly salary of Kshs.150,000,signing fee of Kshs.1,500,000 and three separate payment instalments of Kshs500,000 as per clause 8 of the contract as well as winning allowances of Kshs.5,000 as per the clause 9 and a base allowance of Kshs.300.

26. We note that even though the Respondent claim to have paid all the money and allowances owned to the Claimant under the contract the Respondent never provided any evidence to support this assertion. Secondly, the claim that the Covid-19 pandemic affected the fulfilment of the contract on the part of the Respondent cannot be entertained as they have not cited any provision of the contract they relied on. The press statements from FKF showing League Suspension notices dated March 13, 2020 and March 26, 2021 are certainly not documents that were part of the contract between the parties and their utility here is to say the least, diminished.

27. Moreover, some payments like the training, signing fee and winning allowances remain outstanding since 2019. This is way before the Covid-19 pandemic hit the country. We find the Respondent’s conduct cavalier and the reasons advanced for not honouring its contractual obligations more of a smokescreen and an opportunity to deny the Claimant his rightful dues without lawful cause. Indeed, we are convinced that the Claimant has made a case that warrants our intervention.

Conclusion 28. It is therefore in consideration of this, as well as the parties’ submissions that the Tribunal makes the following orders:a.Judgment against the Respondent for a sum of Kshs.2,225,500;b.Interest on (a) at court rates from the date of this decision;c.The Claimant shall have the costs of the suit.

DATED AT NAIROBI THIS 8TH DAY OF _AUGUST,________________________________MRS. ELYNAH SIFUNA-SHIVEKA, PANEL CHAIRPERSON_________________\MR. GICHURU KIPLAGAT, MEMBER MR. PETER OCHIENG, MEMBER