[2022] KESDT 671 (KLR)

Ndungu v AFC Leopards Sports Club (Tribunal Case E005 of 2022) [2022] KESDT 671 (KLR) (Civ) (5 July 2022) (Decision)

Neutral citation: [2022] KESDT 671 (KLR)

Republic of Kenya

In the Sports Disputes Tribunal

Civil

Tribunal Case E005 of 2022

J Njeri Onyango, Chair, Peter Ochieng & E. G. Kiplagat, Members

July 5, 2022

Between

Samuel Githure Ndungu

Claimant

and

Afc Leopards Sports Club

Respondent

Decision

Definitions 1. 2.1. Management – whole or part of the National Executive Committee (NEC) of AFC Leopards SC as defined in the club’s constitution and the Chief Executive Officer.

2. 2.2. Just cause – any reason considered justified, valid and legal under football rules

3. 2.3. FKF- The Federation of Kenya Football

4. 2.4. CAF- Confederation of African Football

5. 2.5. FIFA- World football governing body

6. 2.6. Technical Bench- all employees of the club other than the players who have a direct responsibility towards the technics and ability of players discharging their roles and includes the coach, assistant coach (es) goalkeeper trainer (s) team doctor (s) and such staff as maybe determined from time to time.

7. 2.7. Team- all the employees of the club including players, technical bench and other support staff

8. 2.8. KPL- Kenya Premier Company Ltd

9. 2.9. Football Tribunals – the disciplinary and dispute resolution tribunals and forums contemplated in the football rules

10. 2.10. Employment Act – Basic conditions of Employment Act, (Act No.11 of 2007) Laws of Kenya as amended from time to time

11. 2.11. Player- the football player that enters into this contract

12. 2.12. Football rules- theconstitution, statutes, rules and regulations of the KPL, FKF, CAF and/orFIFA as amended from time to time

The Parties 13. The claimant is described as an adult of sound mind residing and working for gain in Kenya. He is a professional football player (hereinafter the claimant.

14. The respondent is a football club (hereinafter the respondent) established in the Republic of Kenya and recognized under the provisions of the Sports Act 2013 which is also affiliated to the Football Kenya Federation (FKF)

Jurisdiction 15. The Sports Disputes Tribunal jurisdiction has been invoked by the claimant under Section 58 and 59 of the Sports Act No 25 of 2013 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.”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.”

Applicable Laws 16. The following laws are applicable to this decision;a.TheConstitution of Kenya 2010b.The Law of Contract Act Cap 23 laws of Kenyac.The Employment Act Cap 226 Laws of Kenyad.The FIFA Regulations on the Status and Transfer of Players

Background 17. The claimant filed his statement of claim on February 8, 2022. The same is dated August 3, 2021. He also filed the followingi.A list of witnessesii.List of documents- with copies of the listed documentsiii.Witness statements by himself

18. The claimant’s position is that he entered into a written employment contract with the respondent dated January 9, 2017. It was a 2-year contract to provide professional football services as a player for the respondent. The respondent contrary to the contract unilaterally terminated the said contract by a letter dated November 30, 2017. The respondent did not assign any reasons for such termination.

19. The matter was placed before the chairperson of the Sports Disputes Tribunal (SDT) who on February 9, 2022 made the following directions1. The claimant is hereby directed to serve the respondent with the statement of response together with these directions within five (5) days of receipt of these directions;2. The respondent to file and serve upon the claimant its statement of response within fourteen days (14) days of service upon it of the statement of claim.3. The claimant to file and serve upon the respondent his reply to the response, if any, within seven (7) days of service of the statement of response;4. The matter will be listed for mention on the March 15, 2022 at 2. 30pm via Microsoft Teams or such other medium as the Tribunal shall determine confirm compliance with the present directions and set a date for hearing of the matter;5. The panel to hear the matter shall comprise ofi.Mrs Elynah Shiveka - Presidingii.Mrs Njeri Onyango- Memberiii.Mr Gabriel Ouko- Member

20. The hearing proceeded on April 27, 2022. The same was held virtually via Microsoft Teams. The applicant was in attendance together with his counsel. There was no appearance for the respondent. The matter therefore proceeded in the absence of the respondent.

21. The claimant at the hearing elected to adopt the written witness statement filed together with his statement of claim. He confirmed that his services were terminated. He then joined Mathare Football Club after the release letter was issued to him in January 2018. His salary was Kshs 50,000/=. He played for Mathare until November 2019. In 2020 he joined Kakamega Homeboyz.

22. Upon closing the claimant’s case the panel directed the claimant’s counsel to file written submissions. The submissions were filed on May 18, 2022.

Claimant’s Case 23. By the statement of claim filed on February 8, 2022 the claimant stated that on January 9, 2017, the claimant and the respondent entered into a contract of employment for a period of 2 years (hereinafter the contract). The claimant under the contract would provide services as a professional football player, the basic terms werea.The contract with the respondent was with effective (sic) for 24 months from the January 1, 2017 to the December 31, 2019;b.The claimant was entitled to a monthly salary ofKshs 65,000/=c.The claimant was entitled to signing on fee of Kshs 300,000/= payable by the January 25, 2017;d.The parties had no option of terminating the contract by issuing a one month’s notice or payment of the equivalent of a one month’s salary in lieu thereof.

24. According to the claimant, six months into the contract, the respondent on November 30, 2017 through its Chief Executive Officer issued the claimant a letter terminating the contract between the parties.

25. It is the claimant’s position that the termination of the contract was in breach of the terms of the contract itself and also violated the provisions of the Employment Act 2007 and FIFARegulations on the Status and Transfer of Players which govern the contracts of Football players in Kenya. The claimant sets out the particulars of breach as followsa.The purported termination of contract was done during the continuance of the Kenya Premier League Competition season and with a substantial part of the term of the contracts still remaining contrary to Articles 13 and 16 of theFIFA Regulations on the Status and Transfer of Players which requires that a contract between a professional and a club only be terminated upon expiry of the term of the contract or by mutual agreement.b.The purported termination of the contracts was so done without any or any just cause, contrary to article 14 of the FIFA Regulations on the Status and Transfer of Players;c.The respondent failed to comply with the provisions of the contract which defined what constitutes fair procedure in instances where it is necessary to institute disciplinary processes against a player and in the process denied the claimants any opportunity to be heard.d.The Respondent failed to pay the claimant’s dues, including the signing on fee, contrary to Clause 4. 1 of the contract and thereby breached the provision of Article 12bis Paragraph 1 of the FIFA Regulations on the Status and Transfer of Players, which obligates a club to comply with their financial obligations towards players as per the terms stipulated in the contract signed with their players and in the transfer agreements;

26. The claimant further raises issue with the respondent for withholding his letter of release from the date of termination until January 5, 2018 which made him not secure alternative employment as a professional football player as FIFA Regulations demand that a release letter be availed before a player switches clubs.

27. The claimant specifically pleaded that by terminating his contract as it did, the respondent violated the provisions of Articles 12 bis, 13, 14 and 16 of the FIFA Regulations on the status and Transfer of players as well as Sections 17 and 41 of the Employment Act 2007 , as well as the specific clauses of the contract.

28. The claimant seeks compensation for breach of the contract and seeks payment for the unexpired term of his contract as followsNumberParticularsAmountClaimed(In Kshs)Payment of one month’s salary in lieu of notice65,000Damages equivalent to twelve months’ salary in view of the inconvenience caused to the claimant780,000. 00Payment of compensation being the equivalent of the total salaries of the uncompleted period of the contract being 13 months845,000The unpaid signing on fee300,000Total1,990,000. 00

28. The claimant therefore sets out the following prayersa.A declaration that the purported termination of the claimant’s contracts by the respondent was unfair and illegal;b.Awards of monetary compensation to the claimant and against the respondent for the sum of Kshs 1,990,000/= as particularized in paragraph 8 of this claimc.Costs of this claimd.Interests on (b) and (c) at the such rates as the committee may decide in the event of default of payment by the respondent

Respondent’s Case 29. The respondent did not file any response to the statement of claim. The panel based on the affidavit of service availed, was satisfied that the respondent had been duly served with the claim documents and directions issued by the Tribunal through its available and know email address.

Claimant’s Evidence 30. The claimant supported his claim with a list of documents as filed on February 8, 2022 together with the claim. Those documents are1. The contract between the claimant and the respondent dated January 9, 2017. 2.The claimant’s FKF Player ID Number /Registration.3. A copy of the letter of termination dated November 30, 20174. A copy of the release letter dated January 5, 20185. A copy of the letter of demand dated June 19, 20186. A copy of claim filed with the FKFPlayer Status Committee7. A copy of email screenshot dated October 21, 20218. Any other documents will be adduced with leave of the tribunal

31. The claimant also filed a witness statement dated August 3, 2021. The statement was at the hearing hereof on April 14, 2022 adopted as the claimants evidence in chief. The documents filed were also produced as exhibits in this matter.

32. By way of further evidence the claimant testified that he had discharged his obligations under the contract to his best ability. There had been no complaints from the respondent regarding his performance he confirmed that he is currently a player of Kenya Police Football Club from January 2021 at a salary of Kshs 30,000/=.

33. The claimant also stated that after leaving the respondent and upon receipt of the letter of release in January 2018, he joined Mathare Football Club at a salary ofKshs 50,000/=. He left Mathare in November 2019. In 2020 he briefly played for Kakamega Homeboyz for 3 months.

Respondent’s Evidence 34. The respondent though served did not file any responses or provide a witness statement. The respondent was also not represented at the hearing and did not therefore present any evidence or challenge the claimant’s testimony.

Claimant’s Submissions 35. The claimant’s counsel filed written submissions on May 18, 2022. According to the claimant, the issues for determination area.Whether the claimant was contracted to the respondentb.Whether due process was followed in the claimant’s terminationc.Whether the claimant is entitled to damages sought in in the statement of claim dated February 2, 2022

36. The claimant places reliance on the fact that there was a contract between the parties, which was terminated. It is his position that the contract was terminated unlawfully as no reason was assigned for the same. He also faults the fact the contract was terminated mid-season which is contrary to FIFA Regulations“Respect of contractA contract between a professional and a club may only be terminated upon expiry of the term of the contract or by mutual agreement.”

37. The claimant’s submissions also refer to Articles 16 bis which bars termination through a season and Article 12 bis which regulates clubs against withholding of players salary as the claimant states he was owed salary arrears, non-paid sign on fees due as at the time of termination of contract and the 1 month salary in lieu of notice.

38. According to the claimant, unfair termination is proved when “the employer is unable to prove the reason for termination” or show that the reason for termination is fair or valid or done according to fair procedures. In this instance, the claimant says he was not given any reason nor a hearing contrary to Article 47 of theConstitution of Kenya .

39. Placing reliance on the Decision of the Court of Appeal in Kenya Broadcasting Corporation vs Geoffrey Wakio[2017] eKLR the claimant submits that the Court of Appeal has concurrently held that the compensation of unfair termination an employee would be entitled to twelve (12) months salary besides any other relief the court/ statutes provide.

40. The claimants counsel at paragraphs 26, 27 and 28 of the submissions states that26. The fact that the claimant was terminated without notice and in the middle of the KPL season presented with it challenges in obtaining an alternative club for employment. Further, the claimant could not get reasonable training facilities to keep up his shape in anticipation for his next employment venture owing to the rigorous exercises and fitness levels required of his profession before getting employment. The claimant ended up losing track of his as he could not get a top flight club for his career progression.27The same is aggravated due to the timing of his termination. It is a fact thatbefore players can sign for a new team, they must undergo medical tests before signing new contracts. A physically unfit player struggles to obtain employment in the otherwise highly competitive football industry.28The respondent’s actions of terminating the claimant mid-season had the effect of killing the then budding career of the claimant by rendering him unemployed for over a month during which he could not train at top level or even get alternative employment owing to FKF and FIFA rules against registering of professional football players during the pendency of a football season.

41. The submissions further urges the panel at paragraph 30 that in assessing the requirements of Section 49 (u) of the Employment Act on unfair termination, to consider the facts including that:-“the opportunities available to the employee for securing comparable or suitable employment with another employer, the circumstances in which the termination took place, including the extent, if any, to which the employee caused or contributed to the termination, any compensation, including ex gratia payment, in respect of termination of employment paid by the employer and received by the employee among many others.”

42. The submissions also put reliance on the provisions of Article 17 (1) (i) of the FIFA Regulations on the Status and Transfer of Players that“A player whose contract has been unfairly terminated is entitled to the residual contractual sum he would have been paid has the contract been allowed to run to its logical conclusion.”

43. The submissions have put reliance on various CAS decisions includingi.Ascoli Calcio SpA v Papa Waigo N’diaye (2012), the apex sports court heldinter alia;“In all cases, the party in breach shall pay compensation. Subject to the provisions of article 20 and Annex 4 in relation to training compensation, and unless otherwise provided for in the contract, compensation for the breach shall be calculated with due consideration for the law of the country concerned, the specificity of sport, and any other objective criteria. These criteria shall include, 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, the fees and expenses paid or incurred by the former club (amortised over the term of the contract) and whether the contractual breach falls within a protected period.”ii.FC Karpaty v Leonid Kovel & FC Dinamo Minsk (CAS 2014/A/3491)“In respect of the calculation of compensation in accordance with article 17 (1) of the FIFA Regulations and the application of the principle of “positive interest.”, the panel follows the framework as set out by a previous CAS panel, establishing the damage suffered by the injured party, taking in consideration the circumstances of the single case, the arguments raised by the parties and the evidence produced. As it is the compensation for the breach or the unjustified termination of a valid contract, the judging authority shall be led by the principle of the so called positive interest (or “expectation interest”), i.e. it will aim at determining an amount which shall basically put the injured party in the position that the same party would have had if the contract was performed properly, without such contractual violation to occur. The fact that the judging authority when establishing the amount of compensation due has a considerable scope of discretion has been accepted both in doctrine and in jurisprudence. The principle of the “positive interest” shall apply not only in the event of an unjustified termination or a breach by a player, but also when the party in breach is the club. The judging authority will have to apply the same degree of diligent and transparent review of all the objective criteria, including the specificity of sport, as foreseen in art.17 FIFA Regulations.”

44. The claimant therefore submits that based on the circumstances of his termination the panel should award him a sum of Kshs 1,990,000/=

Analysis and Determination 45. The panel having read the claimant’s pleadings, the documents produced, the witness statement and having heard the claimant as well as read the claimant’s written submissions, determines that the issues for determination are:-i.Whether the tribunal has jurisdiction to hear and determine this case?Depending on the outcome of (i) above:-ii.Whether termination of the claimant’s contract was unfair or unlawful?iii.Depending on the determination on the issue above, what is the appropriate award to the claimant?

i.Whether the Tribunal has Jurisdiction to hear and determine this case 46. The jurisdiction of this tribunal stems from section 58 of the Sports Act which provides as follows:“The Tribunal shall determine—c.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 —iii.appeals against disciplinary decisions;iv.appeals against not being selected for a Kenyan team or squad;d.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.”

47. 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.”

48. The current dispute stems from a contract dated January 9, 2017 entered between the claimant and the respondent. The claimant is unhappy because the respondent terminated this contract allegedly without lawful cause.

49. The Claimant claims that the termination was unfair, irregular and in complete contravention of Article 13 of FIFA Regulations on the Status and Transfer of Players. The claimant also relies on Sections 17,47 and 49 of the Employment Act.

50. 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”. However, section 58 (b) cannot be fully invoked if all parties in the dispute did not consent to the Tribunal’s jurisdiction and if the tribunal did not agree to hear the claim.

51. This was well explained by this Tribunal in Dennis Kadito v Sofapaka FC (SDT Appeal No 23 of 2016). The tribunal grappled with section 58 (b) of the Sports Act. This is what the Tribunal said:“As already stated in sports-related dispute such as this one the provision of section 58 (b) can only be satisfied where there is prior agreement to submit to the jurisdiction of this tribunal for example as a term of the contract or subsequent to the dispute the parties enter into a consent to submit themselves to the jurisdiction of the Tribunal. In the absence of any of these circumstances, the Tribunal cannot act without the protection of the law.”

52. Despite the fact that the respondent in Kadito above opted not to participate in the proceedings, the tribunal made a finding that it lacked jurisdiction to hear this matter as the parties did not consent to submit themselves to the jurisdiction of the tribunal as per section 58 (b). Secondly, the tribunal opined that jurisdiction under section 58 (b) can also be invoked if it is included as a term of the contract of employment by the parties. This is also not the case here.

53. Similarly, in Mwinyi Kibwana Shami v KCB FC SDT No 22 of 2019, the Tribunal arrived at the same outcome as the claimant did not consent to the Tribunal’s jurisdiction. The tribunal did not also find any clause in the contract invoking section 58 (b) of the Sports Act.

54. Clause 17 of the contract between the claimant and the respondent Provides:17. 2All disputes arising out of or relating to this contract, including disputes as to the meaning or interpretation of any provision of this contract or as to the carrying effect of any such provision or as to the termination or consequences of termination shall be at first instance be resolved through amicable settlement.17. 4if the parties are unable to resolve the same amicably within fourteen (14) of notification of the dispute, any party may refer to the dispute resolution in accordance with football rules and the mechanism that may be available provided.

55. Article 8 of the FKFconstitution provides as follows:“The bodies and officials of FKF must observe the Statutes, regulations, directives, decisions and Code of Ethics ofFIFA of CAF andFKF in their activities.Every person and organization involved in the game Association Football in FKF’s territory is obliged to observe the relevant Constitution, Regulations, decisions ofFKF and the principles of fair play as well as the principles of loyalty, integrity and sportsmanship.

56. We have scrutinized the contract and the relevant provisions including clause 17 and we are unable to find any provision that invokes the tribunal’s jurisdiction in terms of section 58 (b) of the Sports Act.

57. The question of jurisdiction was determined in the celebrated case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd (1989) KLR 1 where the Court stated that:-“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

58. John Bacroft Saunders in a treatise headedWords and Phrases Legally Defined-Volume 3: I-N the Author states at page 113 the following on the issue of jurisdiction:-“By jurisdiction is meant the authority which the court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the Statute, Charter or Commission under which the court is constituted, and may be extended or restricted by the like means. If no restrictions or limits is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the nature of actions and matters of which the particular court has cognizance or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exists. Where a court takes it upon itself to exercise a jurisdiction which it does not possess its decisions amounts to nothing. Jurisdiction must be acquired before Judgment is given.”

59. The Court of Appeal inPhoenix of EA Assurance Company Ltd v SM Thiga t/a Newspaper Services Ltd(2019) eKLR, observed that:-“It is a truism jurisdiction is everything and is what gives a court or tribunal the power, authority and legitimacy to entertain any matter before it. What is jurisdiction? In common English parlance, jurisdiction denotes the authority or power to hear and determine the judicial disputes or to even take cognizance of the same. This definition clearly shows that before a court can be seized of a matter, it must satisfy itself that it has authority to hear it and make a determination. If a court therefore proceeds to hear a dispute without jurisdiction, then the result will be a nullity ab initio and any determination made by such court will be amenable to being set aside ex debito justiciae.”

60. The claimant relies heavily on theFIFA Regulations for the status and Transfer of Players. Article 24 provides for a dispute resolution chamber. However, in the Shami case above the tribunal stated that:“FIFA is only competent to hear disputes between a club and player of an international dimension. As the dispute between the parties are of a local dimension, FIFA will not have the jurisdiction to hear and determine the dispute.” (Emphasis Ours).

61. The claimant plays for a local club and we found no material placed before us showing that he is a player of an international dimension so as to fall within the FIFA jurisdiction.

62. The claimant also relied on the Employment Act in his pleadings. However, section 90 of the Act states that:“Nothwistanding the provisions of section 4(1) of the Limitation of Actions Act, no civil action or proceedings based or arising out of this Act or contract of service in general shall lie or be instituted unless it is commenced within three years next after the act, neglect or default complained or in the case of continuing injury or damage within twelve months next after cessation thereof.”(Emphasis Ours).

63. The claimant filed this claim on February 8, 2022 yet the action arose on November 30, 2017. He moved this tribunal after a period of about four years and two months. The claimant certainly slept on his rights and was indolent. The tribunal therefore lacks legal basis to entertain this claim.

64. The Tribunal for the reasons stated finds that it has no jurisdiction to hear this claim in terms of section 58(b) of the Sports Act and section 90 of the Employment Act.

65. The Tribunal therefore finds it unnecessary and unable to answer issues (ii) and (iii) that it had framed for determination.

Conclusion 66. It is therefore in consideration of this, as well as the claimant’s submissions that the tribunal makes the following orders:a.The statement of claim dated on February 2, 2022 is struck out;b.Each party shall bear its own costs.

DATED AT NAIROBI THIS 5TH DAY OF JULY 2022Mrs. J Njeri Onyango, Panel ChairMr. Peter Ochieng, MemberMr. Gichuru Kiplagat , Member