[2024] KESDT 413 (KLR)

Oyioka v Bandari Football Club; Football Kenya Federation (Interested Party) (Tribunal Case E025 of 2023) [2024] KESDT 413 (KLR) (25 April 2024) (Decision)

Neutral citation: [2024] KESDT 413 (KLR)

Republic of Kenya

In the Sports Disputes Tribunal

Tribunal Case E025 of 2023

John M Ohaga, Chair, Peter Ochieng & Benard Murunga Wafula, Members

April 25, 2024

Between

Daglas Mokaya Oyioka

Claimant

and

Bandari Football Club

Respondent

and

Football Kenya Federation

Interested Party

Decision

The Parties 1. The Claimant is an adult of sound mind and an athlete playing professional football formerly employed by the Respondent.

2. The Respondent is a football club playing in the top tier league known as Football Kenya Federation Premier League and a member of the Interested Party.

3. The Interested Party is a national sports umbrella organization registered under the Sports Act and affiliated to FIFA, CAF & CECAFA to manage the sport of football in Kenya.

A. Factual Background 4. The Claimant was employed by the Respondent as a football player via a duly executed employment agreement dated 1st August 2022. The employment was for a period of three (3) years starting 1st August 2022.

5. On 7th July 2023, 11 months after the commencement of the employment relationship, the Respondent terminated the Claimant’s employment via termination letter of even date.

6. The Claimant, feeling aggrieved by the Respondent’s actions, instituted the present suit in a bid to obtain relief from the Tribunal as set out within the prayers encapsulated in his Statement of Claim.

B. The Case 7. The Claimant has approached this Tribunal by way of Statement of Claim dated 23rd August 2023 (‘the Claim) and filed on the same day. The Claimant requests the Honourable Tribunal to grant the following Orders:a.That the Respondent be compelled to pay Kshs. 81,000 to the Claimant being the payment of one (1) month salary in lieu of notice;b.That the Respondent be compelled to pay Kshs. 18,692. 00 to the Claimant as being unpaid salary for the six (6) days he worked in the month of July 2023;c.That the Respondent be compelled to pay Kshs. 2,021,885. 00 to the Claimant being compensation for premature termination of employment contract equivalent to the value of the unexpired term of the contract;d.That the costs of the suit be borne by the Respondent;e.That the Respondent be compelled to pay interest on prayers (a), (b), (c) and (d) at commercial rates from the date of the breach of the contract until payment in full;f.That the Interested Party be compelled to issue and enforce the sanction stipulated under Article 17 of the FIFA Regulations on the Status and transfer of players to wit the Respondent be banned from registering any new players, either nationally of internationally, for two (2) entire and consecutive registration periods.

8. The Respondent opposed the Claim in its entirety on the grounds that it lacked merit. It averred that the Claimant was not entitled to any of the reliefs sought as the termination of the Claimant’s employment was lawful, fair and just and that the Respondent fully complied with the terms of the employment contract entered between the parties. The Respondent further asserted that it elected to pay the Claimant one (1) month salary in lieu of notice and as such the Claim for payment in lieu of notice does not arise.

9. Additionally, the Respondent averred that it is under no duty whatsoever to employ the Claimant for the entire duration of the contract as that would be an infringement of the Respondent’s right to associate and dissociate as and when necessary, subject to the Employment Act and the employment contract which gives either party the right to terminate the agreement by giving one (1) month’s notice, which the Respondent exercised correctly and legally.

10. In conclusion, it was the Respondent’s averment that the Honourable Tribunal should find the Claim to be bad in law and be dismissed at the first instance.

C. Analysis and Determination 11. The Parties presented one witness each. The Claimant testified in support of his case while the Respondent called its Vice Chairman, Mr. Twaha Mbarak as its witness. The Panel has considered the evidence of both witnesses.

12. Having heard the evidence and reviewed the pleadings as well as studied the written submissions filed on behalf of the Parties, the Panel is of the view that the claim raises the following issues for determination:i.Whether the Respondent lawfully, fairly and justly terminated the contract of employment dated 1st August 2022;ii.Whether the Claimant is entitled to the reliefs as sought in the Statement of Claim;

i. Whether the Respondent lawfully, fairly and justly terminated the contract of employment dated 1st August 2022 13. The employment contract, as presented before the Tribunal under Clause 14 provides for the manner in which the contract may be terminated:14. 1Notwithstanding the fact that this is a fixed term contract, the parties may terminate this agreement by mutual consent.2. By either party issuing one (1) months' notice to the order for any just cause under football rules.3. By the player for sporting cause where he has played less than ten (10) percent of the matches in a season. Provided that the notice shall be given within fifteen (15) days of the last match of the season.4. Where the Player wishes to leave the club for another club locally without any just cause, the same shall be deemed to be a transfer between the clubs and attract a transfer fee as the parties shall negotiate but subject to a minimum transfer fee of Kenya Shillings_ (Kshs._) 14. 5 Where the player wishes to leave the club for another club internationally without any just cause, the Player/new club shall pay the Club an agreed transfer fee which parties shall duly negotiate.

14. It is clear that the employment contract titled ‘Contract ofEmployment forFootball Players’ is a standard contract drafted by the Club and having gaps that were completed in pen when specifying the player’s name and the various sums that were agreed upon.

15. The employment contract also lists various governing instruments under Clause 2. 2 titled ‘Definition’ and amongst the governing instruments that are anticipated include ‘football rules’ which encapsulate the following: the Constitution, statutes, rules and regulations of the KPL, FKF, CAF and/or FIFA as amended from time to time. Clause 2. 4 then provides for the Applicable Law as being ’the laws of the Republic of Kenya on contracts and employment…as well as football rules generally’.

16. Section 41 of the Employment Act gives the requirement of a notification and hearing before termination on grounds of misconduct. It requires that an employer shall, before terminating the employment of an employee, on the grounds of misconduct, poor performance or physical incapacity explain to the employee, in a language the employee understands, the reason for which the employer is considering termination and the employee shall be entitled to have another employee or a shop floor union representative of his choice present during this explanation.

17. Further, the said Employment Act provides that notwithstanding any other provision of that part of the Act, an employer shall, before terminating the employment of an employee or summarily dismissing an employee under section 44(3) or (4) hear and consider any representations which the employee may on the grounds of misconduct or poor performance, and the person, if any, chosen by the employee within subsection (1), make.

18. Section 45 of the Employment Act provides that a termination of employment by an employer is unfair if the employer fails to prove that the reason for the termination is valid, a fair reason and related to the employee’s conduct, capacity or compatibility or based on the operational requirements of the employer; and that the employment was terminated in accordance with fair procedure.

19. These requirements of the Employment Act on termination are consonant with the employment contract between the player and the Club which also anticipated the contract to serve its course save for various reasons. Clause 1. 4 of the contract of employment states that: The parties have agreed that this is fixed term contract is not terminable by the other save for a reason specifically recorded herein, incorporated by reference or set out in the football rules and then in accordance with this contract.

20. The Respondent having chosen to terminate the contract, it calls upon the Tribunal in assessing whether the termination of the Claimant was fair, to look both at the procedural and substantive fairness of the Claimant’s termination. In Freddy Kipkorir Lang’at v Co-operative University of Kenya [2021] eKLR, while citing the case of Walter Ogal Anuro v Teachers Service Commission, the Court held that ‘There is onus on the Respondent to have procedural fairness. In the said decision, Ndolo J. stated thus: - …. For a termination to pass the fairness test, it must be shown that there was not only substantive justification for the termination but also procedural fairness.’

21. The question of procedural fairness is provided under Section 41 of the Employment Act.

22. The same was also discussed by the court in John Jaoko Othino v Intrahealth International [2022] eKLR where the Court stated that; “As held by the Court of Appeal in the case of Postal Corporation of Kenya v K Tanui [2019] eKLR four elements must be discernible for the procedure to pass muster; an explanation of the grounds of termination in a language understood by the employee; the reason for which the employer is considering termination…. In my view, this element can be collapsed into three broad components; the information, hearing and consideration components.”

23. From the letter of termination of the Employment Contract, the Respondent failed to give reasons for the termination. The letter merely stated that the Respondent was terminating the contract pursuant to Clause 14. 2 of the Contract. However, during the hearing the Respondent’s witness testified to the effect that the Claimant had been terminated for poor performance. This effectively brings clause 14. 2 of the Contract into play.

24. Indeed, the Respondent’s witness made reference to a technical committee report which was the basis of the termination. The report was not made available to the Panel nor was the player involved in any way in the preparation of the report in the sense of being interviewed or being made aware that his performance was being reviewed.

25. The employment contract outlines the procedure for terminating a player on the grounds of poor performance. The Tribunal posits that poor performance in football contracts just like in other sporting contracts may be interpreted to refer to poor results arising for the player’s on field performances which may be as a result of other factors such as loss of form; having an injury; or generally lacking match fitness amongst other reasons.

26. It is for this reason that contracts require that any discretionary holding that a football player is having poor performance would need to be clearly noted; appropriate notification made to the player and remedial plans be put in place. Indeed, Clause 16 of the employment contract provides for the procedure where the club makes a determination of Poor Performance of a player.16. 1In the cases where the player does not perform to the expected standards, the club through the Technical Bench shall issue an oral warning of the same at first instance and use its internal means to help the player improve through counselling, instructions, guidance. The player shall be informed in person of such poor performance and a discussion held between the Player and technical bench on the appropriate method to improve the performance.16. 2The Executive Committee shall be issued with a report of such discussions and the improvement plan in place.16. 3.The failure to improve despite the above mentioned actions within three (3) months will result in a written warning and where there are additional cases of misconduct shall entitle the club to terminate the contract.16. 4.The club reserves the right to send the player on loan on continued poor performance or any other measures deemed appropriate.

27. There has been no evidence tabled by the Respondent showing that:a.An oral warning was issued.b.A discussion being held and consensus on the appropriate method to improve the performance of the Claimant.c.A report to the Executive Committee of such discussions and improvement plan in place.d.Finally, written warning of the same.

28. For these reasons, we find that the Respondent failed on the procedure for termination on just cause.

29. With respect to “just cause”, FIFA Regulations Articles 13 provides as follows:“A contract between a professional and a club may only be terminated upon expiry of the term of the contract or by mutual agreement.”

30. Article 14 of the same Regulations provides that:“A contract may be terminated by either party without consequences of any kind (either payment of compensation or imposition of sporting sanctions) where there is just cause.”

31. The question that then arises is: Was there just cause to terminate the employment?

32. Black’s Law Dictionary defines ‘just cause’ as ‘A reason that is legally acceptable or sufficient.’

33. CAS 2017/A/5228 [Club A] v [Player X] & [Club B.] Par 99 of the decision has previously held that:-‘…for a party to be allowed to validly terminate an employment contract, it must have warned the other party, in order for the latter to have had the chance, if it deemed that the complaint to be legitimate, to comply with its obligations.’

34. The unsubstantiated claim that the Claimant was performing poorly, in our view, does not constitute just cause.

35. On this issue we therefore find for the Claimant that the termination of the employment contract was unlawful, unfair and unjustified for the foregoing reasons.

ii. Whether the Claimant is entitled to the reliefs as sought in the Statement of Claim 36. Article 17 (1) (i) of the FIFA Regulations on the Status and Transfer of Players provides that “A player whose contract has been unfairly terminated is entitled to the residual contractual sum he would have been paid had the contract been allowed to run to its logical conclusion.”

37. In Ascoli Calcio SpA v Papa Waigo N’diaye (2012), the Court of Arbitration for Sports which is the apex sports court held inter 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.

38. In FC Karpaty v Leonid Kovel & FC Dinamo Minsk (CAS 2014/A/3491) it was opined that,“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 Article 17 of the FIFA Regulations.”

39. The view on the need for compensation following the breach as in these circumstances is further anchored under our domestic labour laws, wherein Section 41 of the Employment Act 2007 demands that the termination of a contract of employment in the circumstances of the Claimant would have necessitated a suitable notification with reasons before termination on the part of the Respondent. This did not happen.

40. It is also worth noting that whereas the Respondent claimed that they had paid the one (1) month salary in lieu of notice, the Claimant denied having received the said payment and further that the Respondent’s witness was ineligible to give documentary evidence on the grounds that they were not the maker of the documents.

41. This Tribunal is fully aware of its role in the efficient and just determination of disputes especially those of sporting contracts. Hence, it cannot engage in any conduct that disadvantages any party. Nonetheless, it is not strictly bound to the rules of the evidence in the adjudication of disputes which is underpinned by its specialized nature in dispute resolution.

42. For this reason, the Tribunal allowed the presentation of documentary evidence by a secondary witness if they are instrumental in the discharge of its mandate. Since the contents of these documents are in question, we consider it essential that they are admitted except to the extent that their authenticity has not been rebutted.

43. From a cursory look, the documents do not indicate that the Respondent issued the Claimant with the one month’s salary in lieu of notice. Ordinarily, it is expected that this should be a simple straightforward matter of evidence in the form of payslip or bank transfer lest it fails.

44. At this point, the Tribunal adverts itself on the evidentiary and legal burden on each of the allegations raised by the parties. In essence, the strength or proof of evidence which is to be discharged by the parties in the conduct of the case is critical to the success of their arguments. proof of evidence, often referred to as evidentiary burden, is not always static as it can shift between the parties. This was aptly captured in Ahmed Mohammed Noor v Abdi Aziz Osman where the court quoted as follows in paragraph 2121. The majority decision of the Supreme Court in Presidential Election Petition No. 1 of 2017 between Raila Amolo Odinga & Another vs. IEBC & 2 Others (2017) eKLR had the following to say on the evidential burden of proof in paragraphs 132 and 133 thereof: -132. Though the legal and evidential burden of establishing the facts and contentions which will support a party’s case is static and “remains constant through a trial with the plaintiff, however, “depending on the effectiveness with which he or she discharges this, the evidential burden keeps shifting and its position at any time is determined by answering the question as to who would lose if no further evidence were introduced.133. It follows therefore that once the Court is satisfied that the petitioner has adduced sufficient evidence to warrant impugning an election, if not controverted, then the evidentiary burden shifts to the Respondent, in most cases the electoral body, to adduce evidence rebutting that assertion and demonstrating that there was compliance with the law or, if the ground is one of irregularities, that they did not affect the results of the election. In other words, while the petitioner bears an evidentiary burden to adduce ‘factual’ evidence to prove his/her allegations of breach, then the burden shifts and it behooves the Respondent to adduce evidence to prove compliance with the law…..

45. In Alice Wanjiru Ruhiu v Messiac Assembly of Yahweh [2021], the court espoused as follows with regards to the legal burden;21. I also refer to The Halsbury’s Laws of England, 4th Edition, Volume 17, at paras 13 and 14: describes it thus:“The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a Claimant must satisfy the court or Tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case with separate issues.”

46. Undoubtedly, the Respondent had a simple task of properly documenting its records to confirm payments to which it did not. As such, the Tribunal holds the view that no payments were made particularly in relation to the notice period they alleged to have compensated for.

47. An ambiguous directive to the bank to remit money to the Respondent’s account that is to be used to cater for the salaries of staff among other obligation is insufficient in demonstrating that they have discharged their evidentiary and legal burden.

48. It is clear that the Claim herein is specific to the Claimant, we do not see the reason as to why the Respondent could not take keen interest in handling the Claimant’s dues more diligently considering that the separation process had begun. This is because the amount due was to be credited to his account upon clearance with the club which should be easy to prove.

49. In light of the foregoing, the Tribunal posits that the evidence produced by the evidence was admissible except that it lacks probative value. Hence, the Respondent has failed to show that the Claimant was paid his dues

50. Having noted this, Section 49 of the Employment Act provides for remedies for wrongful dismissal and unfair termination. It states, where relevant, that:the equivalent of a number of months wages or salary not exceeding twelve months based on the gross monthly wage or salary of the employee at the time of dismissal.

51. The Tribunal in assessing the remedies to be granted shall be guided by the above provision.

52. We also appreciate the provisions of the FIFA Regulations on the Status and Transfer of Players on the compensation of the aggrieved party following a breach of contract.

53. However, while computing the total amount that should be paid to the Claimant, we shall take into consideration that the Claimant did not adhere to the provisions of Clause 18 of the contract which provides for dispute resolution.

54. Specifically, Clause 18. 2 states that‘All 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 into effect of any such provision or as to the termination or consequences of termination shall be at first instance be resolved through amicable settlement. Provided that a player has a right to appeal his dismissal within 7 days of such dismissal.

55. Further sanctions also befall the party in breach of the Contract. This position is again well established under Article 17(4) of the FIFA Regulations.

56. As such, we find the Respondent culpable for the breach of the contract with the Claimant, and direct the Federation, to apply and enforce suitable sanctions against the Respondent.

D. Disposition 57. In the circumstances and in view of the foregoing, the Claim is allowed in the terms of the following orders:i.The Respondent shall pay to the Claimant one month’s salary in lieu of notice of termination being Kshs. 81,000. 00;ii.The Respondent shall pay to the Claimant the sum of Kshs. 15,677. 00 being payment for the six (6) days worked in July 2023;iii.The Respondent do pay the Claimant the sum of Kshs. 972,000. 00 being the equivalent of twelve (12) months’ pay;iv.There shall be simple interest on the sums awarded in (i), (ii) and (iii) above at the rate of 14% per annum from the date of commencement of this action until payment in full;v.The Interested Party to issue and enforce such applicable sanctions on the

58. Respondent as stipulated under FIFA Regulation 17(4); vi. Each party shall bear its own costs.

DATED THIS 25TH DAY OF APRIL, 2024. SIGNED:JOHN M OHAGA, SC, CARB - CHAIRPERSONPETER OCHIENG - MEMBERBERNARD WAFULA MURUNGA - MEMBERHEARING: 29TH JANUARY, 2024Panel:John M. Ohaga, SC –ChairpersonPeter Ochieng’ - MemberBernard Murunga – MemberAppearancesThe Claimant is represented by Oduor B O instructed by Munyao, Simiyu, Onderi & Oduor Advocates t/a The B-Six Law Advocates Chambers, LLP.The Respondent is represented by Lenin Awino instructed by Cootow & Associates Advocates.