Paul Mungai Kiongera v Sofapaka Football Club & 3 others;Football Kenya Federation (Interested Party) [2022] KESDT 119 (KLR)

REPUBLIC OF KENYA

OFFICE OF THE SPORTS DISPUTES TRIBUNAL

AT NAIROBI

CASE NO. E007 OF 2021

PAUL MUNGAI KIONGERA........................................................................................................CLAIMANT

-VERSUS-

SOFAPAKA FOOTBALL CLUB(Sued through its MANAGEMENT COMMITTEE,

CHAIRMAN (Mr. Elly Kalekwa ),

GENERAL MANAGER TO/CEO (Mr. Jimmy Carter Ambajo),

TEAM MANAGER (Mr. Hillary Echesa).......................................................................................RESPONDENT

FOOTBALL KENYA FEDERATION................................................................................INTERESTED PARTY

DECISION

PANEL

1. NJERI ONYANGO  –        PANEL CHAIR

2. MR GABRIEL OUKO -     MEMBER

3. MS MARY KIMANI -       MEMBER

REPRESENTATION

1. Mr. Munge instructed by the firm of Kwew Advocates LLP for the Claimant

2. Mr. Ken Ochieng instructed by the firm of Sila Munyao & Co Advocates for the Respondents

3. Mr. Muhuyu instructed by the firm of Litoro & Omwebu for the Interested Party

DEFINITIONS

1. FIFA – International Federation of Association Football

2. FKF- Federation of Kenyan Football

3. SDT- Sports Disputes Tribunal

THE PARTTIES

1. The Claimant is described as an adult of sound mind residing at Ngong in Kajiado County. He is a professional football player.

2. The Respondent is a Football Club established in Kenya which participates in the FKF Premier League, the top tier Club competition in Kenya.

3. The Interested Party is the National Sport Organization responsible for managing and running the sport of football in the country. It is responsible for ensuring adherence to football regulations and rules and to set up such organs and committees to assist in the management of the sport

BACKGROUND

4. Paul Mungai Kiongera (hereinafter “the Claimant”) filed his Statement of Claim on 3rd August, 2021 he also filed the following;

a) a Verifying Affidavit

b) Claimant’s List of Witnesses

c) Witness Statement by himself with annexures which contain some 50 pages

5. The Claimant’s position is that the employer /employee relationship between him and the Respondent had totally collapsed. He had issued a notice to terminate the same and sought various orders, details of which shall be set below

6. The matter was placed before the Chairperson of the Sports Disputes Tribunal who on 3rd August, 2021 made the following orders

“UPON READING the Statement of Claim and all supporting documents filed on 3rd August, 2021, the Tribunal hereby directs, and orders as follows:

1. The Application is hereby certified as urgent;

2. The Petitioners shall serve the Petition upon the respondents immediately;

3. The matter is set for mention on Tuesday 10th August, 2021 at 2. 30 p.m. via Microsoft Teams or such other medium as the Tribunal shall determine”

7. The pleadings filed and the summons to enter appearance were eventually served up the Respondents on 19th August, 2021 as per the Affidavit of Service of Ambrose Onyancha sworn on 23rd August, 2021.

8. When the matter was mentioned virtually via Microsoft Teams before the Tribunal on 24th August, 2021, the Claimant was represented by his Counsel on record. There was no appearance for the Respondent. The Tribunal made the following orders.

“UPON HEARING the mention of this case filed held on 24th August, 2021, The Tribunal hereby directs, and orders as follows:

1. The matter shall be heard on 7th September 2021 at 2. 30pm via Microsoft teams or such other medium as the Tribunal shall determine.

2. The Applicant shall serve a hearing notice served upon the Respondents and file an Affidavit of service

9. The Respondent appointed its Counsel on record and a Notice of Appointment of an Advocate was filed by the firm of M/S Sila Munyao & Company Advocates dated 31st August, 2021

10. On its part, the Interested Party appointed the firm of Litoro & Omwebu Advocates. They filed a Notice of Appointment dated 6th September, 2021.

11. When the matter came up for mention on 7th September, 2021, the parties were all duly represented by their respective Counsel. The respondent not being ready to proceed, the following orders were issued

UPON HEARING the mention of this case held on 7th September, 2021 the tribunal hereby directs, and orders as follows

1. The Respondent has 14 days to respond to the substantive Statement of Claim.

2. Prayer (g) of the Statement of Claim is excised from the main claim and its hearing will be expedited in view of the Claimant’s present status;

3. The Respondent accordingly has seven (7) days to respond to prayer (g).

4. The Claimant is granted leave to file any supplementary affidavit as he deems fit in response to the Respondent;

5. If the Claimant runs out of time viva voce evidence will be allowed relating to this prayer;

6. The matter will come up for hearing on 14th September, 2021 at 2. 30pm via Microsoft teams in relation to prayer (g).

12. On the 14th of September, parties were again represented by Counsel. The Claimant had not yet received the release letter in terms acceptable. The Tribunal issued the following orders

“UPON HEARING the case on 14th September, 2021 the Tribunal hereby directs and orders as follows:

1. The 1st Respondent shall issue an unconditional release of the Applicant by Friday 17th September 2021

2. The matter shall be heard on 28th September 2021 at 3. 00pm via Microsoft Teams or such other medium as Tribunal shall determine”

13. On 17th of September, the Respondent through his Advocates on record filed a Notice of Motion Application under Certificate of Urgency dated 31st August, 2021 there are Four (4) prayers in the Application

“Ex-parte

1. THAT this application be certified as urgent and be heard on priority basis

2. THAT there be an order for stay for the proceedings herein pending the hearing and determination of this application inter-parties

Inter-parties

3.  THAT there be an order of permanent stay of proceedings herein

4. THAT the cost of this application provided for”

14. The Application is grounded on the facts

a. THAT the parties herein have not agreed to refer to this Honourable Tribunal the subject dispute as provided under Section 58(b) of the Sports Act and as per the Arbitration Agreement subject hereof and ought to be allowed to do so in the first instance

b. THAT the Respondent has not delivered any pleadings or taken any other steps in these proceedings.

c. THAT there is no sufficient reason as to why the subject dispute should not be referred in accordance with the Arbitration Agreement

d. THAT the Respondent is ready and willing to do all things necessary to the proper conduct of the Arbitration as agreed.

e. THAT this Honourable Tribunal has a discretion to grant the orders sought herein

15.  The Respondent’s objections on the jurisdiction of the tribunal was deliberated upon by the Panel. A ruling on the same was issued on 9th November 2021. The Panel held that the Tribunal had requisite jurisdiction to hear and determine the claim as filed. The Panel then issued the following directions

“UPON HEARING of this case by the tribunal on 9th November, 2021, the Tribunal hereby directs and orders as follows:

1. The Respondents are hereby granted seven (7) days to file and serve their response to the Claimant’s claim

2. The Claimant is hereby granted leave to file a response to the Respondent’s response within seven (7) days of service

3. The matter will be mentioned on 30th November, 2021 at 2. 30pm via Microsoft Teams or such other medium as Tribunal shall determine to confirm compliance and for further directions.

16. On 30th November, 2021, when this matter came up for mention to confirm compliance, all the parties were represented by Counsel. Mr. Munge for the Claimant informed the Panel that he had not yet been served with the Respondent’s response to the claim. He asked for directions on the hearing.

17. On his part, Mr. Muhuyu for the Interested Party took the position that the Interested Party would not be participating in the proceedings as they relate to the employment contract between the Claimant and the Respondent.

18. Mr. Munyendo holding brief for Mr. Ken Ochieng for the Respondent informed the Panel that Mr. Ochieng had been involved in an accident that resulted in an injury to his back. As such he was prescribed to remain in bed rest for at least three weeks beginning the week prior to the date of the mention. This compromised his ability to file the Respondent’s response to the Claimant’s claim. Mr. Munyendo therefore sought further time to allow Mr. Ochieng to file a response to the claim.

19. The Tribunal took note of the parties’ submissions but did observe that the accident involving Mr. Ochieng took place sometime after the period for filing the Respondent’s response as per the Order issued on 9th November, 2021 has expired. The Panel therefore issued the following directions:

UPON HEARING of this case by the tribunal on 30th November, 2021, the Tribunal hereby directs, and orders as follows

1. Mr. Ochieng has time to delegate the representation of the matter and so the matter will be listed for hearing on 14th December 2021 at 2. 30pm. via Microsoft Teams or such other medium as the Tribunal shall determine in view of the exceptional circumstances in which Mr. Ochieng finds himself, and notwithstanding the timelines indicated in the ruling of the Tribunal dated 9th November, 2021

2. The Respondent is hereby granted seven (7) days from the date of the directions herein to file a response to the Claimant’s claim if any.

3. The Claimant is granted leave to file a response to the Respondent’s response within seven (7) days of service.”

20. This matter therefore came up for hearing on 14th December, 2021 at 2. 30pm. By that date the Respondent had not filed its response to the claim. There was no representation by Counsel for the Respondent either, despite the date having been given in the presence of Mr. Munyendo on 30th November, 2021. Mr. Muhuyu on his part reconfirmed that the Interested Party would not be participating in the hearing. The Panel then determined that the matter would proceed for hearing.

21. The hearing proceeded virtually via Microsoft Teams. Mr. Paul Mungai Kiongera the Applicant was sworn in and testified. He confirmed that he was the Claimant and that he had filed the Statement of Claim, the supporting documents as listed in the list of documents and the Witness Statement. He fully wished to adopt and rely on the Witness Statement and the documents produced. He thus prayed for judgment in his favour as set out in the Statement of Claim.  He confirmed that he had been issued with release latter by the Respondent on 14th October, 2021.

22. Mr. Munge upon closing the Claimant’s case requested for time to file his written submissions which was granted. Submissions were to be filed within seven days.

CLAIMANT’S CASE

23. By the Statement of Claim filed on 3rd August, 2021 the Claimant stated that on 14th September, 2020, 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 service as a professional football player at a monthly salary of Kshs. 70,000 inclusive payable at the end of each month effective from 14th September, 2020.

24. The Claimant stated that he commenced his contract and performed his part of the bargain but to the contrary, the Respondent breached the terms of the contract when it failed to pay the Claimant the portion of Salary for September, 2020, and accumulated three months arrears. Thereafter the Respondent acted in a discriminatory manner against the Claimant causing him anguish and other inconveniences.  He has particularized the Respondent’s action as follows:

“PARTICULARS OF DISCRIMINATION

a)Sending transport/fare to all other players with the exception of the Claimant;

b)Sending messages to all other players inviting them for meetings with the exception of the Claimant;

c)Not selecting the Claimant to play in the team despite his outstanding performance during training sessions;

d)Requiring the Claimant to train with the junior team for a certain period of time.”

25. The Claimant further claims that the Respondent continued to frustrate him after he put forth a demand for his overdue pay. The Respondent resorted to an “abusive and intimidative trajectory” towards him making false allegation of poor performance, misconduct and indiscipline against him and imposing illegal sanctions without a fair hearing. The particulars of such are set out as follows;

“PARTICULARS OF ILLEGAL SANCTIONS

a) Fining the Claimant a sum of Kshs 35,000/= to be deduced from the June, 2021 salary;

b) Directing the Claimant to train with the junior team for the next 28 days effective 11th June, 2021 (A directive the Claimant adhered to fully to his own humiliation and raised with the Interested Party therein for intervention and no action was taken).

26. The Claimant therefore prayed for the following Orders :

a) A declaration be made that the Respondent has breached the contract;

b) A declaration be made that the Respondent has frustrated the Claimant’s efforts to perform his obligations under the contract and thus constructively terminated the same;

c) A declaration that the Respondent has discriminated against the Claimant;

d) A declaration that the sanctions imposed upon the Claimant are illegal;

e) An order directing the respondent to pay the Claimant damages for:

i. Breach of contract

ii. Discriminating against the Claimant

iii. Imposition of illegal sanctions against the Claimant

f) An order directing the Respondent to pay the Claimant loss of income on the unexpired period of contract commencing 1st May, 2021 demand for overdue salary having been made in that month being Kshs 1,155,000/=

g) An order compelling the Respondent to issue a certificate of service and release letter to the Claimant within a period of seven (7) days from the date of delivery of the Judgment in the alternative and in the event the respondent fails/declines to issue the same the same be issued by the Chief Executive Officer (CEO) of the Interested Party;

h) Costs of this suit;

i) Interest (e), (f) & h at court rates from the date of delivery of the Judgment until payment in full;

j) Any other order that this Honourable Tribunal may deem fit to grant in the circumstances.

27. The Claimant adopted his written Witness Statement filed with his Claim, together with the documents set out in the List of Documents. The issues that are notable therefore are:

i) That for the period of 16th to end of that month, the Claimant was not paid salary for those days to date in September 2020;

ii) He claims not to have been paid salary from January to June, 2021;

iii) That he raised these concerns regarding salary with the team captain, one Michael Kibwage and   he was paid part salary to cover May, June and July leaving 3 months due outstanding;

iv) In view of this default, the Claimant engaged his Advocates on record to demand for his unpaid salary (3 months). The first letter of demand was issued on 10th May 2021 and served upon the Respondent and the Interested Party on 11th May, 2021 via email and a physical copy on 8th June 2021;

v) He then claims that the above action spurred the Respondent to take on a pronounced abusive and intimidative trajectory against him through various letters; those letters are dated 28th May and 7th June, 2021 contained in the documents filed by the Claimant. The letter of 7th June, 2021 accused the Applicant of indiscipline. He passed on these letters to his Advocates who issued a letter of 8th June, 2021 served via email and WhatsApp upon the Respondent’s manager/CEO on 9th June 2021.

28. The Claimant further complains of the actions taken against him which made his performance look bad and aimed at intimidating him. Some of the actions were:

a) Not playing me in my rightful position (from whose performance in my previous club (Wazito FC) the Respondent was attracted to engage my services);

b) Discriminately not selecting me for matches (despite my peak performance in training);

c) Inciting my teammates against me by making false allegations of my poor performance in my absence (which is contrary to principles of natural justice);

d) Intimidating me (by serving me letters in the presence of my teammates instead of calling me to the office, point in case the letter dated 28th May 2021);

e) Making unsubstantiated allegations against me (case in point the letter dated 14th April, 2021) amongst many other frustrations well within the Respondent’s knowledge.

29. The Claimant stated that by a letter of 11th June, 2021, the Respondent made various allegations against the Claimant accusing him of misconduct on his action to seek legal services to demand for his outstanding salary. The Respondent then without a fair hearing imposed the following sanctions against the Claimant:

a) A fine of Kenya Shillings Thirty-Five Thousand (Kshs 35,000/=) which would be deducted from my June 2021 salary;

b) That I start training with the junior team of the Respondent for the next 28 days effective from 11th June, 2021 failure to which the Respondent undertook to take further action against me without hesitation (A directive I adhered to fully to my own humiliation and raised with the Interested Party herein for intervention and no action was taken).

30. The Claimant then filed a complaint to the Interested Party on 15th June, 2021, copied to the Respondent. This was to seek intervention by the Interested Party through its Players Status Committee on his concerns. He stated that up till the date of filing this claim at the Tribunal, the complaint had not been acted upon by the Interested Party or its Committee.

31. The Claimant sets out in his statement various other actions by the Respondent which he says were aimed at discriminating him and making it difficult and impossible to perform his part of the contract for instance, without salary payment, he was expected to attend training, his colleagues got some funds for fare which was not paid to him, but then cited him for misconduct and served a show cause notice on him for failure to attend training.

32. For the foregoing reasons, the Claimant seeks the following reliefs:

a) A declaration be made that the Respondent has breached the contract;

b) A declaration be made that the Respondent has frustrated my efforts to perform my obligations under the contract and thus constructively terminated the same;

c) A declaration that the Respondent has discriminated against me;

d) A declaration that the sanctions imposed against me were and are illegal;

e) An order directing the Respondent to pay me damages for:

i. Breach of contract

ii. Discriminating against me

iii. Imposition of illegal sanctions against me;

f) An Order directing the Respondent to pay me loss of income on the unexpired period of contract commencing 1st May, 2021 demand for overdue salary having been made in that month being Kshs 1,155,000/=;

g) An Order compelling the Respondent to issue a Certificate of Service and Release Letter to me within a period of Seven (7) days from the date of Delivery of the Judgment. In the alternative and in the event the Respondent fails/declines to issue the same the same be issued by the Chief Executive Officer (CEO) of the Interested Party.

h) Costs of this suit;

i) Interest (e), (f) & (h) at court rates from the date of Delivery of the Judgment until payment in full;

j) Any other order that this Honourable Tribunal may deem fit to grant in the circumstances. repeated

33. The Claimant filed his written submission with the Tribunal which was dated 21st December, 2021. In his first issue for determination the Claimant submitted that the Respondent breached the contract between them and the Claimant. According to the Claimant, the Respondent breached the contract as it failed to discharge its financial obligations towards the Claimant despite having entered into a Contract with the Claimant that they would pay the Respondent a monthly salary of Kshs 70,000 payable at the end of every month according to clause 3. 1 of the Contract.

34.   The Claimant claims that through his Advocate on record he wrote to the Respondent over his unpaid salary through a letter dated 10th May, 2021 and the same served upon the CEO on 8th June, 2021. The Claim states that despite the Respondent being given more than 30 days they did not respond and neither did they pay the Claimant’s salary.

35. The Respondent avers that it is the failure by the Respondent to act on the Claimant’s complaint as well as pay the Claimant’s salary that led to them filing the matter with the Tribunal.

36. The Claimant asserts that the Respondent should pay damages for breach of contract and relied on the following provision:

Article 17(1) of FIFA Regulations on the Status and Transfer of Players

January 2021 edition provides that:

"In all cases, the party in breach shall pay compensation..."

37. The Claimant also relied on the following case:

In the case of South Nyanza Sugar Company Ltd v Donald Ochieng Mideny [2018] eKLR at paragraph 11 the High Court reiterated the purpose of damages for breach of contract as it had stated in the case of Consolata Anvatmo Auma v South Nyanza Sugar Company Limited MGR HCCA 53 of 2015 [20151eKLR that:

"...As a general principle, the purpose of damages for breach of contract is,

subject to mitigation of loss, the claimant is to be put as far as possible in the same position he would have been if the breach complained of had not

occurred. This is principle is encapsulated in the Latin phrase restitution in integrum..."

38. The Claimant also called for the Tribunal to impose sanction against the Respondent in accordance with article 17 (4) of the Fifa Regulations , which is as follows:

“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. It shall be presumed, unless established to the contrary, that any club signing a professional who has terminated his contract without just cause has induced that professional to commit a breach. The club shall be banned from registering any new players, either nationally or internationally, for two entire and consecutive registration period. The club shall be able to register new players either nationally or internationally, only as of the next registration period following the complete serving of the relevant sporting sanction. In particular, it may not make use of the exception and the provisional measures stipulated in article 6 paragraph 1 of these regulations in order to register players at an earlier staple.”

39. Secondly, the Claimant in his submissions stated that the Tribunal should direct that the Respondent has frustrated the Claimant's efforts to perform his obligations under the contract and thus constructively terminated the contract. According to the Claimant, the monthly salary provided by the Respondent is inclusive of fare which the players use to get to the training ground. The Respondents did not pay the Claimant and therefore he was unable to attend training.

40. Moreover, the Team Manager sent a sum of Kshs 7,000/= to other players and excluded the Claimant. The Team Manager also invited other players to training via text and the Claimant was excluded. Despite having not been paid for several months, the Claimant borrowed some money to attend training. On the same day he was served with an email requiring him to show cause for insubordination for having failed to attend training and giving him 48 hours to respond failure to which his contract would be terminated.

41. It is the Claimant’s submission that while he has been very consistent in discharging his contractual obligations by arriving early and giving his best during training sessions some members of the Respondent’s coaching staff frustrated his efforts by:-

a. Not playing the Claimant in his rightful position (from whose performance in his previous club (Wazito FC) the Respondent was attracted to engage his services)¡

b. Discriminately not selecting the Claimant for matches (despite his peak performance in trainings);

c. Inciting the Claimant's teammates against him by making false allegations of his poor performance in his absence (which is contrary to principles of natural justice);

d. Intimidating the Claimant (by serving him letters in the presence of his teammates instead of calling him to the office, point in case the letter dated 28t' May, 2021);

e. Making unsubstantiated allegations against the Claimant (case in point the letter dated 14"' April, 2021) amongst many other frustrations well within the Respondent's knowledge

42. The Claimant wrote to the Respondent through his Advocates on record detailing the reasons above as to why the Claimant had been unable to attend training. The Claimant tried to serve the Respondent with the letter but the Respondent refused to be served with the same.  The Claimant therefore submits that in light of the Respondent’s conduct and those of its staff amount to constructive dismissal therefore the Claimant was entitled to leave without giving notice.  The Claimant also submits that he is entitled to remedies of unfair termination and wrongful dismissal. The Claimant submits that he is entitled to be paid a salary of 12 months Kshs. 840,000/=

43.  The Claimant in his submissions requested for the Tribunal to order the Respondent to pay him Kshs. 1,155,000/= which is the sum payable for the unexpired period of the contract as from 1st May, 2021 to 14th September, 2021.

44. The Claimant also submits that he was discriminated by the Coach of the Respondent when he asked the Team Manager to sent Kshs. 7,000 as fare to all other players but directed that the Claimant be excluded. The Claimant also alleges in his submissions that the Respondent invited other players to team meetings and excluded the Claimant. The Claimant relied on Article 13 (1) of the FIFA Disciplinary Code 2019 edition:

1. Any person who offends the dignity or integrity of a country, a person or group of people through contemptuous, discriminatory or derogatory words or actions (by any means whatsoever} on account of race, skin colour, ethnic, national or social origin, gender, disability, sexual orientation, language, religion, political opinion, wealth, birth or any other status or any other reason, shall be sanctioned with a suspension lasting at least ten matches or a specific period, or any other appropriate disciplinary measures.”

45. The Claimant alleges that he is entitled to Kshs. 3,000,000/= from the Respondent and relied on the case of Pandya Memorial Hospital v Geeta Joshi:

“We hereby set aside the award of Kshs 5,000,000 and substitute the award of Kshs 3,000,000 for discrimination and unfair practice.”

46. The Claimant submits that he was punished for seeking legal redress in order to demand payment of his overdue salary. The Claimant submits that this contravenes Articles 47 (1) & (2) and 50 (1) & (2) g of the Constitution of Kenya 2010 and that the Tribunal should declare that the sanctions imposed upon the Claimant were illegal.

47. The Claimant therefore prayed for the following orders from the Tribunal:

a)A declaration be made that the Respondent breached the contract;

b)A declaration be made that the Respondent frustrated the Claimant's efforts to perform his obligations under the contract and thus constructively terminated the same;

c)A declaration be made that the Respondent discriminated against the Claimant;

d)A declaration be made that the sanctions imposed upon the Claimant were and are illegal;

e)An Order directing the Respondent to pay the Claimant damages for:

i.Breach of contract-Kshs.210,000/=;Discriminating against the Claimant-Kshs.3,000,000/=;

ii.Imposition of illegal sanctions against the Claimant.

An Order directing the Respondent to pay the Claimant loss of income on the unexpired period of contract, commencing 1"t May 2021 demand for overdue salary having been made in that month, being Kshs.1,155,000/=.

g)(Spent).

h)Costs of the suit.

i)Interest (e), (f) & (h) at courts rate from the date of Delivery of the Judgment until payment in full.

j)Any other Order that this honourable Tribunal may deem fit to grant in the circumstances.

ANALYSIS AND DECISION

48. The Panel has considered the documents filed by the Claimant and his evidence. The Panel notes that the Respondent did not file any response to the claim. The issues that arise from the pleadings as filed are:-

In respect to the contract between the parties:

a. Whether or not the Respondent breached the terms of the contract?

b. Whether or not the Respondent frustrated the Claimant’s performance of his obligations under the contract?

c. What are the appropriate orders to grant in the circumstances?

49. It is noted that the Claimant had prayed for an order to compel the Respondent to issue a release letter to him. This prayer was also contained in the Notice of Motion Application filed with the substantive claim. This prayer was dispensed with at the Interlocutory stage by the orders of the Tribunal of 7th September and 14th September and the Claimant’s Counsel did confirm that an appropriate release letter had been issued to the Claimant by the Respondent on 13th October, 2021. That prayer is therefore spent.

50. The Panel has reviewed the contract between the Claimant and the Respondent. The terms thereof in regard to the Claimant’s remuneration for rendering his professional football services to the Respondent are clear.  The player was to play exclusively for the Respondent at a consideration by way of remuneration and allowances of Kshs 70,000 (inclusive) “payable at the end of every month”

51. The Claimant stated that he commenced playing for the Respondent on 14th September 2020 (contract was signed on 14th September, 2020) and that up to the time of filing this claim and at the hearing date he had not been paid the pro-rated salary for that period of 16 days. In the absence of a statement from the Respondent to controvert that statement, that position remains unrebutted

52. The Claimant at paragraphs 6, 7 and 8 of his statement stated;

6. In compliance with the terms of the contract I have continued to offer my services as a professional football player to the Respondent to date.

7. On the contrary the Respondent only complied with the terms of the contract up to January 2021 when my last full salary was paid. Thereafter in toto breach of the contract the Respondent has not paid my salary this year, 2021, for February, March, April (only paid part of it), May, June and July

8. Noting that the Respondent had not paid my salary for a number of months and in compliance with the contract I raised the issue with the then team captain, Michael Kibwage, and who engaged the management of the Respondent but still no payment was forthcoming.

53. The Panel has seen a letter of demand dated 10th May, 2021 addressed to the chairperson of the Respondent and copied to the Interested Party. That letter is as follows

The Chairman,

Sofapaka Football Club (F.C)

24, Muthithi Rd, Kethera House,

Suite No. 3, Westlands,

P.O. Box 4465 – 00506

NYAYO STADIUM

NAIROBI

Dear Sir/Madam,

RE: DEMAND FOR PAYMENT OF THREE (3) MONTHS UPAID SALARY

FOR PAUL MUNGAI KIONGERA

We refer to the above subject matter in which we have been retained by Mr. Paul Mungai Kiongera (herein referred to as “Our Client”) with instructions to address you as herein under:

Pursuant to our Client joining Sofapaka Football Club (F.C) (herein after referred to as “the Club”) on 14th September, 2020, our client has to date not been paid three (3) months’ salary which amounts to substantial breach of the terms and conditions of the contract entered into on the said date and also breach of the relevant Fifa Laws and Regulations. The other facts are well within your knowledge.

Our instructions are to DEMAND,which WE HEREBY DOthe immediate payment of the said outstanding dues to our Client.

TAKE NOTICEthat if the aforesaid outstanding dues are not paid either directly to our client or through our offices within a period of SEVEN (7) DAYSfrom the date hereof we have instructions to take the relevant legal action against the club.

Be therefore advised to act accordingly.

Yours Faithfully

KWEW ADVOCATES LLP

SAMUEL KIONGERA

54. The Claimant states that that letter was not responded to nor was his then 3 months overdue salary paid. The Panel is satisfied from the documents availed that the letter was duly remitted to the Respondent and the Third party.

55. In the absence of a response to the letter of 10th May, 2021 a letter was issued to the Interested Party on 15th June, 2021 in the following terms

The Secretary General/CEO,

Football Kenya Federation (FKF)

Fifa Goal Project at Kasarani Stadium

P.O Box 49911-00100

NAIROBI

Dear Sir/Madam

RE: THREE (3) MONTHS OVERDUE SALARY FOR PAUL MUNGAI KIONGERA, ABUSIVE AND INTIMIDATIVE CONDUCT OF SOFAPAKA FOOTBALL CLUB IN THE FORM OF WARNINGS, FINE AND DEMOTION TO JUNIOR TEAM

We refer to the above subject matter in which we have been retained by Mr. Paul Mungai Kiongera (herein after referred to as “Our Client”) with instructions to address you as herein under:

By virtue of the letter dated 10th May, 2021, which was received at your offices on 11th May, 2021 and also served upon Sofapaka Football Club (herein after “the club) on the very day of 11th May 2021 in advance via email, and only managed to be served upon the CEO of the club physically on 8th June, 2021 on their training ground, their offices having remained closed for a while. Our client in the said letter demanded payment of three (3) months overdue salary owed to him by the club by virtue of the contract entered into between our client and the club on 14th September, 2020 (a copy of the advance email sent on 11th May, 2021 and a copy of the demand letter dated 10th May 2021 enclosed herein for ease of reference).

Instead of the club addressing the issues raised by our Client in the letter dated 10th May, 2021, the club took an abusive and intimidative trajectory against our client through various letters addressed directly to him instead of being addressed through us as his legal counsel.

The first of the said letters is the one dated 28th May 2021 and which was served upon our client on 7th June 2021 via email and via WhatsApp making allegations of dwindling performances (a copy of the letter dated 28th May 2021 enclosed herein for ease of reference)

Thereafter the club served our client with the letter dated 7th June 2021 making allegations of indiscipline on the part of our client (a copy of the letter dated 7th June, 2021 enclosed therein for ease of reference)

Our Client placed the said two letters in our hands and instructed us to respond to the same and which we did effectively and comprehensively via our letter dated 8th June, 2021. Our Court process server tried to get in touch with the CEO of the club in order to effect service of the letter dated 8th June 2021 but the CEO declined service thus necessitating service to be effected via email and WhatsApp (a copy of the letter 8th June, 2021, the email of service and the WhatsApp message of service enclosed herein for ease of reference)

Subsequent to the aforesaid two letters, the club in a bid to reaffirm its abusive and intimidative trajectory towards our client served with a letter dated 11th June, 2021 making allegations of misconduct and act of indiscipline behavior. Moreover, the club alleged that by our client engaging our legal services to demand payment of his three (3) months overdue salary that amounted to misconduct and act of indiscipline on the part of our client. Consequently, the club proceeded to impose the following sanctions against our client:

a. A fine of Kenya Shillings Thirty Five Thousand (Kshs 35,000) which would be deducted from its June 2021 salary

b. Our client to start training with the junior team of the club for the next 28 days effective from 11th June, 2021 failure to which the club undertook to take further action against our client without hesitation

(a copy of the letter dated 11th June 2021 enclosed for ease of reference)

Following from the aforesaid its repugnant and contrary to public policy and public interest and in toto breach of the provisions of the FIFA regulations on the Status and Transfer of players that a party in breach of the terms of a contract proceeds to allege misconduct and indiscipline when called upon to honour the same, and also proceeds to impose sanctions against the compliant party.

Consequently by virtue of Article 56 (4)of The Constitution of Football Kenya Federation (FKF) (2017), Chapter  Six paragraph 6. 1.7 of the Rules and regulations Governing Kenyan Football (2019) and Article 12bisof the Fifa regulations on the Status and Transfer of playerswe urge you intervene  IMMEDIATELYand take appropriate action against the club and its concerned and relevant officials in order to effect the culture of respecting contracts as espoused by the FIFA Regulations on the Status and Transfer of  players.

We look forward to prompt and immediate intervention.

56. There has been no rebuttal to the fact of issuance of those letters nor the issues of non-payment of salary claimed by the Claimant in them and in the present claim.

57. Article 126 of FIFA Regulations on Status and Transfer of players January 2021 edition provides that :-

126 overdue payables:

Clubs are required to comply with their financial obligations towards players and other clubs as per the terms stipulated in the contracts signed with their professional players and in the Transfer Agreements

12 bis

.1. Clubs are required to comply with their financial obligations towards players and other clubs as per the terms stipulated in the contracts signed with their professional players and in the transfer agreements.

2. Any club found to have delayed a due payment for more than 30 days without a prima facie contractual basis may be sanctioned in accordance with paragraph 4 below.

3. In order for a club to be considered to have overdue payables in the sense of the present article, the creditor (player or club) must have put the debtor club III. Registration of players 15 in default in writing and have granted a deadline of at least ten days for the debtor club to complywith its financial obligation(s).

4. Within the scope of their respective jurisdiction (cf. article 22 in conjunction with articles 23 and 24), the Players’ Status Committee, the Dispute Resolution Chamber, the single judge or the DRC judge may impose the following sanctions:

a) a warning;

b) a reprimand;

c) a fine;

d) a ban from registering any new players, either nationally or internationally, for one or two entire and consecutive registration periods.

5. The sanctions provided for in paragraph 4 above may be applied cumulatively.

6. A repeated offence will be considered as an aggravating circumstance and lead to a more severe penalty.

7. The execution of the registration ban in accordance with paragraph 4 d) above may be suspended. By suspending the execution of a registration ban, the deciding body subjects the sanctioned club to a probationary period ranging from six months to two years

58. The Panel takes note of the written demand issued by the Claimant to the Respondent. As stated the issues raised therein have not yet been rebutted. Therefore the requirement that the demand be in writing is met. The Respondent club has not shown that it has complied with the demand several months after the same was issued.  In the alternative, the Respondent could by way of a response, demonstrated that all dues owing to the claimant had been paid, which is not the case presently. Consequently, the Panel finds that the Claimant has shown that the Respondent, failed to pay his salary dues for 3 months covering the period January to June 2021 at a rate of Kshs 70,000 per month.  This was in breach of the Contract executed between the parties and the applicable FIFA rules.

59. The Applicant has prayed for a declaration that the Respondent frustrated his performance of his obligations under the contract, leading to an inability for the Claimant to discharge his part of the contract and eventually to seek to leave the club before the expiry of his contract which was a constructive termination.

60. The Claimant in his submissions has referred the Panel to the discussion of the Court of Appeal in the case Coca Cola East &Central Africa Limited vs Maria Kagai Ligaga [2015] eKLRwhere the Court of Appeal quoted with approval the decision of Lord Denning Mr. in Western Excavating [(ECC) LTD vs Sharp [1978]1CR 222,as follows:

“If the employer is guilty of conduct which is a significant breach going to theroot of the contract of employment or which shows that the employer no longerintends to be bound by one or more of the essential terms of the contract, thenthe employee is entitled to treat himself as discharged from any furtherperformance. If he does so, then he terminates the contract by reason of theemployer's conduct. He is constructively dismissed. The employee is entitled in those circumstancesto leave at the instant without giving any notice at all or alternatively, he may give notice and say that he is leaving at the end of the notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once (emphasis. ours). (See also Nottingham County Council -v- Meikle (2005) ICR.”

At paragraph 29of the said case, the Court of Appeal went on to say that:

"What is the key element and test to determine if constructive dismissal has takenplace" The factual circumstances giving rise to constructive dismissal are varied. The key element in the definition of constructive dismissal is that the employee must have been entitled or have the right to leave without notice because of the employer's conduct. Entitled to leave has two interpretations which gives rise to the test to be applied. The first interpretation is that the employee could leave when the employer’s behavior towards him was so unreasonable that he could not he expected to stay - this is the unreasonable test. The second interpretation is that the employer's conduct is so grave that it constituted a repudiatory breach of the contract of employment - this is the contractual test. The contractual test is narrower than the reasonable test. The dicta in Western Excavating (ECC) Ltd. -v- Sharp 119781 ICR 222 adopts the contractual approach test and we are persuaded that the test is narrow, precise and appropriate to prevent manipulation or overstretching the concept of constructive dismissal. For this reason, we affirm and adopt the contractual test approach. This means that whenever an employee alleges constructive dismissal, a court must evaluate if the conduct of the employer was such as to constitute a repudiatory breach of the contract of employment. Whether a particular breach of contract is repudiatory is one of mixed fact and law (See Pedersen -v- Camden London Borough Council119811 ICR 674). The criterion for evaluating the employers conduct is objective; the employer's conduct does not have to be intentional or in bad faith before it can be repudiatory (See Office -v- Roberts (1980) IRLR 347). The employee must be able to show that he left in response to the employer's conduct (i.e. causal link must be shown, i.e. the test is causation). In the case of Jones -v- F. Sirl & son (Furnishers) Ltd. 119971 IRLR 493, it was held that there can still beconstructive dismissal if the employee waits to leave until he has found another job to xo to?. The employee must leave because of the breach but the breach need not be the sole cause so long as it is the effective cause. (See Walker -v- Josiah Wedgwood& Sons. Ltd. 119781 IRLR 105). The criterion to determine if constructive dismissal has taken place is repudiatory breach of contract through Conduct of the employer. The burden of proof lies with the employee. The employer's conduct must be such as when viewed objectively, it amounts to a repudiator), and fundamental breach of the contractual obligations. (See Wooder-v- Wimpey119801 1 WLR 277; see also Malik and Mahmud -v- Bank of creditand commerce International11998] AC 20). If the employee makes it clear that he or she is working under protest, he/she is not to be taken to have waived the right to terminate the contract under constructive dismissal. We adopt the dicta in the above cited persuasive judicial decisions as establishing relevant principles in constructive dismissal.”

61. The Panel finds the Court of Appeal’s summary of the legal principles for determining constructive dismissal helpful; those are:

a.What are the, fundamental or essential terms of the contract of employment;

b.Is there a repudiatory breach of the fundamental terms of the contract through conduct of the employer;

c.The conduct of the employer must be a fundamental or significant breach going to the root of the contract of employment or which shows that the   employer no longer intends to be bound by one or more of the essential  terms of the contract;

d.An objective test is to be applied in evaluating the employer's conduct;

e.There must be a causal link between the employer's conduct and the reason   for employee terminating the contract i.e. causation must be proved;

f.An employee may leave with or without notice so long as the employer's   conduct is the effective reason for termination;

g.The employee must not have accepted, waived, acquiesced or conducted himself to be estopped from asserting the repudiatory breach; the employeemust within a reasonable time terminate the employment relationshippursuant to the breach;

h.The burden to prove repudiatory breach or constructive dismissal is on the   employee;

i.Facts giving rise to repudiatory breach or constructive dismissal are varied.

62. The Panel thus need to look at the specific actions or inactions of the Respondent which would fit the above principles or any of them.

63. The letter of 10th May, 2021 which in any event arose from failure to pay the Claimant his salary dues for several months seems to have triggered a series of actions that led to the fall out of the parties.

64. The Panel has found that the non- payment of salary was a breach of the contract, it is in our view a breach of a fundamental term of the contract. It is also noted that his salary was all inclusive as per the contract as it also covered the players “fare” to the training venue.

65. It has been stated by the Claimant and not denied or rebutted that the Respondent at some time owed several players salary dues leading to a sit in by the players. It is also stated by the Claimant that to facilitate players attendance for training, the Coach/manager sent other players a sum of Kshs 7,000/= each, which was not remitted to him yet he made efforts to avail himself for training.

66. The Claimant has also stated in his witness statement (again not rebutted) that upon his Advocates issuing the demand letter of 10th May, 2021 in lieu of a response thereto to his Counsel, he on 7th June, 2021 via email and Whatsapp received a letter dated 28th May, 2021 making allegations against him of his dwindling performance. That letter is in the following terms:

“RE: DWINDLINGPERFORMANCE

It has come to our Notice that the four matches that you have featured in; your performance was below par in which you were briefed by the Technical Bench.

Be well advised that when you signed for us, the understanding was that you will help the team to achieve its objectives in which every match you are given an opportunity, you must proof beyond reasonable doubt and further made you not even to make in the first team.

As per your contract, the management is keen on your performance since you came in as an investment and it is expected to be so in every fixture we have without a doubt and we shall therefore continue to demand a higher standard of performance of you in every game before the season ends.

The management is concerned about this new development and we ask you to henceforth up your game otherwise we will have no choice but to terminate your contract based on your performance.

We thank you once again for your continued cooperation.

Yours Sincerely

JIMMY CARTER AMBAJO

GENERAAL MANAGER/CEO

67. The Claimant also received a letter dated 7th June, 2021 from the Respondent wherein allegations are made against him of indiscipline as follows

“Paul Kiongera

Sofapaka FC Player

NAIROBI

Dear Paul,

RE: WARNING LETTER

The above subject matter refers.

We refer to our letter dated 28th May, 2021 in which you were informed about your performance so far in all matches you have featured in.

The Management has taken an issue with your conduct of lately being a professional and a senior player in the team on and more so on your discipline on this matter.

We are astonished by you refusing to receive the letter when you were served by the Team Manager and walked out on him. As indicated in your contract. Article 1. 1 on performance and Article 5. 4 on conduct, you ought to have shown high level of discipline or professionalism when being briefed about your performance, in which you opted to walk out and refused to receive the letter.

A matter that was agreed by Management of the team and the Technical team that every end of month Players should be well briefed about their performances in which the whole team was well briefed by the Coach well in advance at the beginning of the Second Phase of the league in May, 2021.

The Management has taken an issue with your conduct of persistent indiscipline and thus warn you the second time against issues of indiscipline.

Therefore, if you continue with such behavior, the Management will have no choice but to take action against you without hesitation

You are therefore urged to apologize for your conduct and adhere to the club’s rules and guidelines as stipulated in your contract with immediate effect.

Your Sincerely”

68. The Applicant in response to the above letters issued a letter of 8th June, 2021 through his Advocates on record. The response of course denied the allegations of failure to/or dwindling performance on his part or any indiscipline and specifically laid out the following issues against the technical personnel of the Respondent:

a) Not playing the Claimant in his rightful position (from whose performance in his previous club (Wazito FC) the Respondent was attracted to engage his services);

b) Discriminately not selecting the Claimant for matches (despite his peak performance in trainings);

c) Inciting the Claimant's teammates against him by making false allegations of his poor performance in his absence (which is contrary to principles of natural justice);

d) Intimidating the Claimant (by serving him letters in the presence of his teammates instead of calling him to the office, point in case the letter dated 28t' May, 2021);

e) Making unsubstantiated allegations against the Claimant (case in point the letter dated 14"' April, 2021) amongst many other frustrations well within the Respondent's knowledge.

69. At paragraph 15 of the Witness Statements the Claimant states as follows:

15. Subsequent to the aforesaid two letters, the Respondent in a bid to   reaffirm its abusive and intimidative trajectory towards me served   with a letter dated 11th June, 2021 making allegations of misconduct   and act of indiscipline behavior. Moreover, the Respondent alleged   that by me engaging the legal services of my Advocates on record to   demand payment of my three (3) months overdue salary that that   amounted to misconduct and act of indiscipline on my part.  Consequently, the Respondent proceeded to impose the following  sanctions against me:

a)  a fine of Kenya Shillings Thirty-Five Thousand (Kshs 35,000/=) which would be deducted from my June 2021 salary

b) That I start training with the junior team of the Respondent for the next

28 days effective from 11th June, 2021 failure to which the Respondent undertook to take further action against me without hesitation (a directive I adhered to fully to my own humiliation and raised with the Interested Party herein for intervention and no action was taken).

70. The Claimant also states that he complied and trained with the junior team and returned to the senior team, which however he found to be on strike due to salary nonpayment issues. He could not train alone, he also had difficulties meeting his fare from his residence to the grounds in view of the unpaid salary.

71. Regarding the issue of fare payments at paragraph 18, 19 and 20 of the Witness Statement the Claimant states:

18. On or about 24th July, 2021 I learnt from one of my teammates that the Team Manager, Mr. Hillary Echesa, had sent Kenya Shillings Seven Thousand  (Kshs 7,000/=) to other players as fare with the exception of me. As a follow up to the said issue at exactly 13:50 on the same day I called the Team Manager to find out why the fare had not been sent to me yet it had been sent to other players. The team Manager informed me that he had been told by the coach, Mr. Ken Odhiambo, not to send me fare. I also learnt from my said team- mate that they had also been sent for messages inviting them for a number of meetings with the exception of me.

(see page number 44 of the Claimant’s list of documents for a copy of the call log)

19. Despite not having been paid salary for several months and also not having been sent for the fare like my teammates I borrowed some money and I was able to attend the training on 27th July, 2021. On the very day after the training I was served via email with a letter dated 27th July, 2021 from the Respondent requiring me to show cause for insubordination for having failed to attend training and giving me only 48 hours to respond failing which they were going to terminate my contract

(See page number 45 of the Claimant’s list of documents for a copy of the letter dated 27th July, 2021)

20. on the very day of 27th July, 2021 I instructed my current Advocates on record to respond to the said letter by the Respondent. My Advocates in their letter dated 27th July, 2021 reiterated my findings as outlined in paragraph 18 herein above and further indicated that it was certainly crystal clear that the Respondent continued to breach the contract between me and them and also to frustrate the same. Moreover, that the Respondent had the audacity to require me to show cause why I had not been attending training sessions yet the Respondent knew to date they had not paid me even a single penny towards my salary. Furthermore, they continued to discriminate me by not sending me fare while they send to other players. The said letter by my advocates was served on the very day via email upon the Respondent and also copied to the Interested Party and also served upon the Manager/CEO of the Respondent via WhatsApp. The physical copy was served upon the Interested Party on 29th July, 2021 but the offices of the Respondent having remained closed the court process server of my advocates came to our training ground on 30th July, 2021 to serve the Respondent but the management of the Respondent declined to receive the same (See page numbers 46 to 50 of the Claimant’s list of documents for a copy of the letter dated 27th July, 2021, a copy of the email and a copy of the WhatsApp message for service).

72. The events of end of July, 2021 are clearly so acrimonious that the Claimant filed this Claim on 3rd August, 2021.

73. The Panel has reviewed the sequence of events from May, 2021 culminating in the letter of 27th July, 2021. It is clear to the Panel that the trigger was the claim for unpaid salary owing to the Claimant. The failure by the Respondent to pay dues to the Claimant was a fundamental breach of the terms of the contract. Now to also expect the Claimant to diligently find his way to the training ground on a daily or even regular basis is in our view pushing their expectations to the extreme.

74. Viewed against the claim that some players did receive some funds as fare to facilitate their attendance for training while the Claimant did not receive similar treatment that surely would aggravate the Claimant’s feeling of unfair treatment and discrimination.

75. The Panel also considers that the reactions by the Respondent to the formal demand for salary or even the act of retaining Counsel to act on his behalf were ill informed and high handed; the Claimant has a fundamental right  to seek legal advice and representation when he deems a situation has arisen which requires legal attention. It is not in breach of the Contract between the parties. It is not prohibited.

76. The Respondent’s letters of 8th June and 27th July, 2021 demonstrate a fundamental breach of the Claimant’s right to be heard. Nowhere in the documents do we find an invitation to the Claimant to answer specific charges and/or even appear before a Panel for hearing of specific disciplinary claims against him. The process therefore culminating in the decisions to sanction the Claimant, demote him to train with the junior team were a clear violation of his expectation to be granted an opportunity for grievances raised to be handled in a humane and respectful manner.

77. The Panel therefore finds that the conduct of the Respondent towards the Claimant do fall into the principles set out at paragraph 59 above:

a. The Respondent  by failure to pay the salary due, was in breach of a fundamental term for the contract;

b. The Respondent failed to avail a reasonable, humane and respectful mode of resolving a dispute that arose;

c. The Respondent’s actions in response to the Claimant’s grievances were harsh, intimidating and discriminatory;

d. The Claimant could not under the hostile circumstances, without salary or facilitation avail himself for training;

e. The Claimant did not accept or waive his rights and followed up through his Advocates;

f. The Claimant was entitled to request for a release letter which was eventually issued on 14th October, 2021.

78. The Panel therefore finds that the contract between the parties was effectively terminated by reason of the conduct of the Respondent towards the Claimant.

79. What orders then can be issued in regards to the prayers by the Claimant?

80. As at the time of issuing the demand letter of 10th May, 2021 the Claimant was owed 3 months’ salary. That has not been disputed. Therefore the sum of Kshs 210,000/= due and owing to the Claimant as at 30th April, 2021.

81. There is uncontroverted evidence by the Claimant that he contrived to attend training up to July 2021 but received no salary or fare. Further, the Respondent only issued the Claimant with a release letter on 14th October, 2021 pursuant to orders granted by the Tribunal. For that period, the Claimant was effectively tied to the Applicant and could not engage in his trade with any other team.

82. The Claimant is a professional football player who had played even for the National Junior Team but received no salary or fare. Further, the Respondent only issued the Claimant with a release letter of 14th October, 2021 pursuant to orders granted by the Tribunal. For that period, the Claimant was effectively tied to the Applicant and could not engage in his trade with any other team.

83. The Panel therefore considers that the Claimant is entitled to salary payment up to 14th October, 2021 at the rate of Kshs 70,000/= per month; making a sum of Kshs 385,000/=.

84. The Claimant is a professional football player who had played even for the National Junior team. He has prayed and/or complained that he was humiliated, discriminated, intimidated and subjected to unfair treatment. The Panel has looked at the various correspondence between the parties from June 2021 to July 2021. In that short span, there were at least four letters written by the Claimant’s Advocates to the Respondent. We have referred to most of them above. What is glaring is that there is evidence of proper service of the said letters on the Respondent both electronically and physically, but none of them was replied to.

85. On the other hand, the Respondent found it better to write directly to the Claimant four letters. To understand the Claimant’s complaint it is fair to look at the contents of the letters and actions taken based on those letters.

86. On 10th May, 2021 the Claimant’s Advocates wrote to the Respondent with a demand for the unpaid salary for 3 months pointing out that the same was a substantial breach of the contract between the parties and in breach of the applicable Fifa Laws and Regulations. There is no response to this letter.

87. On 28th May the Respondent writes to the Claimant. They allege that the Claimant’s performance is below par and threaten termination of the contact.  The issue of his unpaid dues is not addressed. But notable its stated the Claimant is not even is?? the Statement “you must prove beyond reasonable doubt and further made you not even to make in the first team”. (sic )

88. On 7th June a “warning letter” is issued by the Respondent to the Claimant stated to be further to the letter of 28th May 2021referred to above. This time there are allegations of persistent indiscipline contrary to Clause 5. 4 of the Contract and lack of performance. Apparently, the Claimant had declined to be served with the letter of 28th May 2021. The Claimant on his part states this was done on the training grounds in the presence of other players while even review of his performance was also an attempt at dressing him down in the presence of his teammates. The Respondent asks the Claimant to apologize or face disciplinary action. It is worth noting that the letter of 28th May 2021 had not been served upon the Claimant as at 7th June, 2021.

89. The Claimant passes on the above letters to his Advocates who on 8th June respond to both letters of 28th May and 7th June, 2021. In the response, the lack of performance and indiscipline is denied. He also clarifies his concern about being served letters in the presence of his teammates. He also states that there is concerted effort by the management to frustrate his efforts to meet his contractual obligation. Again we find no response to this letter by the Respondent.

90. The Respondent on 11th June 2021 writes to the Claimant. It totally ignores the response to the letter of 7th June 2021 contained in the above cited letter from the Claimants Advocates. The letter of 11th June, 2021:

“RE: MISCONDUCT AND ACT OF INDISCIPLINE BEHAVIOUR

The above subject matter refers

We refer to our later dated 7th June, 2021 in which you were warned about your persistent indiscipline behavior.

The management is saddened by your persistent indiscipline behavior in which you have continued to show even after being told and cautioned about them more often.

As a matter of fact, the club has its own mechanism on dealing with their internal issues or appealing whenever there are issues and any matters that arises which is well stipulated on the contract; but once again you opted to go against this team (club) spirit and resolved for a confrontation by involving a third party on our matters.

As having a contract with the club, it is well stipulated on how you should carry yourself as a professional and furthermore, when you have personal issues with any member of the club, there is an avenue on how such matters should be handled.

It has now come to our notice that you have engaged a law firm to represent you by writing to us a demand letter for which we asked to pay the outstanding salary arrears and also you seem to coerce us into giving you matches even if you warrant to play at times.

Upon signing the contract, you never mentioned to us that all matters will be addressed by a certain legal firm and besides you have not exhausted all avenues availed by the club to deal with your personal issues.

In view of the aforementioned, the Management has taken this issue seriously and has therefore resolved to fine you Kshs. 35,000/= which will be deducted from your June, 2021 salary and further directing that effective today you will be training with our Junior team for the next 28 days failure to which we will take further action against you without hesitation.

Henceforth you are advised to keep our internal matters to yourself as indicated in the contract and to seek advice from the office whenever you have an issue in which it will be addressed accordingly.

Please take not that this matter takes effect immediately.

Yours Sincerely,

JIMMY CARTER AMBAJO

GENERAL MANAGER/CEO

91. The Panel notes that the letter makes generalized accusations of indiscipline but the thorn in the flesh is really the response from the Claimant’s Counsel. There is mention of the alleged internal mechanism to seek redress for the Claimant. In the Contract Clause 5. 4 requires the player (Claimant) to follow some hierarchy of command to air his grievances or dissatisfaction starting with the captain. The Claimant states that he sought help from the captain regarding his salary arrears. Only 3 months’ salary had been paid at the time. The Claimant produced text messages to the coach and Team Manager regarding his situation of unpaid salaries, request for fare facilitation to enable him to attend training. No response to those.  The Panel has also seen call log extract, which shows that the Claimant had severally called the Team Manager, and the Claimant says it was to discuss his situation.

92. The Respondent in the letter of 11th June 2021 also makes reference to the demand letters. Clearly the letters from the Claimant’s Counsel had been received. But the position taken is that the Claimant should not have sought legal representation and for that action it is not only termed indiscipline but also a breach of the Contract between the parties. It is alleged to be his “personal issues”.  For that reason, and without a chance to be heard, the Claimant is fined Kshs 35,000/= to be deducted from his June salary, 2021 and he is directed effective immediately to commence training with the junior team for 28 days.

93. Issues that stand out from the above letter of 11th June, 2021:

i) Lack of the process of fair administrative action by the Respondent in the alleged disciplinary action;

ii) Failure to grant a hearing to the Claimant but proceed to take adverse action against him;

iii) An attempt to deny the Claimant a right to legal representation by Counsel of his choice.

94. Consequently, the Panel finds that those actions were high handed, oppressive and unfounded in Law or under the Contract between the parties. The Contract did not and could not oust Constitutional rights to fair administrative action, right to fair hearing, a right to earn his salary for labour provided or the right to legal representation

95. The Panel therefore has no hesitation in finding that:

a) The Claimant was unfairly and in a discriminatory manner, treated by the Respondent;

b) The Respondent’s actions were intimidating oppressive and inhumane: they could not nurture a healthy employer/employee relationship between the parties;

c) The Respondent was grossly in breach of the -Contract between the parties, the Fifa Laws and Regulations and the Kenyan Labour Laws and The Constitution (contrary to articles 47 (i), 500(1) and (2);

d) The disciplinary action taken was irrational punitive and unlawful.

96. Consequently, the finding inevitably is that the Respondent’s action wholly contributed to the inability by the Respondent to execute his part of the contract, leading to a constructive dismissal of the Applicant/Claimant.

97. The Contract between the Claimant and the Respondent all things remaining equal was to run up to 14th September, 2022. By reason of the findings above, the same ran into headwinds and was constructively terminated and pursuant to orders of the Tribunal a release letter was issued on 14th October, 2021. The Tribunal will thus take the effective date of termination of the contract to be 14th October, 2021.

98. The Claimant has submitted that he should be awarded as follows

a) A declarationbe made that the Respondent has breached the contract:

b)  A declaration be made that the Respondent has frustrated the Claimant 's efforts to perform his obligations under the contract and thus constructively terminated the same:

c) A declaration that the Respondent has discriminated against the Claimant;

d) A declaration that the sanctions imposed upon the Claimant were and are illegal;

e) An Order directing the Respondent to pay the Claimant damages for:

i.Breach of contract;

ii.Discriminating against the Claimant; Imposition of illegal sanctions against the Claimant.

f)  An Order directing the Respondent to pay the Claimant loss of income on the unexpired period of contract, commencing Iss May 2021 demand .for overdue salary having been made in that month, being Kshs. 1, 155,000/=.

g) An Order compelling the Respondent to issue a Certificate of Service and Release Letter to the Claimant within a period of Seven(7) days from the date of Delivery of the Judgment. In the alternative and in the event the Respondent fails/declines to issue the same the same be issued by the Chief Executive Officer (CEO) of the Interested Party.

h) Costs of the suit.

i) Interest (e), (f) & (h) at courts rate from the date of Delivery of the Judgment until payment in full;

j) Any other Order that this Honourable Tribunal may deem fit to grant in the circumstances.

99. In regard to the claim for loss of income for the unexpired term of the contract which we find to be 11 months, the Panel has considered that the Claimant is a professional player who has played for other clubs previously. It has not been alleged or shown that he would be unable to obtain a similar position within the country within any length of time. The Panel also notes that there was issued a letter of release on 14th October, 2021 which therefore freed the Claimant to seek to join any other club without constraints. Further, the FKF transfer widow kicked in, in the period after the release letter was issued up to mid- January 2022. Accordingly, it is the Panel’s view that for this prayer, an allowance of 5 months from 14th October would be sufficient compensation. The Panel will therefore allow a sum of Kshs 350,000/= for this prayer. As regards the claim for damages for discrimination, the Panel notes that the issue was in regard to the failure to remit some Kshs 7,000/= to the Claimant as was done for other players. It is the Panel’s view that the sum of Kshs 3,000,000/= claimed in the submissions would be unreasonable and punitive in the circumstances. The Fifa Laws and Regulations do empower an Independent hearing Panel to impose a “fine” where circumstances allow. Weighing the degree of the act of discrimination, the effect of it which will be compensated by the award of salary for the period in issue and the interest to sustain the Respondent club as a going concern for the benefit of other players and the National Standards of the sport, the Panel is of the view that a sum of Kshs 150,000/= would be adequate.

100. The Panel does not find it appropriate to award any damages for the imposition of the various sanctions against the Claimant but does hold that the sum of Kshs 35,000/=imposed against the Claimant was unlawful, unfounded and against the tenets of fair hearing. The same can only be declared illegal and void. The Claimant’s salary for that period which has been awarded herein cannot suffer deduction.

DECISION

For the foregoing reasons and findings, the following orders commend themselves to the Tribunal and are hereby issued,

a. The Claimant is entitled to payment of salary outstanding as at June 2021 being 3 months salary for 2021 and 16 days for September 2020

i) 16days Kshs  37,333/=

ii) 3 months Kshs 210,000/=

b. The Claimant was retained as a player for the Respondent up to 14th October, 2021. He is entitled to salary for July, 2021 to 14th October, 2021  being Kshs  242,666/=

c. The Claimant is awarded damages for discrimination and for oppressive conduct meted upon him in the sum of Kshs 150,000/=

d. The Claimant is awarded damages for the unexpired period of the contract assessed at Kshs 350,000/=

e. The costs of this claim is awarded to the Claimant to be agreed or taxed

f. The Respondent shall be granted 30 days from the date of this decision within which to pay the sums set out at a, b, c and d above. In default of payment of the said sum within that period the total sum due thereunder shall attract interest at 12% per annum with effect from the expiry of the 30 days period.

DATED at NAIROBI THIS   25th   DAY OF    January,  2022

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MRS. NJERI ONYANGO,

PANEL CHAIR

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MS. MARY KIMANI,

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MR. GABRIEL OUKO,

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MEMBER

MEMBER