Collins Okoth saga and the Law

Courtesy of michezoafrika.com

Former Gor Mahia player Collins Okoth “Gatusso” recently announced that he had quit, or rather terminated his contract with the club. According to media reports, Okoth went on to say that he would wait for the expiry of his current contract with Gor Mahia, which is set to end on 27 June 2012, before making a decision on his next club. in doing this, Okoth stated that he would buy out his contract with Gor Mahia, and was quoted as saying that the club´s chairman had “directed [him] to the Secretary General (George Bwana) [with] whom [they] agreed with to buy out my contract; pay my salary for one month.”

He cited several reasons for his decision, such as:

1.    Insubordination from the club’s top organs, whom he claimed had have planted and furthered the notion that he lacked proper team discipline
2.    Claims that he at times worked to sabotage the team, e.g by throwing away a penalty against Muhoroni youth.
3.    The information fed to new coach Zdravko Logarusic about him, which he says was negative and portrayed him as indisciplined.
4.    Claims that he only chose certain games to play in, and opted out of others.

 Gor Mahia swiftly reacted, issuing a statement that they had suspended the player for alleged breach of contract. The player reacted by saying there was no way the club would force him to play for them.

But several legal questions beg in as far as the player´s contractual status is concerned, not to mention the rights and obligations of both Gor Mahia and the player under both the Kenyan football regulations and in the eyes of FIFA and international sports law.

Did Okoth have just cause for terminating his contract?
The FIFA regulations, jurisprudence, and case laws issued by the Court of Arbitration for Sport are clear on acts which justify the unilateral termination of a contract by a player. Such grounds range from among others subjecting players to prolonged periods of unpaid salary exceeding 3 months, or if an established player has only been fielded in less than 10% of the  team´s official matches in the course of a season.

Relating the said grounds to the facts, Okoth had no just cause to terminate the contract. It could be that his contract with Gor Mahia contained clauses entitling him to terminate the contract on any of the 4 grounds invoked by him, but this seems highly unlikely.

But even before terminating a contract, a player must first serve the club with a notice asking it to stop breaching the contract. The absence of a notice could invalidate any just cause for terminating a contract.

In Okoth´s case, he ought to have informed the club of what he perceived to be conduct in breach of the contract or report his “feelings” to the club´s board with a view to finding an amicable and internal solution.

Gor Mahia´s rights and remedies
The first remedy Gor seems to have taken is to suspend the player. This was valid and within the club´s rights pursuant to its internal disciplinary regulations. But the said suspension has at the same time been overtaken by events and carries no legal effect given the fact that Okoth has already terminated the contract.

But another remedy available to Gor in Okoth´s post contract era would be suing the player for unilateral termination of contract. Gor can seek compensation under the Kenyan football regulations, and such compensation ought to be in tandem with article 17 of the FIFA regulations on the status and transfer of players.
 
Assuming Okoth had not terminated the contract but had only been suspended and thereafter issued a statement saying that he would not play in any of Gor´s matches, the club cannot force him to play after the end of his suspension.

Under the general principles of international sports law, and taking the Carlos Tevez case as an example, a club cannot force a player under contract to play. The only remedy a club has in such a situation is to fine the player, keep suspending him or to terminate the contract for just cause on grounds of desertion.

Can Okoth buy out his contract?
The so called concept of lex sportiva, allows players to compensate their clubs buy buying out the remaining part of their contract. This, however, does not exonerate the player from further liability.

A player can only buy out his contract if there exists a clause in his contract entitling him to do so.

I have not had access to Okoth´s contract but I believe that no such clause exists. I also do not think Okoth´s sentiments that he had reached an agreement with the club to buy out his contract is true, given the fact that the club issued confirming his suspension.

The player seems to be confusing between a buyout clause and the concept of compensation based on the “remuneration and other benefits due to the player under the existing contract” as established in article 17 of the FIFA regulations on the status and transfer of players.
 
True, the FIFA regulations, and I believe the Kenyan football regulations do state that compensation for unilateral breach of contract shall be based on among other criteria, the “remuneration and other benefits due to the player under the existing contract”. But this is not the sole and only decisive factor.

Various other factors come into play in determining the amount compensation due from a player, such the remuneration due under his new contract, the fees and expenses paid and/or incurred by Gor Mahia and also the concept of specificity of sport.

I therefore do not think Okoth can be said to have fully compensated Gor by offering to pay them the remaining part of his salary.

The player might be forced to pay further compensation under the arm of specificity of sport. In other words, there are certain damages unique to sports which players and/or clubs might pay each other for unilateral termination of contract in addition to the remaining salaries due under the old or new contract.

Compensation specific to sport includes aspects relating to the player´s image rights, fame, status and marketing brand to his club. Evidence of the costs incurred in replacing the player him, the financial investments Gor made in training him, or evidence that that Gor´s performance substantially declined following the player´s breach may also be considered in awarding further compensation.  

Pursuant to FIFA jurisprudence as well as case law established by the court of arbitration for sport, compensation under the arm of specificity of sport Is awarded don the basis of the player´s 6 months’ salary under his old club.

All in all, Okoth is now a free player and he may sign for any club he so wishes.