With the civil court case involving Mamelodi Sundowns and Pitso Mosimane's agency MT Sports Marketing and Management ongoing, Kickoff sought legal opinion on what is really in dispute and what could the possible outcome be.
Mosimane and his agency, MT Sports Marketing and Management, have been summoned before the South Gauteng High Court to answer to a litigation brought forward by Sundowns for breach of contract.
The well-decorated coach left the club in September 2020 to join Al Ahly, four months after signing a four-year contract extension with Downs.
The Brazilians are demanding, through the courts, that MT Sports Marketing and Management pay back a portion of the agency fees paid in advance, in the region of R8,6 million, as per the clause that stipulated that the club would be entitled to such refunds should Mosimane not honour the full duration of his contract.
MT Sports Marketing and Management are arguing that they feel the claw-back clause is discriminatory, as other agents such as Steve Kapeluschnik of JDR Consulting, representing head coach Rulani Mokwena, and Mike Makaab of ProSport International, whose client is senior coach Manqoba Mngqithi, do not have such clauses on the contracts of their clients, which were subpoenaed in court.
Lesedi Mphahlele, Attorney and Director at Fairbridges Wertheim Becker Attorneys, is of the opinion that the initial contract between Sundowns and Mosimane which, as the court heard, contained the claw-back clause, cannot be challenged, in spite of the discriminatory claims.
"At the onset, it is worth noting that there is no dispute regarding the validity of the contract between the two parties, which effectively means that the contract is valid and both parties consented to the provisions of the said contract, including the claw-back clause which remains the point of contention before the Gauteng Division of the High Court, Johannesburg," Mphahlele wrote, exclusively to KickOff.
"In view of the above, it is reasonable to assume that at the time at which the contract was concluded, no one foresaw the reasonable possibility of Pitso Mosimane leaving the club prior to their agreed termination date.
"This may be one of the reasons why the claw-back clause contained in the contract was not disputed from the onset. This is an important learning curve for all the sporting agents and or professionals. In sports, circumstances always change. Hence contracts must be thoroughly analysed, understood and properly negotiated in order to cater for possible future events which may have a negative impact on either of the contracting parties," Mphahlele added.
The legal mind was forthright in his conclusion that he is of the opinion that there was a clear breach of contract from Mosimane's camp.
"Whilst I am not privy to all the material aspects of the ongoing litigation between the two parties, it is evident that there is a clear breach of contract and, as such, the principle of pacta sunt servanda find prevalence.
"This principle is to the effect that obligations created in terms of an agreement must be honoured by contracting parties."
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