Labour Disputes
Texto da decisão
REF FPSD-5167
Decision of the
Dispute Resolution Chamber
passed on 5 May 2022
regarding an employment-related dispute concerning the player Hamed Latif Bakhtiari
BY:
Frans de Weger (The Netherlands), Chairperson
Khadija Timera (Senegal), member
Khalid Awad Al-Thebity (Saudi Arabia), member
CLAIMANT:
Hamed Latif Bakthiari, Iran
Represented by Mr Cleiton Cesar Bernardes and Joao Gabriel Moeller Demeneghi
RESPONDENT:
Suphanburi FC, Thailand
Represented by Eleven & Law
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I.
Facts of the case
1.
On 17 May 2021, the Iranian player, Hamed Latif Bakhtiari (hereinafter: “the player” or “the Claimant”),
and the Thai club, Suphanburi FC (hereinafter: “the club” or “the Respondent”) concluded an
employment contract (hereinafter: “the contract”) valid from 01 June 2021 until 31 May 2022.
2.
Article 3 of the contract stated that the player was entitled to receive from the club the total amount
of Thai Baht (THB) 2,600,000 payable as follows:
THB 200,000 as a signing on fee;
THB 2,400,000 (THB 200,000 x 12) as monthly salaries due on the last business day of each month.
3.
Article 3.4 of the contract stated that the club should provide accommodation in suitably conditions
in Suphanburi Province.
4.
Article 3.5 of the contract stated that the club would provide an additional lump sum of THB 200,000
per Leg to cover car and airplane ticket expenses.
5.
Article 16.2 of the contract stated, “Either party may terminate this Agreement and the engagement by
providing the other party no less than one month written notice. The club may pay the Player one-month
salary in lieu of the notice, or may place the Player on garden leave during such period. The Player who has
terminated his contract upon written notice shall similar as the Club shall in all cases pay a similar
compensation to the Club”.
6.
On 8 November 2021, the club offered to the player a termination agreement that it was rejected.
7.
On 9 November 2021, the club sent a termination letter to the player effective one month from that
date (cf. article 16.2 of the contract).
8.
On 4 December 2021, the player sent a default notice rejecting the termination letter and granting
the club 10 days to comply with the contract by paying the outstanding salary of December and
expenses related to the car and the airplane ticket.
9.
In addition, the player counteroffered new terms to settle the matter in an amicably way for a total
amount of THB 800,000 (3 monthly salaries plus expenses for the second leg).
10. On 15 December 2021, the player sent an email offering to extend the deadline to respond the offer
of termination that he made to finally reach a mutual agreement on the matter.
11. On 26 December 2021, the club sent a formal response to the player to the letter of 4 December 2021
and the email of 15 December 2021, contesting their contents. The club referred to the principle of
pacta sunt survanda, alleging that the termination process has been negotiated and freely
contractually agreed by both parties.
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12. On 29 December 2021, the player confirmed having received the sum of THB 266,670 from the
Respondent. The receipt enclosed by the Claimant states that this payment relates to the one-month
notice and ten days as final compensation (cf. article 16.2 of the contract).
13. On 3 January 2022, the player sent a second default notice to the club stating that the latter failed to
pay the amounts offered to reach a mutual agreement and rejected the content of its letter dated 26
December 2021.
14. Furthermore, the player presented again the same offer as he did on 04 December 2021 hoping to
reach a mutual agreement with the club.
15. On 10 January 2022, the club sent a second formal response rejecting the offer mentioned above and
sustained that the player was not entitled to any further sums from the Respondent excluding the
ones they already paid and that the Claimant recognized.
II. Proceedings before FIFA
16. On 16 February 2022, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Position of the Claimant
17. According to the Claimant, he rendered services to the club until 10 December 2021 when the club
terminated the contract without just cause. The Claimant added that the Respondent did not comply
with its financial obligations in accordance with the contract.
18. With regard to the expenses requested, the player stated that after the Respondent´s termination the
latter left the player without accommodation, food, visa and flight to return home. In this respect, the
player explained that his visa was cancelled by the Respondent, he had to do a COVID-19 test to not stay
illegal in Thailand and also had to wait two more months to go back home because at that time there were
no flights to Iran due to the COVID-19 restrictions. The player enclosed documentary evidence and the
following payment receipts:
THB 12,900 dated 18 January 2022 as flight ticket to return to Iran and
THB 1,999 dated 17 January 2022 as medical tests.
19. Moreover, the player argued that article 16.2 of the contract is abusive created in favour of the
Respondent only and hence it should not be taken into account for the calculation of compensation.
20. The requests for relief of the Claimant were the following:
THB 200,000 as car and tickets expenses corresponding to the second leg (cf. article 3.5 of
the contract);
THB 14,899 as reimbursement of expenses after the breach of contract by the club;
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THB 933,330 {THB 1,200,000 [THB 200,000 x 6] – THB 266,670 paid on 29.12.2021} as
compensation equivalent to the residual value of the contract;
THB 600,000 (THB 200,000 x 3) as additional compensation for the breach of contract
without just cause.
b. Position of the Respondent
21. The Respondent did not reply to the claim within the given deadline.
22. However, after the closure of the investigation phase, the club sent an unsolicited correspondence
claiming that article 16.2 of the contract is valid and therefore the claim of the player should be
rejected.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
23. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) analysed
whether it was competent to deal with the case at hand. In this respect, it took note that the present
matter was presented to FIFA on 16 February 2022 and submitted for decision on 5 May 2022. Taking
into account the wording of art. 34 of the October 2021 edition of the Procedural Rules Governing
the Football Tribunal (hereinafter: the Procedural Rules), the aforementioned edition of the
Procedural Rules is applicable to the matter at hand.
24. Subsequently, the members of the Chamber referred to art. 2 par. 1 and art. 24. par. 1 lit. b) of the
Procedural Rules and observed that in accordance with art. 23 par. 1 in combination with art. 22 lit.
b) of the Regulations on the Status and Transfer of Players (March 2022 edition), the Dispute
Resolution Chamber is competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between an Iranian player and a Thai club.
25. Subsequently, the Chamber analysed which regulations should be applicable as to the substance of
the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations
on the Status and Transfer of Players (March 2022 edition), and considering that the present claim
was lodged on 16 February 2022, the August 2021 edition of said regulations (hereinafter: the
Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
26. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 13 par. 5 of the
Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall carry
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the respective burden of proof. Likewise, the Chamber stressed the wording of art. 13 par. 4 of the
Procedural Rules, pursuant to which it may consider evidence not filed by the parties, including
without limitation the evidence generated by or within the Transfer Matching System (TMS).
c. Merits of the dispute
27. Its competence and the applicable regulations having been established, the Chamber entered into
the merits of the dispute. In this respect, the Chamber started by acknowledging all the abovementioned facts as well as the arguments and the documentation on file. However, the Chamber
emphasised that in the following considerations it will refer only to the facts, arguments and
documentary evidence, which it considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
28. The foregoing having been established, the Chamber moved to the substance of the matter, and
took note of the fact that the Respondent did not submit its position to the claim within the given
deadline. Therefore, the Chamber concluded that, in this way, the Respondent had renounced to its
right of defence and, thus, it had not formally contested the allegations of the Claimant.
29. In this context, the Chamber recalled that on 17 May 2021 the parties concluded the contract valid
from 1 June 2021 until 31 May 2022.
30. Moreover, the DRC took note that it remains uncontested that on 9 November 2021, the club
terminated the employment relationship effective from 10 December 2021, based on article 16.2 of
the contract.
31. According to the letter of termination, the DRC pointed out that the club deemed that it was allowed
to unilaterally terminate the contract by only giving one-month notice based on article 16.2 of the
contract.
32. The Chamber focused its attention to the content of article 16.2 of the contract, which states, “Either
party may terminate this Agreement and the engagement by providing the other party no less than one month
written notice. The club may pay the Player one-month salary in lieu of the notice, or may place the Player on
garden leave during such period. The Player who has terminated his contract upon written notice shall similar
as the Club shall in all cases pay a similar compensation to the Club”.
33. At this point and before analysing the validity of the aforementioned clause, the Chamber was eager
to emphasise that, in accordance with its well-established jurisprudence, only a breach or misconduct
which is of a certain severity justifies the termination of a contract. In other words, only when there
are objective criteria, which do not reasonably permit to expect the continuation of the employment
relationship between the parties, a contract may be terminated prematurely. Hence, if there are
more lenient measures, which can be taken in order to ensure the fulfilment of the contractual duties
by the counterparty, such measures must be taken before terminating an employment contract. A
premature termination of an employment contract can only ever be an ultima ratio measure.
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34. In this context, the Chamber pointed out that the club in its letter of termination did not provide any
reason for the termination of the contract with the player and in addition, certain remuneration was
outstanding.
35. The DRC recalled that even if the parties agreed in article 16.2 of the contract the possibility to
terminate the contract, this provision could not serve as legal basis to terminate an employment
contract anytime and without a valid reason.
36. In this respect, the Chamber acknowledged the usual imbalance in the bargaining power of the
employer and of the employee and therefore decided that such clause shall not have any legal effect
in the relevant employment relationship.
37. On account of the aforementioned, the Chamber decided that on 9 November 2021 (effective from
10 December 2021), the club had unlawfully terminated the employment contract with the player
effective and should be held liable for such breach.
ii. Consequences
38. Having stated the above, the members of the Chamber turned their attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
39. The Chamber observed that the outstanding remuneration at the time of termination, coupled with
the specific requests for relief of the player, amounting to THB 200,000 as car and airplane tickets
expenses corresponding to the second leg (cf. article 3.5 of the contract).
40. Consequently, and in accordance with the general legal principle of pacta sunt servanda, the
Chamber decided that the Respondent is liable to pay to the Claimant the amounts, which were
outstanding under the contract at the moment of the termination, i.e. THB 200,000.
41. Moreover, the DRC noted that the Claimant requested the amount of THB 14,899 as reimbursement
of expenses covering accommodation, food, visa and a flight to return to his home country.
42. In this respect, the Chamber took note that the Claimant presented enough documentary evidence
to prove having paid the requested expenses.
43. In light of the above, the Chamber decided that the Respondent is liable to pay the amount of THB
14,899 to the Claimant.
44. Having stated the above, the Chamber turned to the calculation of the amount of compensation
payable to the player by the club in the case at stake. In doing so, the Chamber firstly recapitulated
that, in accordance with art. 17 par. 1 of the Regulations, the amount of compensation shall be
calculated, in particular and unless otherwise provided for in the contract at the basis of the dispute,
with due consideration for the law of the country concerned, the specificity of sport and further
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objective criteria, including 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, and depending on whether the contractual breach falls within the protected
period.
45. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether
the pertinent employment contract contained a provision by means of which the parties had
beforehand agreed upon an amount of compensation payable by the contractual parties in the event
of breach of contract.
46. In this regard, the Chamber took note of the wording of article 16.2 of the contract, “Either party may
terminate this Agreement and the engagement by providing the other party no less than one month
written notice. The club may pay the Player one-month salary in lieu of the notice, or may place the Player
on garden leave during such period. The Player who has terminated his contract upon written notice shall
similar as the Club shall in all cases pay a similar compensation to the Club”.
47. After analysing the content of the aforementioned clause, the Chamber concluded that it was not, a
clear compensation clause since its wording refers all the time to the one-month notice to put an end
to the contract with only one reference to the word compensation at the end of the clause.
48. Therefore, the DRC established that the contract did not include a clear compensation clause.
49. As a consequence, the members of the Chamber determined that the amount of compensation
payable by the club to the player had to be assessed in application of the other parameters set out in
art. 17 par. 1 of the Regulations. The Chamber recalled that said provision provides for a nonexhaustive enumeration of criteria to be taken into consideration when calculating the amount of
compensation payable.
50. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded with the
calculation of the monies payable to the player under the terms of the contract from the date of its
unilateral termination (i.e. 10 December 2021) until its end date. Consequently, the Chamber
concluded that the amount of THB 1,135,492 (i.e. 21 days of December 2021 plus 5 months [from
January 2022 to May 2022]) serves as the basis for the determination of the amount of compensation
for breach of contract.
51. In continuation, the Chamber verified as to whether the player had signed an employment contract
with another club during the relevant period of time, by means of which he would have been enabled
to reduce his loss of income. According to the constant practice of the DRC as well as art. 17 par. 1 lit.
ii) of the Regulations, such remuneration under a new employment contract shall be taken into
account in the calculation of the amount of compensation for breach of contract in connection with
the player’s general obligation to mitigate his damages.
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52. In this respect, the Chamber acknowledged that the player was not able to found employment with
a new club since the unilateral termination of the contract.
53. At this stage, the Chamber emphasised that even if the Claimant would be, in principle, entitled to
receive the amount THB 1,135,492 as compensation for the breach of the contract by the club,
however the player limited its request to the amount of THB 933,330.
54. Subsequently, the Chamber took note of the Claimant´s request for THB 600,000 as additional
compensation based on art. 17 par. 1 lit. ii) of the Regulations, according to which a player is entitled
to an amount corresponding to three monthly salaries as additional compensation should the
termination of the employment contract at stake be due to overdue payables.
55. In the case at hand, the Chamber clarified that the contract termination took place not for overdue
payables, and therefore decided to reject the player´s request for additional compensation.
56. Consequently, on account of all of the above-mentioned considerations and the specificities of the
case at hand, the Chamber decided that the club must pay the amount of THB 933,330 to the player,
which was to be considered a reasonable and justified amount of compensation for breach of
contract in the present matter.
iii. Compliance with monetary decisions
57. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24 par. 1 and 2
of the Regulations , which stipulate that, with its decision, the pertinent FIFA deciding body shall also
rule on the consequences deriving from the failure of the concerned party to pay the relevant
amounts of outstanding remuneration and/or compensation in due time.
58. In this regard, the DRC highlighted that, against clubs, the consequence of the failure to pay the
relevant amounts in due time shall consist of a ban from registering any new players, either nationally
or internationally, up until the due amounts are paid. The overall maximum duration of the
registration ban shall be of up to three entire and consecutive registration periods.
59. Therefore, bearing in mind the above, the DRC decided that the Respondent must pay the full
amount due (including all applicable interest) to the Claimant within 45 days of notification of the
decision, failing which, at the request of the Claimant, a ban from registering any new players, either
nationally or internationally, for the maximum duration of three entire and consecutive registration
periods shall become immediately effective on the Respondent in accordance with art. 24 par. 2, 4,
and 7 of the Regulations.
60. The Respondent shall make full payment (including all applicable interest) to the bank account
provided by the Claimant in the Bank Account Registration Form, which is attached to the present
decision.
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61. The DRC recalled that the above-mentioned ban will be lifted immediately and prior to its complete
serving upon payment of the due amounts, in accordance with art. 24 par. 8 of the Regulations.
d. Costs
62. The Chamber referred to art. 25 par. 1 of the Procedural Rules, according to which “Procedures are
free of charge where at least one of the parties is a player, coach, football agent, or match agent”.
Accordingly, the Chamber decided that no procedural costs were to be imposed on the parties.
63. Likewise and for the sake of completeness, the Chamber recalled the contents of art. 25 par. 8 of the
Procedural Rules, and decided that no procedural compensation shall be awarded in these
proceedings.
64. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any of
the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Hamed Latif Bakhtiari, is partially accepted.
2.
The Respondent, Suphanburi FC, has to pay to the Claimant, the following amounts:
- Thai Baht (THB) 214,899 as outstanding remuneration and
- THB 933,330 as compensation for breach of contract without just cause.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated in the
enclosed Bank Account Registration Form.
5.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players if full payment (including
all applicable interest) is not made within 45 days of notification of this decision, the following
consequences shall apply:
1.
The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration the ban shall be of
three entire and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary Committee in
the event that full payment (including all applicable interest) is still not made by the end of the
three entire and consecutive registration periods.
6. The consequences shall only be enforced at the request of the Claimant in accordance with article 24
par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
7. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court
of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a party
within five days of the notification of the motivated decision, to publish an anonymised or a redacted
version (cf. article 17 of the Procedural Rules).
CONTACT INFORMATION
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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