Labour Disputes
Texto da decisão
REF FPSD-4976
Decision of the
Dispute Resolution Chamber
passed on 8 June 2022
regarding an employment-related dispute concerning the player Patrik
Bordon
BY:
Daan de Jong (The Netherlands)
CLAIMANT:
Patrik Bordon, Italy
Represented by Mohamad Hardika Aji
RESPONDENT:
Persik Kediri, Indonesia
Represented by Susanah Ng
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REF FPSD-4976
I.
Facts of the case
1.
On 10 February 2020, the Italian player Patrik Bordon (hereinafter: the Claimant) and the
Indonesian club Persik Kediri (hereinafter: the Respondent) concluded a “Memorandum of
Understanding regarding work contract of professional football player” (hereinafter: the
MoU).
2.
Article 2 of the MoU reads as follows:
“THIS MEMORANDUM OF UNDERSTANDING shall effective as from the signing hereof by THE
PARTIES and will terminate upon the signing of the Employment Agreement for Professional
Football Player by THE PARTIES no later than 21 February 2020 (subject the successful passing
of physical/health examination and verification of foreign players by PSSI
THE PARTIES have agreed that the contract value mutually agreed upon for 1 (one) League 1
Season 2020 shall be USD 60,000.”
3.
Article 12 of the MoU reads as follows:
“In case of any disputes , controversies, or differences between THE PARTIES under THIS
MEMORANDUM OF UNDERSTANDING, including, but not limited to the interpretation,
application, implementation, validity, breach o violation, o termination of THIS MEMORANDUM
OF UNDERSTANDING or such other terms and conditions of THIS MEMORANDUM OF
UNDERSTANDING ("the Dispute''), then THE PARTIES shall be obliged to endeavor to their fullest
extent to resolve and settle such disputes in amicable deliberation to reach a mutual
agreement within 30 (thirty) calendar days as from the time when either PARTY receives a
written notification regarding such dispute. If the amicable deliberation to reach mutual
agreement fails within the aforementioned prescribed period, then such disputes shall be
referred and resolved at District Court of the City of Kediri. Any decisions of judgments related
to any matters within the scope of this Article shall be final, binding, and uncontestable.”
4.
On 22 February 2020, the Respondent sent a notice to the Claimant on the following
terms:
“Cancellation of Memorandum of Agreement
(…) The results of the player’s medical health examination indicate that the player has an injury.
(…)
From this we concluded that we could not enter into an employment contract with Patrik
Bordon.
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Thus, the letter of cancellation of this memorandum of agreement was made and signed by
the parties so that the rights and obligations between the two parties have been completed
and will not lead to claim later”.
5.
On March 4, 2020, the Claimant returned to his country (Italy).
6.
On 26 July 2021, the Claimant sent a notice to the Respondent requesting compensation
for the alleged termination of contract without just cause.
7.
On 7 August 2021, the Respondent replied to the previous correspondence contesting
the Claimant’s allegations stating that the MoU was a pre-contract.
8.
The Claimant states that on 1 January 2021 he signed an employment contract with the
Italian club Tre Fiori.
II. Proceedings before FIFA
9.
On 28 January 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
10. According to the Claimant, he has carried out “all his obligations in accordance with the
provisions contained in the Contract which regulates the obligations of the players, namely,
among others, having been present and participating in training programs and other match
preparations based on instructions and orders from officials and/or other personnel
appointed by the club”.
11. The Claimant argues that the Respondent has obligations towards him, among others, to
pay the contract value for 1 (one) season in the amount of USD 60,000, house, car, and
insurance.
12. The Claimant filed the following requests for relief:
The Player respectfully submits that the DRC award the Player:
USD 60,000.00 (Sixty Thousand United States Dollars) as compensation for the Club's unilateral
breach of the Contract; and
The interest on the amounts above, according to the Article 104 of Swiss Civil Code (Part Five:
The Code of Obligations), as below:
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- February 2020 – February 2021: 5% x USD 60,000 = USD 3,000
- February 2021 – February 2022: 5% x USD 60,000 = USD 3,000
Total Interest = USD 6,000 (Six Thousand United States Dollars)
Plus 5% interest outstanding per annum from the respective due dates until the date of
effective payment made following the total amount.
b. Position of the Respondent
13. The Respondent submits that based on art. 22 of the Regulations, “there must be an
employment relationship demonstrable throught the execution of an employment contract
between the player and the club.”
14. In the view of the Respondent, the Claimant was aware that no employment relationship
existed given his long silence after departing from Indonesia on 5 March 2020. It was only
one (1) year and four (4) months later, that suddenly a demand for the performance of a
non-existent employment contract was made.
15. The Respondent submits that the Parties agreed to have disputes referred and resolved
at the District Court of the City of Kediri. The Respondent further submits that “this
exclusive jurisdiction clause favouring the District Court of the City of Kediri, coupled with the
chosen law being that of the Republic of Indonesia is conclusive evidence of the Parties’ true
intention to have their disputes settled outside FIFA”.
16. The Respondent contends that the MOU is merely a pre-contractual agreement which
merely outlines the intention of the Parties pending the outcome of the Claimant’s
medical test and the execution of a future employment contract should the Claimant
passed the test. As the Claimant failed the medical test, accordingly no future
employment contract was executed.
17. The Respondent sustains that “The MOU very clearly refers to a conclusion of a future
employment agreement upon the successful passing of the medical examination. Thus this
demonstrates that the MOU is not and was not intended to represent a definitive agreement”.
18. Subsidiarily, the Respondent argues that the compensation requested-being the salaries
under the MOU has been wrongly computed because the FAI decided that “all clubs
participating in League 1 and League 2 may reduce the monthly salaries payable to its players
to a maximum sum of 25% of the contractual sum. This salary reduction shall be applicable
for the months of April, May and June 2020”.
19. The Respondent concludes in summary that:
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-
-
-
There is no employment relationship between the Parties;
The MOU is merely a memorandum of understanding of the Parties intention to enter into
a future definitive employment contract once the Claimant passes the medical test;
The Claimant failed the medical test. Thus, no employment contract was executed;
The Respondent is within its legal rights to terminate the MOU as the Claimant had made
false statement about his physical health;
(In the alternative), the MOU lapsed on 21 February 2020 as no definitive employment
contract was entered into due to the Claimant’s failure in passing the medical test;
As there is no employment contract/relationship between the Parties, FIFA DRC has no
jurisdiction to adjudicate this claim;
(In the alternative) The Parties under the MOU had expressly agreed to the exclusive
jurisdiction of the District Courts in Kediri to adjudicate their disputes. As such, FIFA DRC
has no jurisdiction;
In the event FIFA DRC finds for an employment relationship and that the termination is
without just cause, the compensation requested ought to be reduced taking into account
the directive by FAI;
There is no basis to claim double interest;
20. The Respondent filed the following requests for relief:
Determine that no employment relationship exist;
Determine that it has no jurisdiction over this claim. Accordingly, to deem this claim
inadmissible;
(In the alternative if FIFA DRC determines it has jurisdiction) finds that the Respondent had
validly terminated the MOU due to the Claimant’s false representation as to his health;
(In the alternative if FIFA DRC determines it has jurisdiction and that the termination of the
MOU is invalid), finds the MOU to have automatically lapsed as the Claimant failed the medical
test and no employment contract was entered into by 21 February 2020;
(In the alternative if FIFA DRC determines it has jurisdiction and that the MOU has been
terminated without just cause), finds that the MOU is merely a pre-contract pending the
execution of a future definitive employment contract;
(In the alternative if FIFA DRC determines it has jurisdiction and that the MOU is in fact an
employment contract and terminated without just cause), recalculate the amount of
compensation payable;
Determine that Article 12bis of the RSTP do not apply
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
21. First of all, the Dispute Resolution Chamber (hereinafter also referred to as the Single
Judge) analysed whether he was competent to deal with the case at hand. In this respect,
it took note that the present matter was presented to FIFA on 28 January 2022 and
submitted for decision on 8 June 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.
22. Subsequently, the Single Judge referred to art. 2 par. 1 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), the Dispute Resolution
Chamber is in principle competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between an Italian player
and an Indonesian club.
23. Subsequently, the Single Judge 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), and
considering that the present claim was lodged on 28 January 2022, the August 2021
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
24. The Single Judge acknowledged that the Respondent contested the competence of FIFA’s
deciding bodies on the basis of clause 12 of the MoU, alleging that the competent body
to deal with any dispute deriving from the relevant contract are the courts of the city of
Kediri.
25. Taking into account all the above, the Single Judge emphasised that in accordance with
art. 22 par. 1 of the Regulations, FIFA is competent to hear employment-related disputes
between a player and a club with an international dimension “without prejudice to the right
of any player (…) or club to seek redress before a civil court for employment related disputes”.
26. In the present matter, the Single Judge duly noted that the Claimant and the Respondent
had unambiguously and exclusively decided that any dispute that would arise from the
contract would be submitted to the courts of the city of Kediri.
27. The Single Judge recalled that parties may freely agree to give jurisdiction to a civil court,
and that such choice shall always prevail. In fact, the Single Judge, recalling the
jurisprudence of the chamber as well as the CAS jurisprudence in this regard, highlighted
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that even if the choice of law does not specify which courts are competent (e.g. a generic
reference is made to a region/city), FIFA is not competent when the parties have
exclusively agreed upon the jurisdiction of a civil court. In addition, the Single Judge
emphasized that art. 22 par. 1 of the Regulations provides a clear hierarchy in favour of
contractual autonomy.
28. In view of all the above, the Single Judge concluded that he was not competent to hear
the dispute between the Claimant and the Respondent, and consequently declared the
claim inadmissible.
b. Costs
29. The Single Judge 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 Single Judge decided that no procedural costs
were to be imposed on the parties.
30. Likewise, and for the sake of completeness, the Single Judge recalled the contents of art.
25 par. 8 of the Procedural Rules and decided that no procedural compensation shall be
awarded in these proceedings.
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IV. Decision of the Dispute Resolution Chamber
1. The claim of the Claimant, Patrik Bordon, is inadmissible.
2. 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).
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