Labour Disputes
Texto da decisão
REF. FPSD-11759
Decision of the
Dispute Resolution Chamber
passed on 22 November 2023
regarding an employment-related dispute concerning
the player Youssef Ezzejjari Lhasnaoui
BY:
Sihon Gauci (Malta), Single Judge
CLAIMANT:
Youssef Ezzejjari Lhasnaoui, Spain
Represented by Alejandro Pascual Madrid
RESPONDENT:
Club Khonkaen United, Thailand
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REF. FPSD-11759
I. Facts of the case
1.
On 1 January 2023, the Spanish player Youssef Ezzejjari Lhasnaoui (hereinafter: the
Claimant) and the Thai club Khonkaen United (hereinafter: the Respondent) signed an
employment contract (hereinafter: the Contract).
2.
According to art. 3 of the Contract, this would be effective “from the date 1 January 2023 to
31 May 2023, the date specified by FA Thailand as the end of season 2022/2023 of Thai League
1 or subject to any earlier termination with just cause pursuant to the terms of this contract”.
3.
In accordance with the Contract, the Respondent undertook to pay to the Claimant inter
alia:
“A. Monthly Salary 350,000 Thai Baht Net.
B. Signing on fee + Agent on fee 350,000 Thai Baht Net.
C. Should you be able to score in a football match, You will receive a bonus of 5,000
(Five thousand baht) per goal.
D. Should you be able to assist in a football match, You will receive a bonus of 5,000
(Five thousand baht) per goal.
E. Accommodation
F. A car during the contract period (…)”
4.
By correspondence dated 21 August 2023, the Claimant put the Respondent in default of
payment of THB 196,114.20 and granted a deadline of 10 days in order to remedy the
default.
5.
On 5 September 2023, the Claimant sent a second reminder to the Respondent, granting
five further days to pay, to no avail.
II. Proceedings before FIFA
6.
On 12 September 2023 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
7.
According to the Claimant, the Respondent failed to comply with its financial obligations
under the Contract, namely by failing to pay the salary related to the month of May 2023
as well as the bonus per goal scored by the Claimant in a match of the Thai League during
the relevant season 2022/2023.
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REF. FPSD-11759
8.
In particular, the Claimant argued that the Respondent unlawfully pro-rated the salary due
for May 2023 and failed to provide any response to the Claimant’s default notices.
9.
The requests for relief of the Claimant, accordingly, were the following:
-
“THB 191,114.2 net as outstanding remuneration.
THB 5,000 net as outstanding bonus.
5% interest p.a. on both sums as from 31 May 2023.
Order the Club (the Respondent) to provide the [the Claimant] with the relevant tax
certificates”.
b. Position of the Respondent
10. In its reply, the Respondent argued that pursuant to the Contract, the effective duration of
the employment relationship had been made subject to the actual end date of the Thai
League in case this would have occurred earlier than 31 May 2023.
11. Accordingly, the Respondent stated that having the relevant competition ended in the case
at stake on 12 May 2023, the Claimant would be entitled only to half of the salary due for
the month of May 2023, for a total of THB 175,000.
12. Furthermore, the Respondent held having had to deduct a total of THB 16,114 from the
Claimant’ last salary as the car provided by the Respondent to the Claimant had been
allegedly damaged by the latter, hence in the Respondent’s opinion the final amount to be
paid to the Claimant had to be reduced to THB 158,885.80.
13. In this respect, the Respondent stated having paid said amount to the Claimant in cash, on
16 May 2023, hence it argued carrying no further debts towards the Claimant and
demanded to reject the latter’s claim in its entirety.
c. Claimant’s rejoinder
14. In reply to the Respondent’s arguments, the Claimant stated that, having the parties
contractually agreed that their employment relationship would end on 31 May 2023, the
payment of the salary due for May 2023 could not be pro-rated, regardless of the actual
end date of the relevant competition.
15. In this context, the Claimant’s rebutted the Respondent’s interpretation of the Contract as
subjecting the expiry of the employment relationship to the actual end date of the Thai
League and insisted on preserving the literal content of the relevant contractual provision.
16. In continuation, the Claimant objected to the deductions operated by the Respondent in
relation to the damages allegedly caused by the Claimant to the car contractually provided
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REF. FPSD-11759
by the former, arguing that the Respondent did not mention the existence of such damages
until being notified the claim and contextually denied having ever signed the documents
produced by the Respondent as evidence of the alleged payment.
17. Conversely, the Claimant contested the authenticity of the said documents, holding that
these were farfetched in order to operate an unlawful discount on the Claimant’ last salary.
18. In support of his position, the Claimant also provided the result of metadata analysis
conducted on the evidence submitted by the Respondent, according to which the relevant
files would have been created only on 10 October 2023, i.e., months after the alleged date
of emission.
19. Furthermore, the Claimant argued that any potential internal damage suffered by the car
shall be deemed as related to its normal use by the Claimant, hence the Respondent shall
bear the relevant costs in any case.
20. Finally, the Claimant denied having been paid any part of his remuneration in cash by the
Respondent, thus upholding being entitled to receive his salary for May 2023 in full plus
the relevant bonus per goal as contractually agreed.
d. Respondent’s final submissions
21. In its final statement, the Respondent insisted on its interpretation of the Contract as
alternatively ending on 31 May 2023 or on the last day of the competition in Thailand,
whichever came first, hence having this occurred on 12 May 2023, the Respondent argued
being entitled to pro-rate the Claimant’ salary of May 2023.
22. Furthermore, with regard to the deductions operated on the Claimant’ salary for car
repairing, the Respondent argued that the Contract did not establish the latter’s liability to
cover any potential damage suffered by the vehicle but rather to merely provide the
Claimant with it, hence in the Respondent’s view, all the expenses connected with the
relevant repairs shall be borne by the Claimant only.
23. In conclusion, the Respondent requested the claim be rejected in its entirety.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
24. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as the Single Judge) analysed whether she was competent to deal with the case at hand.
In this respect, she took note that the present matter was presented to FIFA on 12
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REF. FPSD-11759
September 2023 and submitted for decision on 22 November 2023. Taking into account
the wording of art. 34 of the March 2023 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.
25. 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 May 2023 edition), the Single Judge of the
Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns
an employment-related dispute with an international dimension between a Spanish player
and a Thai club.
26. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, she confirmed that, in accordance with art. 26 par.
1 and 2 of the Regulations on the Status and Transfer of Players (May 2023 edition), and
considering that the present claim was lodged on 12 September 2023, the aforementioned
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
27. The Single Judge 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 the respective burden of proof. Likewise, the Single Judge
stressed the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which she may
consider evidence not filed by the parties, including without limitation the evidence
generated by or within the Transfer Matching System (TMS).
c. Merit of the dispute
28. The competence and the applicable regulations having been established, the Single Judge
entered into the merit of the dispute. In this respect, the Single Judge started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Single Judge emphasised that in the following
considerations she will refer only to the facts, arguments and documentary evidence,
which she considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
29. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the parties strongly dispute the existence of
outstanding amounts in favour of the Claimant.
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REF. FPSD-11759
30. In particular, the Single Judge observed that according to the Respondent the effective
duration of the Contract would be subject to the actual end date of the Thai League for the
season 2022/2023, which in casu occurred on 12 May 2023, hence the Respondent alleged
that having the relevant season been concluded before the end of May 2023, the Claimant’
salary related to said month should be paid pro-rata, i.e., for 12 days only.
31. In this respect, the Single Judge noted that the Claimant conversely argued that the wording
of the Contract would be clear in setting the actual end date of the employment
relationship between the parties on 31 May 2023, thus entitling the Claimant to receive the
relevant salary in full.
32. In this context, the Single Judge wished to emphasize that according to a common principle
of law, when interpreting a contract or a clause, the judging body shall first adhere to its
literal content, giving the words their natural and ordinary meaning together with the
principles of good faith and true intention of the parties.
33. With the above in mind, the Single Judge was of the opinion that, in the case at stake, the
relevant clause of the Contract has been drafted in an unequivocal manner to the extent
that its interpretation results clear and without room for any further alternative conclusion,
setting the expiry of the Contract on 31 May 2023 and therefore imposing on the
Respondent the burden of paying in full the Claimant’ salary related to the mentioned
month.
34. Moreover, the Single Judge wished to point out that the above interpretation appears in
line with the information contained in the FIFA TMS, according to which the end date of the
season 2022/2023 was set by the Football Association of Thailand on 31 May 2023.
35. With the foregoing in mind, the Single Judge emphasized that although the payment of the
relevant Claimant’s salary by the Respondent would appear, in principle, due in full, the
Single Judge shall however resolve the issue of the deductions that the Respondent alleged
having made from the salary owed to the Claimant in order to cover the damage suffered
by the car provided to the latter.
36. In this respect, the Single Judge assessed that the Contract does not assign any specific
liability to the parties except for the Respondent’s duty to provide the Claimant with a
vehicle. Accordingly, and regardless of the effective authenticity of the documents
produced by the Respondent and contested by the Claimant, the Single Judge was of the
opinion that the Respondent shall nonetheless bear the relevant expenses incurred and
apparently related to the normal use of the car by the Claimant.
37. In this context, the Single Judge wished also to emphasize that she did not overlook the
document produced by the Respondent as alleged evidence of the payment by the latter
of the Claimant’s salary after the aforementioned deductions, however, the Single Judge
noted that the said document appears merely similar to a balance statement drafted by
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REF. FPSD-11759
the Respondent rather than an actual payment receipt and, most importantly, it does not
carry any signature by the parties, hence, in the Single Judge opinion, any further
speculation regarding its validity would be moot.
38. As a consequence, the Single Judge decided to reject all the objections put forward by the
Respondent and confirmed that the latter shall pay in full the Claimant’s salary related to
the month of May 2023.
39. Finally, with regard to the bonus for goal claimed by the Claimant, the Single Judge noted
that the Respondent failed to dispute it, while the Claimant zealously specified in which
match the said bonus had been matured, hence the Single Judge acknowledged the
existence of the relevant sum as outstanding in favor of the Claimant in line with the
Contract.
40. In view of the above considerations, and in accordance with the general legal principle of
pacta sunt servanda, the Single Judge decided that the Respondent is liable to pay to the
Claimant the amounts which result outstanding under the Contract, i.e., THB 196,114.20.
41. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Football Tribunal in this regard, the latter decided to award the Claimant interest at
the rate of 5% p.a. on the outstanding amounts as from 31 May 2023 until the date of
effective payment.
42. Finally, the Single Judge wished with regards to the request for production of the relevant
tax certificates by the Respondent, that such request lacked contractual basis, and thus it
must be rejected. Nonetheless, the Single Judge highlighted that the sums due by the
Respondent to the Claimant as established in the present decision shall be paid net of any
tax as in accordance with the Contract.
ii. Compliance with monetary decisions
43. Finally, taking into account the applicable Regulations, the Single Judge referred to art. 24
par. 1 and 2 of the Regulations, which stipulate that, with her 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.
44. In this regard, the Single Judge 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.
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REF. FPSD-11759
45. Therefore, bearing in mind the above, the Single Judge 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.
46. 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.
47. The Single Judge recalled that the above-mentioned ban will be lifted immediately and prior
to her complete serving upon payment of the due amounts, in accordance with art. 24 par.
8 of the Regulations.
d. Costs
48. 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.
49. 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.
50. Lastly, the Single Judge concluded her deliberations by rejecting any other requests for
relief made by any of the parties.
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REF. FPSD-11759
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Youssef Ezzejjari Lhasnaoui, is partially accepted.
2.
The Respondent, Khonkaen United, must pay to the Claimant the following amount(s):
THB 191,114.2 net as outstanding remuneration plus 5% interest p.a. as from 31 May
2023 until the date of effective payment;
THB 5,000 net as outstanding bonus plus 5% interest p.a. as from 31 May 2023 until
the date of effective payment;
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 of the ban shall
be of up to 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 art. 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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REF. FPSD-11759
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 Governing the Football
Tribunal).
CONTACT INFORMATION
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