Labour Disputes
Texto da decisão
REF. FPSD-15333
Decision of the
Dispute Resolution Chamber
passed on 3 December 2024
regarding an employment-related dispute concerning the player Taiki
Kagayama
COMPOSITION:
Frans DE WEGER (The Netherlands), Chairperson
Tomislav KASALO (Croatia), Member
Dana MOHAMED AL-NOAIMI (Qatar), Member
CLAIMANT:
Taiki Kagayama, Japan
Represented by Sehyun Kim
RESPONDENT:
PSIS Semarang, Indonesia
pg. 2
REF. FPSD-15333
I. Facts of the case
1.
On 26 June 2024, the Japanese player, Taiki Kagayama (hereinafter: the Player or the
Claimant), and the Indonesian club, PSIS Semarang (hereinafter: the Club or the Respondent)
concluded an offer (hereinafter: the Offer Letter) through which the Club expressed its
interest in engaging the Player’s services.
2.
According to the Offer Letter, the Claimant and the Respondent (hereinafter jointly referred
to as the Parties) agreed on the following terms (quoted verbatim):
“PSIS Semarang Football Club (Club) is interested in engaging your services as a professional
footballer for the one season 2024-2025 Indonesian football competition (Liga 1).
We here by invite you to attend in [Semarang] to undertake a standard medical examination
latest by [July 1, 2024]. If you fail :
(a) to be present in Semarang by [June 31, 2024), we shall assume that you are not
interested in being employed by the Club;
(b) the standard medical examination as advised by the Club’s medical officer(s), the Club
shall not be obliged to engage in further negotiations with you nor conclude an employment
contract with you.
If you pass the standard medical examination as advised by the Club’s medical officer(s), you
and the Club shall negotiate the terms of your employment and conclude a final definitive
employment contract.
Without prejudice to its right to revise these terms, the Club proposes the following:
Term:
•From the commencement date until the end of the 2024-2025 Liga 1 Indonesia Competition
season
Contract Value:
•Indonesia Rupiah (IDR) Nine Hundred Million Rupiah (Rp. 900.000.000) in season 2024 –2025
Down Payment:
•Rp. 45.000.000 (50%) in the same month of arrival
•Rp. 45.000.000 (50%) in the second month
Salary:
•Rp. 81.000.000 / month (10 month)Bonus:
•Goal Rp. 5.000.000 (if team win) •Win Rp. 5.000.000 (if team win)
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REF. FPSD-15333
Others: (To be discussed further upon the successful completion of the standard medical
examination):
•one (1) come and return economy flight ticket for you (club will buy) •and simple apartment/
house for your life (subsidi Rp. 5.000.000 / month)
•visa for you
•operational Car
For the avoidance of doubt: it is not the intention of the Club that this Invitation Letter be
binding or treated as an employment contract.
This Invitation Letter is not a final contract nor does it represent the definitive agreement
between you and the Club. It does not create any employment relationship, nor does it bind
the Club in any way.
If you accept the invitation to undergo a standard medical examination, please return a
signed copy of this Invitation Letter by [June 26, 2024] to [email protected].
Failure to respond by the deadline shall render the invitation withdrawn.”
3.
In addition, the last page of the Offer Letter stated the following and bore the Player’s
signature (quoted verbatim):
“Player Acknowledgement
I acknowledge receipt of this Invitation letter.
I confirm that I understand that:
(i)
This Invitation Letter does not create any employment relationship not is it the final
definitive contract between myself and the Club;
(ii)
I must pass a standard medical examination to the Club’s satisfaction prior to
executing a written employment contract with the Club;
(iii)
The Club and I shall enter into an employment relationship only upon execution of a
written employment contract; and
(iv)
The terms of such written employment contract may deviate from those set out in this
Invitation Letter following further negotiations between myself and the Club.”
4.
On the same day, 26 June 2024, the Player accepted the Offer Letter and sent it back to the
Club signed.
5.
On 27 June 2024, the Player’s agent sent an email to the Club requesting the issuance of
the flight tickets so the Player could travel to Indonesia and complete his medical
examinations as per the Offer Letter. The email sent contains the flights that the Player
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REF. FPSD-15333
would have to take in order to arrive in Indonesia on 30 June 2024 as, according to the Offer
Letter, he had to complete the medical examinations before 1 July 2024.
6.
On 28 June 2024, the Player’s agent sent a new email to the Club requesting the change of
the departure time for one of the flights suggested in his previous email.
7.
On 29 June 2024, the Player’s agent contacted the Club via WhatsApp expressing their
concern regarding the lack of response from the Club. They further stated that the medical
examinations had to be concluded before the 1 July 2024 as agreed in the Offer Letter and
reiterated that the Player had signed the Offer Letter and “wants to make a successful deal
with PSIS Semarang.”
8.
The Club replied that “We are waiting for an answer from the director […]. Don’t worry when
Taiki has signed it is our basis that Taiki will definitely come. Regarding the date of arrival, it
adjusts to certain situations that are out of our control.”
9.
The next day, on 30 June 2024, the Player’s agent followed up via WhatsApp asking if the
documentation they provided for the visa is sufficient and which are the next steps.
10. The Club’s representative referred them to another person who was allegedly responsible
for the Player’s case.
11. The Player’s agent replied reiterating that they are worried about the lack of reply from the
Club and that the Player would not make it on time to Indonesia for the medical
examinations.
12. On 4 July 2024, a Club’s representative informed the Player that the Club wants to “cancel
the offer letter, because now it is very difficult.”
13. On the same day, the Player sent a letter to the Club stating that the Offer Letter had been
accepted and duly signed by the Player. In addition, the Player made reference to all the
correspondences that he had sent to the Club regarding his arrival to Indonesia in order to
timely complete his medical examinations, disputing the unilateral termination of the Club.
14. Finally, the Player requested explanations “of the player’s future schedule and plans by 24:00
Indonesian time on July 5, 2024. If there is no response regarding the player’s request by this
deadline, we will have no choice to file a complaint with FIFA.”
15. On 6 July 2024, the Player’s agent sent a second letter to the Club stating the above facts
and requesting the following:
“TAIKI KAGAYAMA and GLOBAL SPORTS PLUS declare that we don’t consider the
termination of contract and player will do his best for his contract obligations. We kindly
request to PSIS SEMARANG following the contract which has made between TAIKI
pg. 5
REF. FPSD-15333
KAGAYAMA and PSIS SEMARANG within 15 days from July 6, 2024.(From July 6, 2024until
July 212024, 12:00, Indonesian standard time, WIB).If there is no response regarding TAIKI
KAGAYAMA and GLOBAL SPORTS PLUS’s request by this deadline, we will officially file a
complaint to the Football Tribunal (DRC), FIFA.
In addition, we will request to the Football Association, the Players Association and related
media to prevent recurrence by making it public.
TAIKI KAGAYAMA and GLOBAL SPORTS PLUS still don’t want to terminate the contract. If
PSIS SEMARANG fulfills the terms of the contract, we are still confident of a good
relationship and success in the future. Therefore, we ask PSIS SEMARANG to make a right
decision about current situation.”
16. On 22 July 2024, the Player’s agent sent a termination letter to the Respondent reiterating
the facts and making reference to all the emails and reminders that were sent by the Player
since the signature of the Offer Letter.
17. On the same day, the the Player signed a new employment contract (hereinafter: the New
Contract) with the Swedish club GIF Sundsvall valid as from the date of the signature until
31 December 2026.
18. According to the New Contract, the Player’s monthly salary is as follows:
“2024: 40,000 swe kr brutto/ month
2025: 46,000 swe kr brutto/month
2026: 46,000 swe kr brutto/month”
II. Proceedings before FIFA
19. On 23 July 2024, the Player filed the claim at hand before FIFA. A summary of the parties’
position is detailed below.
a. Position of the Claimant
20. According to the Player, an employment relationship exists between the Parties. In
particular, the Player argued that the Offer Letter constituted a binding employment
contract since he accepted and signed it. Furthermore, the Player claimed that he made all
efforts to fulfil the conditions related to traveling to Indonesia and undergoing medical
examinations. However, he contended that he was unable to proceed with the travel due
to the Club’s failure to respond to his repeated emails.
21. Consequently, the Player alleged that the Club breached the contract and therefore, the
Player had just cause to terminate the contract.
pg. 6
REF. FPSD-15333
22. Finally, he alleged that the Club’s conduct had repercussions on his career as he rejected
other offers while waiting for the Club’s response.
23. The requests for relief of the Claimant, as amended, were the following:
“1. The Claim of the Claimant is accepted.
2. The contract between Respondent and Claimant is terminated with just cause and Respondent
shall pay compensation to the Claimant.
3. The Respondent, Psis Semarang, shall pay to the Claimant the following amount(s):
3.1 Indonesia Rupiah (IDR) Nine Hundred Million Rupia (Rp. 900,000,000) net as
compensation for the termination of contract without just cause plus 5% interest p.a. as from
22th July 2024 until the date of effective payment.
4. Claimant request Sporting sanctions on the club as the respondent’s breach of the FIFA
Regulations on the Status and Transfer of Player.”
b. Position of the Respondent
24. Firstly, the Club alleged that there is no employment relationship between the Parties as
the Offer Letter was merely an invitation of the Club to conclude in the future an
employment contract only if the Player successfully passes the medical examinations.
25. In continuation, the Club stated that it was aware that the employment contract cannot be
subject to a successful medical examination. Thus, it decided to sign the Offer Letter that
“was just an interim/ temporary document pending the Claimant’s medical test.”
26. In addition, the Club alleged that according to the Offer Letter, only after the successful
medical examination, the Club would have the obligation to arrange his flight tickets. In
other words, the Player was obliged to bear on his own cost the flight tickets to travel to
Indonesia to pass the medical tests and the Club did not have the obligation to buy his
flight tickets.
27. In this regard, the Club acknowledged that it received three letters from the Player that
they never responded to.
28. Consequently, according to the Club, since the Player never undertook the medical
examinations, the offer was never executed, and the Offer Letter expired on 26 June 2024.
29. The Club further disputed the DRC’s jurisdiction to entertain the claim since there is no
employment relationship between the Parties.
pg. 7
REF. FPSD-15333
30. However, the Club mentioned that in the case the DRC accepted jurisdiction and
determined that there was an employment relationship between the Parties, the Club
considered that the termination was without just cause, as it does not fall under arts. 14 or
14bis of the Regulations.
c. Comments of the Claimant
31. Despite being invited to do so, the Claimant did not provide his comments on the
Respondent’s reply.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
32. First of all, the Dispute Resolution Chamber (hereinafter: the 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 23 July 2024 and submitted for decision on 3
December 2024. Taking into account the wording of art. 34 of the March 2025 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.
33. In this regard, the Chamber 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 par. 1 lit. b) of the
Regulations on the Status and Transfer of Players (June 2024 edition), the Chamber is
competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a Japanese player and an Indonesian
club.
34. At this point, the Chamber noted that the Club challenged FIFA’s competence to hear the
case at hand, because there is no employment relationship between the Parties and
therefore it does not constitute an employment-related dispute under the scope of the
FIFA Regulations on the Status and Transfer of Players.
35. In this context, the Chamber recalled the well-established jurisprudence of the DRC and the
CAS according to which the notion of employment-related disputes includes a wider range
of disputes than just simply those arising out of employment agreements. Therefore, the
Chamber considered that it has jurisdiction to entertain the present claim that arose from
the conclusion of an employment offer in line with art. 22 par. 1, lit. b) of the FIFA
Regulations on the Status and Transfer of Players.
36. 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 (June 2024 edition), and
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REF. FPSD-15333
considering that the present claim was lodged on 23 July 2024, the June 2024 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
37. 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 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
38. Having established the competence and the applicable regulations, the Chamber entered
into the merits of the dispute. In this respect, the Chamber started by acknowledging all
the above-mentioned 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
assessing the matter at hand.
i. Main legal discussion and considerations
39. The Chamber then moved to the substance of the matter, and took note that the Parties
strongly dispute whether the Offer Letter constituted an employment contract or not. On
the one hand, the Claimant argued that the Offer Letter constituted an employment
contract. As the contract was never executed because of the Respondent’s behavior, the
Claimant argued that he terminated the contract with just cause. On the other hand, the
Respondent alleged that the Offer Letter clearly stipulated that it did not constitute an
employment contract and therefore, no employment relationship existed between the
Parties.
40. In this regard, the Chamber reiterated the following undisputed facts:
•
The Club sent an offer to the Player which included all the essential elements of an
employment contract and also provided that “This Invitation Letter is not final contract
nor does it represent the definitive agreement between you and the Club. It does not
create any employment relationship, nor does it bind the Club in any way”.
•
On the same date, the Player accepted the Offer Letter and sent the signed letter
back to the Club.
pg. 9
REF. FPSD-15333
•
The Player sent various emails to the Club asking for the arrangement of his flights
in order to timely arrive in Indonesia and pass the medical tests (the emails were
sent on 27, 28 June, 4 and 6 July 2024);
•
The Club never replied to the Player’s emails;
•
The Player was informed via WhatsApp that the Club was no longer interested in his
services;
•
The Player never travelled to Indonesia.
41. In this context, the Chamber acknowledged that its task was to determine whether the
Offer Letter constituted a valid and binding employment contract and the consequences
herein.
42. In view of the above, the Chamber first assessed whether the Offer Letter contained the
essentiala negotii. For that reason, the Chamber recalled that the established case law of
the DRC dictates that, in order for an employment contract to be considered valid and
binding, in addition to the consent of the employer and the employee, it must contain the
essential elements (essentiala negotii) of an employment contract, i.e. the parties to the
contract and their function, the duration of the employment relationship and the
remuneration to be paid by the employer to the employee.
43. In the case at hand, the Chamber considered that the Offer Letter clearly established all
the essential elements and had also been duly signed and accepted by the Player within
the deadline given by the Club.
44. Notwithstanding the above, the Chamber made reference to the wording of the Offer
Letter that clearly stipulated that it did not constitute an employment contract and that the
Parties would have to engage in further negotiations after the Player successfully passes
the medical tests in order to conclude an employment contract. In this respect, the DRC
observed that on the last page of the Offer (under “Player Acknowledgment”) the Player
confirmed that the terms of the written employment contract may deviate from those set
out in the Offer letter following further negotiations between him and the Club.
45. In particular, the Chamber pointed out the Offer Letter stated that it “does not create any
employment relationship nor is it the final definitive” and that “for the avoidance of doubt: it is
not the intention of the Club that this Invitation Letter be binding or treated as an employment
contract. This Invitation Letter is not a final contract nor does it represent the definitive
agreement between you and the Club. It does not create any employment relationship, nor does
it bind the Club in any way.”
46. Consequently, based on the specific circumstances of the case, the Chamber concluded
that the Offer Letter did not constitute a valid and binding employment contract as the
pg. 10
REF. FPSD-15333
Parties had clearly established in writing that this document shall not be considered an
employment contract.
47. Nevertheless, the Chamber took note of the behavior of the Parties and in particular the
way the negotiations, which were already quite advanced, were interrupted and ultimately
abandoned.
48. The Chamber began by observing that the Offer Letter could be understood as signalling
to the contractual parties that they each intended to move forward with the Player’s signing
and, indeed, had already reached an understanding on some of the main terms of the
employment relationship, as evidenced by the detailed terms of the Offer Letter and the
Player’s acquiescence.
49. Nonetheless, the Chamber observed that the Offer Letter was not necessarily the final
agreement between the parties, as it stated that “the Club shall not be obliged to engage in
further negotiations with you nor conclude an employment contract with you” unless the
following conditions were met:
•
“to be present in Semarang by [June 31, 2024), we shall assume that you are not interested
in being employed by the Club”;
•
to successfully pass the medical exams.
50. In any case, the Chamber observed that the Player technically did not fulfil the above
conditions. However, it is equally true that, upon sending his acceptance of the Offer Letter,
the Player diligently sent multiple emails to the Club asking for the arrangement of his flight
in order to pass the medical exams and fulfil the above conditions.
51. The Chamber took note that the Club acknowledged that it did not respond to any of the
Player’s emails or notices while arguing that the Player failed to appear at the Club for the
medical tests. Additionally, the Chamber noted that the Club asserted that it was not
obligated to arrange the Player’s flight tickets, as per the terms of the Offer Letter, which
stipulated that the obligation to provide flight tickets would arise only after the Player
successfully completed the medical examination.
52. In this respect, the Chamber took into account that based on the Offer Letter, the Club did
not have the obligation to arrange the Player’s flights. However, the Chamber considered
that the Player could not have reasonably been expected to travel to Indonesia on his own
without having heard anything from the Club for over a week following the acceptance of
the Offer Letter. Furthermore, the Chamber reasoned that the Club could not invoke its
own turpitude (namely, its inaction and silence after the Player accepted the Offer Letter),
especially in the face of the Player’s multiple follow-ups with the Club, in order to sustain
that the Player did not fulfil the conditions stipulated in the Offer Letter of arriving at the
Club and successfully passing a medical exam and that, therefore, this exempted the Club
from any liability whatsoever.
pg. 11
REF. FPSD-15333
53. In this regard, the Chamber remarked that, despite the advanced stage of the negotiations,
the Club suddenly and without warning withdrew the Offer Letter by merely sending a text
on WhatsApp saying “now is very difficult,” without providing any additional explanation or
offering any other reasons that might have justified its breaking off communication with
the Player and abandoning the operation.
54. In view of the above, the Chamber concluded that the negotiations were abruptly
terminated by the Club at an advanced stage and the Club refused to conclude an
employment contract without providing any reasons for this decision. Additionally, the
Player concluded an employment contract with a new club with a lower monthly salary
than the one that was offered by the Club. Therefore, having in mind that parties carry a
mutual duty of care when negotiating a contract, the Chamber considered it just and fair
that the Club shall compensate the Player. Consequently, taking into account the
exceptional circumstances of the present matter and in particular, due to the Club's
behaviour and its abrupt interruption and subsequent abandonment of the negotiations,
as well as the significant difference between the salary that the Player was supposed to
earn with the Club (total value Rp. 900,000,000/ USD 56,700) and the salary due on the
basis of the New Contract (Rp. approx. 535,500,000/ USD 33,780), the Chamber considered
that the Player shall be compensated and awarded the equivalent of one month's salary
under the terms of the Offer Letter (Rp. 81,000,000).
55. Lastly, taking into consideration the Player’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the Player interest on said
compensation at the rate of 5% p.a. as of 22 July 2024 until the date of effective payment.
ii. Compliance with monetary decisions
56. 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.
57. 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.
58. 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
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REF. FPSD-15333
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.
59. 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.
60. 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
61. 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.
62. 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.
63. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 13
REF. FPSD-15333
IV. Decision of the Dispute Resolution Chamber
1.
The Football Tribunal has jurisdiction to hear the claim of the claimant, Taiki Kagayama.
2.
The claim of the Claimant, Taiki Kagayama, is partially accepted.
3.
The Respondent, PSIS Semarang, must pay to the Claimant the following amounts:
- Rp. 81,000,000 as compensation plus 5% interest p.a. as from 22 July 2024 until the date
of effective payment.
4.
Any further claims of the Claimant are rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
6.
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.
7.
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.
8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 14
REF. FPSD-15333
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
Fédération Internationale de Football Association – Legal & Compliance Division
396 Alhambra Circle, 6th floor, Coral Gables, Miami, Florida, USA 33134
legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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