Dispute Resolution Chamber
Texto da decisão
REF FPSD-1867
Decision of the
Dispute Resolution Chamber
passed on 03 June 2021
regarding an employment-related dispute concerning the player Marc Anthony Klok
COMPOSITION:
Clifford J. Hendel (USA & France), Deputy Chairman
Mohamed Muzammil (Singapore), member
Stefano Sartori (Italy), member
CLAIMANT:
Marc Anthony Klok, Netherlands
Represented by Mr. Pieter Johannes Puk
RESPONDENT:
PSM Makassar, Indonesia
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REF FPSD-1867
I.
FACTS OF THE CASE
1.
On 12 December 2018, the Dutch player, Mr. Marc Anthony Klok (hereinafter: the player
or the Claimant), and the Indonesian club, PSM Makassar (hereinafter: the club or the
Respondent), signed an employment agreement valid as from 1 January 2019 until 31
December 2023 (hereinafter: the employment agreement).
2.
In accordance with the supplementary provisions of the employment agreement, the club
undertook to pay the player, inter alia, the following amounts:
a. 2019 season: the total amount of USD 164,000 corresponding to a monthly salary of
USD 12,000 plus a sign-on fee of USD 20,000, payable until the end of the season;
b. 2020 season: the total amount of USD 180,000 corresponding to a monthly salary of
USD 12,000 plus a down payment of USD 36,000, payable on 1 November 2019;
c. 2021 season: the total amount of USD 228,000 corresponding to a monthly salary of
USD 15,000 plus a down payment of USD 48,000, payable on 1 November 2020;
d. 2022 season: the total amount of USD 240,000 corresponding to a monthly salary of
USD 15,000 plus a down payment of USD 60,000, payable on 1 November 2021;
e. 2023 season: the total amount of USD 240,000 corresponding to a monthly salary of
USD 15,000 plus a down payment of USD 60,000, payable on 1 November 2022;
f. In any event, performance bonus of USD 1,000 per match won and of USD 500 per
draw.
3.
On 5 February 2020 and after the exchange of default notices and text messages regarding
outstanding payments, the same parties concluded a settlement agreement in order to
terminate their employment relationship by mutual consent (hereinafter: the settlement
agreement).
4.
In accordance with item c) of the recitals established in the settlement agreement, by the
time of the termination, the player remained entitled to receive from the club the total
amount of USD 880,000, as follows:
a. USD 648,000 corresponding to his salaries from January 2020 to December 2023; and
b. USD 196,000 corresponding to the yearly sign-on fees from seasons 2020 to 2023.
5.
Additionally, by means of clause 2 of the settlement agreement, the club undertook to pay
the player USD 25,000 on 31 March 2020, as a “full and final statement of its obligations”
under the employment agreement.
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6.
Furthermore, clauses 3, 4 and 5 of the settlement agreement established the following:
“3. If the club fails to make any payment instalment to the player of the settlement amount
in the time and manner prescribed in clause (2) of this agreement, and continues to do so
after the player has given the club 14 days’ notice in writing, the balance of the Residual
Contract Value shall become immediately due and payable by the club to the player.
4. The club agreed that if the balance of the Residual Contract Value becomes due and
payable under clause (3) of this agreement, the club shall be required to pay 10% interest
per annum on this amount from the date upon which it becomes payable to the date of
effective payment.
5. If, under the provision of clause (3), the balance of the Residual Contract Value due to
the player remains outstanding (including the applicable interest under clause (4) of this
agreement), the player may, without prejudice to his right to refer the matter to the civil
courts, immediately refer the club’s breach of this agreement to the FIFA Dispute Resolution
Chamber (DRC) for enforcement in accordance with the FIFA Regulations on the Status
and Transfer of Players (RSTP). The club shall not challenge the jurisdiction of the DRC to
hear the matter and enforce this agreement. The club acknowledges and agrees that it
shall be liable to pay any costs reasonably incurred by the player in enforcing this
agreement, including legal costs”.
7.
In June, July and October 2020, the player exchanged Whatsapp messages with the club’s
representative, Mr. Arifuddin (hereinafter: Mr. Arifuddin), regarding the outstanding
monies.
8.
On 12 June 2020, the player sent the club a default notice and granted it with a 14 days’
deadline in order to proceed the payment of USD 25,000 (i.e. until 29 June 2020). In the
same opportunity, the player wrote the following to the club: “if [the club] fails to make
this payment, we are forced to claim the full balance of the residual employment
agreement, USD 880.000 – at FIFA DRC”.
9.
On 28 June 2020, the player sent Mr. Arifuddin a reminder of his payment. In response,
Mr. Arifuddin informed that the club would proceed the payment until 3 July 2020, under
penalty of accepting the player’s claim before FIFA.
10.
On 30 June 2020, the player notified the club the he did not receive any reply nor the
relevant payment within the deadline previously granted. Consequently, the player
informed that he would lodge a claim before the FIFA Dispute Resolution Chamber.
11.
On 6 January 2021, the player sent the club another default notice stating, inter alia, the
following:
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“Due to the financial impact of the COVID-19 crisis, the player agreed to help the club with
a spread in two instalments, one to be made within 10 days, received by the player on 7
July 2020 and another one scheduled for 1 October 2020. Despite the several reminders,
the player never received the second instalment, nor the club replied to the player’s phone
calls, text messages emails anymore. Therefore I must conclude that the club fails again to
pay the outstanding payables, the second instalment and thus the player did not [receive]
his total settlement amount of USD 25.000”.
12.
In light of the above, the player granted the club with a 15 days’ deadline (i.e. until 22
January 2021) in order to proceed the payment of the remaining USD 15,000, under penalty
of the full balance of the residual employment agreement becoming immediately due.
13.
On 5 February 2021, the player sent the club a final notice informing that he did not receive
the outstanding amounts and requesting the payment of the same USD 15,000 to be made
until 11 February 2021.
II.
PROCEEDINGS BEFORE FIFA
14.
On 24 February 2021, the player filed the claim at hand before FIFA requesting, inter alia,
the following amounts:
a. USD 947,500 as outstanding remuneration, corresponding to the residual value of the
employment agreement (i.e. USD 880,000), accrued by an average performance bonus
per season (i.e. USD 70,000) and reduced by the amount already paid by the club (i.e.
USD 10,500);
b. EUR 7,260 as reimbursement of the legal costs; and
c. USD 94,750 as interest on the outstanding remuneration.
15.
In his claim, the player held that, in spite of the several attempts to solve the dispute
amicably, the club repeatedly failed to comply with its financial obligations and, hence, that
it is “in breach with art. 12bis of the FIFA RSTP”.
16.
In light of the above, the player argued that he is entitled to the full balance of the
employment agreement (in accordance with clause 3 of the settlement agreement).
17.
In addition, the player also claimed that the club should pay him an average bonus per
season amounting to USD 17,500, calculated on the basis of the results obtained in the
previous seasons
18.
Finally, the player also requested the reimbursement of his legal costs in the amount of EUR
7,260 and 10% annual interest supposedly amounting to USD 94,750, in accordance with
clauses 3, 4 and 5 of the settlement agreement.
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19.
In spite of being invited to do so, the club did not file any reply to the player’s claim.
III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
Competence and applicable legal framework
20.
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 24 February 2021 and
submitted for decision on 3 June 2021. Taking into account the wording of art. 21 of the
January 2021 edition of the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the
aforementioned edition of the Procedural Rules is applicable to the matter at hand.
21.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules
and observed that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of
the Regulations on the Status and Transfer of Players (edition February 2021), 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 Dutch player and
an Indonesian club.
22.
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 Player (edition February 2021), and
considering that the present claim was lodged on 24 February 2021, the February 2021
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b.
Burden of proof
23.
The Chamber recalled the basic principle of burden of proof, as stipulated in art. 12
par. 3 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 DRC stressed the
wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties.
24.
In this respect, the Chamber also recalled that in accordance with art. 6 par. 3 of Annexe 3
of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence generated
or contained in TMS.
c.
Merits of the dispute
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25.
The competence of the DRC and the applicable regulations having been established, the
DRC entered into the merits of the dispute. In this respect, the DRC started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC 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
26.
The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact the parties signed a settlement agreement in order to establish
the amounts that should be paid by the club to the player as a result of the premature
termination of their employment relationship.
27.
In this context, the DRC specifically observed that the club acknowledged owing the player
the residual value of the employment agreement amounting to USD 880,000; however, the
DRC also noted that, in accordance with clause 2 of the settlement agreement, the parties
agreed that such debt would be liquidated upon the payment of USD 25,000 until 31 March
2020. In addition, the Chamber also noted that the parties expressly stipulated that if such
payment was not delivered on time, the historical amount of the debt would become due,
subject to the receipt of a 14 days’ notice.
28.
Having established the above, the Chamber turned their attention to the evidence on file
and observed that the club, for its part, failed to present its response to the claim of the
player, in spite of having been invited to do so. In this way, the DRC considered that the
club renounced its right to defence and thus accepted the allegations of the player.
29.
Furthermore, as a consequence of the aforementioned consideration, the DRC concurred
that in accordance with art. 9 par. 3 of the Procedural Rules, it shall take a decision upon
the basis of the documents already on file, in other words, upon the statements and
documents presented by the player.
30.
By doing so, the members of the Chamber highlighted that the player put the club in default
in several opportunities (i.e.12 and 30 June 2020, 6 January and 5 February 2021), to no
avail. What is more, the DRC was eager to determine that almost one year elapsed since
the expiry of the deadline specified by the parties, however that the club has only made a
partial payment of USD 10,500 on 7 July 2020.
31.
In light of the above, the DRC was of the opinion that the wording of the settlement
agreement was clear and unequivocal and thus does not need any interpretation (in claris
non fit interpretation). Consequently, by delaying the payment provided for in clause 2 of
such contract, the members of the Chamber unanimously decided that the consequences
described in clauses 3 and 5 were triggered and, hence, that the club should be liable to
pay the player the outstanding amount of USD 869,500 (i.e. USD 880,000 minus USD
10,500).
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32.
In continuation, the members of the Chamber addressed the player’s request regarding the
average bonuses for performance. In this respect, the DRC wished to outline that payments
linked to matches to be played in the future, i.e. after the termination of the relevant
employment agreement, were fully hypothetical and thus speculative – apart from not
having been included in the settlement agreement. Accordingly, the members of the
Chamber concurred that the player’s argumentation in this regard could not be upheld.
33.
Furthermore, as to the claimed legal costs, the Chamber referred to art. 18 par. 4 of the
Procedural Rules as well as to its well-established jurisprudence, in accordance with which
no procedural compensation shall be awarded in proceedings in front of the Dispute
Resolution Chamber. Thus, the player’s request on this matter was also unanimously
rejected by the members of the DRC.
34.
Finally, the DRC recalled the content of clause 4 of the settlement agreement, which set
forth: “[…] if the balance of the Residual Contract Value becomes due and payable under
clause (3) of this agreement, the club shall be required to pay 10% interest per annum on
this amount from the date upon which it becomes payable to the date of effective
payment”.
35.
Accordingly, the members deemed that the interest’s parameter fixed by the parties is both
reasonable and proportional in accordance with the Chamber’s longstanding jurisprudence.
What is more, the DRC determined that such interest should arise as from the 15th day of
the first default notice sent by the player to the club after the payment became due (i.e. 27
June 2020).
36.
Based on the abovementioned considerations and in line with the general legal principle of
pacta sunt servanda, the DRC unanimously concluded that the claim of the player shall be
partially accepted and, hence, that the club shall pay the player the total amount of USD
869,500 as outstanding remuneration, plus 10% interest p.a. on said amount as from 27
June 2020 until the date of effective payment.
ii. Art. 12bis of the Regulations
37.
In continuation, the DRC referred to art.12bis par. 2 of the Regulations, which stipulates
that any club found to have delayed a due payment for more than 30 days without a prima
facie contractual basis may be sanctioned in accordance with art. 12bis par. 4 of the
Regulations.
38.
To this end, the DRC confirmed that the player put the club in default of payment of the
amounts sought, which had fallen due form more than 30 days, and granted the club with
10 days to cure such breach of contract.
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39.
Accordingly, the Chamber confirmed that the club had delayed a due payment without a
prima facia contractual basis. It followed that the criteria enshrined in art. 12bis of the
Regulations was met in the case at hand.
40.
The DRC further established that by virtue of art. 12bis par. 4 of the Regulations it has
competence to impose sanctions on the club. On account of the above and bearing in mind
that this is the first offense by the club within the last two years, the DRC unanimously
decided to impose a warning on the club in accordance with art. 12bis par. 4 lit. a) of the
Regulations.
41.
In this connection, the members of the Chamber highlighted that a repeated offence will
be considered as an aggravating circumstance and lead to more severe penalty in
accordance with art. 12bis par. 6 of the Regulations.
iii. Compliance with monetary decisions
42.
Finally, the Chamber referred to par. 1 lit. a) and 2 of art. 24bis 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.
43.
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.
44.
Therefore, bearing in mind the above, the DRC decided that the club must pay the full
amount due (including all applicable interest) to the player within 45 days of notification of
the decision, failing which, at the request of the player, 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 club in
accordance with art. 24bis par. 2, 4, and 7 of the Regulations.
45.
The club shall make full payment (including all applicable interest) to the bank account
provided by the player in the Bank Registration Form, which is attached to the present
decision.
46.
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. 24bis par. 8
of the Regulations.
d.
Costs
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The Chamber referred to article 18 par. 2 of the Procedural Rules, according to which “DRC
proceedings relating to disputes between clubs and players in relation to the maintenance
of contractual stability as well as international employment related disputes between a club
and a player are free of charge”. Accordingly, the Chamber decided that no procedural
costs were to be imposed on the parties.
47.
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, Marc Anthony Klok, is partially accepted.
2.
The Respondent, PSM Makassar, has to pay to the Claimant, the following amount:
- USD 869,500 as outstanding remuneration plus 10% interest p.a. as from 27 June 2020
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 set out in
the enclosed Bank Account Registration Form.
5.
Pursuant to article 24bis of the Regulations on the Status and Transfer of Players if full
payment (including all applicable interest) is not paid 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 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
paid by the end of the 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 24bis paragraphs 7 and 8 and article 24ter of the Regulations on the Status and
Transfer of Players.
7.
This decision is rendered without costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 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 20 of the Procedural Rules).
CONTACT INFORMATION:
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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