Labour Disputes
Texto da decisão
REF FPSD-2378
Decision of the
Dispute Resolution Chamber
passed on 12 November 2021
regarding an employment-related dispute concerning the player Omid David
Lazarte Nazari
BY:
Clifford J. Hendel, (USA& France)
Stella Maris Juncos, (Argentina)
Alejandro Atilio Taraborrelli, (Argentina)
CLAIMANT / COUNTER-RESPONDENT:
Persib Bandung, Indonesia
Represented by Mr. Teddy Tjahjono
RESPONDENT / COUNTER-CLAIMANT:
Omid David Lazarte Nazari, Philippines
Represented by Mr. Rasic Zoran
INTERVENING PARTY:
United City FC, Philippines
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REF FPSD-2378
I.
Facts of the case
1.
On 15 August 2019, the Philippine player, Omid David Lazarte Nazari (hereinafter: “the
player” or “the Respondent 1” or “the Respondent/Counter-Claimant”) and the Indonesian
club, Persib Bandung (hereinafter: “the club” or “the Claimant” or “the Claimant/CounterRespondent”) signed an employment contract (hereinafter: “the first contract”) valid from the
date of signature until 31 December 2019.
2. Pursuant to Section 2 of the first contract, the Respondent 1 was entitled to receive a total
contract value in the amount of Indonesian Rupiah (IDR) 598,500,000 net payable as follows:
(i) IDR 119,700,000 as 20% down payment to be paid at least 30 working days after
the execution ofthe contract;
(ii) IDR 106,400,000 as monthly salary.
3.
On 19 December 2019, the Claimant and the Respondent 1 extended the first contract from
1 January 2020 to 31 December 2020 (hereinafter: “the second contract”) for a total
remuneration of IDR 2,016,000,000 which according to its article 2 is composed as follows:
(i) IDR 403,200,000 as down payment to be paid at least 30 working days after the
execution ofthe contract and
(ii) IDR 1,612,800,000 as total salary payable in 12 monthly instalments of IDR 134,400,000
each. The monthly salary would be payable by the 30th day of each month.
4.
On 29 July 2020, the Claimant and the Respondent 1 signed an amendment (hereinafter:
“the amendment”) to article 2 of the second contract according to which the parties agreed
that the player would be entitled to receive an amount of IDR 1,249,920,000 as remuneration
and that the new expiry date of the contract would be 1 March 2021. A list indicating the
remuneration payable to the Respondent 1 was enclosed to the amendment. The total
amount of IDR 1,249,920,000 as remuneration was breaking down as follows:
Down Payment
Salary January 2020
Salary February 2020
Salary March 2020
Salary April 2020
Salary May 2020
Salary June 2020
Salary July 2020
Salary August 2020
Salary September
2020
Salary October 2020
Salary November 2020
Salary December 2020
Salary January 2021
Salary February 2021
403,200,000
134,400,000
134,400,000
33,600,000
33,600,000
33,600,000
33,600,000
33,600,000
58,560,000
58,560,000
58,560,000
58,560,000
58,560,000
58,560,000
58,560,000
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5.
On 15 September 2020, the Claimant and the Respondent 1 signed a new contract extension
valid from 1 March 2021 until 31 December 2021 (hereinafter: “the third contract”).
6.
According to article 2 of the third contract, the player was entitled to receive the total contract
value of IDR 1,942,080,000 as follows:
-IDR 388,416,000 as down payment to be paid by at least 30 working days after the
execution of the contract and
-IDR 1,553,664,000 as total salary payable in 10 monthly instalments of IDR 155,366,400
each from March to December 2021 on the 30th day of each month.
7.
Article 18 of the second and the third contract states as follows:
1. Where the player unilaterally terminates this player contract without any reasons or due
to any reasons unacceptable to the club, the club is entitled to indemnification of the total
100% of the player’s contract value.
2. Where the club unilaterally terminates this player contract without any reasons other than
provided in the player contract, the player is entitled to the remaining contract value of
the contract and shall be released from all terms under this contract so that the status of
the player will be free player.
8.
On 12 January 2021, the Respondent 1 sent a default notice to the Claimant stating, inter
alia, that he voluntarily agreed as follows:
1) To reduce his salary as initially agreed (i.e. from IDR 134,400,000 to IDR 58,560,000);
2) To extend the current contract (i.e. the second contract) for another 2 months up to 1 March
2021 (cf. the amendment);
3) To agree on an extension and to sign a new contract for another season (i.e. the third
contract).
In light of the above, the Respondent 1 claimed not having received his salaries for the
months of October until December 2020 in full (IDR 58,560,000 per month) and his sign-on
fee (IDR 388,416,000). The Respondent 1 requested a total outstanding amount of IDR
463,296,000 and granted the Claimant 15 days to comply with its obligations, to no avail.
9.
On 9 February 2021, the Respondent 1 sent a letter to the Claimant unilaterally terminating
the employment relationship (hereinafter: “the termination letter”) due to the fact that his
remuneration for a total amount of IDR 488,256,000 was still overdue. Said amount is
composed by the unsettled amount of IDR 463,296,000 (cf. default notice dated 12 January
2021) plus the balance of the monthly salary of January 2021 (i.e. IDR 24,960,000) remained
outstanding.
10. On 5 March 2021, the Respondent 1 signed a new contract with the Philippine club, United
City FC (hereinafter: “the Intervening Party” or “the Respondent 2”). According to TMS,
this contract is valid from 15 March 2021 until 30 October 2021 for (Philippines Pesos) PHP
275,000 per month.
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II. Proceedings before FIFA
11. On 26 April 2021, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. The claim of the Claimant/Counter-Respondent
12. The requests for relief of the Claimant, were the following:
Respondent 1 be ordered to pay compensation for breach of contract in the amount of
IDR 3,690,660,000 plus interest of 5% p.a. as of 10 February 2021 until the date of
effective payment;
In the alternative, the Respondent 2 be ordered to pay the compensation for breach of
contract in the amount of IDR 1,900,800,000, plus interest of 5% p.a. as of 10 February
2021 until the date of effective payment;
The Respondent 2 be declared jointly and severally liable for the payment of the
compensation for breach of contract together with the Respondent/ counter Claimant;
Legal and Procedural costs be borne by the Respondents.
13. In support of its claim, the Claimant argued that the Respondent 1 breached the contract and
then joined the Respondent 2. As a result, the Claimant stated that the Respondent 2 is
therefore jointly responsible with the Respondent 1 for the compensation payable for breach
of contract.
14. According to the Claimant, as of March 2020, the COVID-19 pandemic hit Indonesia and as
a result, the Liga 1 Indonesia was suspended. As a result, the Claimant added that its revenue
streams stopped immediately and it was forced to reduce the Respondent 1’s monthly salary
as of March 2020 to IDR 33,600,000.
15. According to the Claimant, the salary reduction was in compliance with a decree of PSSI dated
27 March 2020, by means of which the Indonesian Football Federation (PSSI) declared that
the situation shall be considered as a force majeure since March 2020, the Indonesian
Championship be interrupted immediately until 29 May 2020 due to COVID-19, and that
salaries shall be reduced to 25%.
16. The Claimant added that the Respondent 1 never complained about the salary reduction as
of March 2020.
17. The Claimant argued that on 29 July 2020, the contract was amended and the total amount
due to the Respondent 1 was reduced to IDR 1,249,920,000 payable in accordance with the
breakdown list (cf. point 4 above).
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REF FPSD-2378
18. The Claimant stated that until September 2020, it was in a position to abide by the payment
plan outlined above. However, unfortunately as of October 2020, Indonesia was hit by the
second wave of the COVID-19 pandemic. Therefore, the season could not be resumed as
planned. This again had a heavy impact on its revenue streams. Therefore, as of October 2020,
the Claimant submits that it was forced to pay the Respondent 1 only IDR 33,600,000 instead
of IDR 58,560,000 as his monthly salary.
19. In view thereof, the Claimant argued that by the end of the year 2020, the amount of IDR
74,880,000 remained unpaid towards the Respondent/ Counter-Claimant, i.e. IDR 24,960,000
(IDR 58,560,000 due – IDR 33,600,000 paid) for each of the three monthly salaries, i.e.
October, November and December 2020.
20. The Claimant added that it had no intention not to pay the said amounts to the Respondent/
Counter-Claimant but that as a result of the COVID-19 pandemic and in order to save the club
from insolvency,deferred some payments on and paid them out at a later date.
21. According to the Claimant, on 12 January 2021, it received a message from the Respondent
1, by means of which he claimed for the remaining parts of the monthly salaries from October
to December 2020 in the total amount of IDR 74,880,000. In addition, the player already
claimed the down payment according to the extended contract, which was not yet due and
imposed a deadline of 15 days to comply with his claim.
22. On 20 January 2021, the season 2020 of the Liga 1 Indonesia was finally cancelled.
Unfortunately, it has never been resumed after the suspension in March 2020.
23. The Claimant submits that on 30 January 2021, it paid the amount of IDR 33,600,000 to the
Respondent 1 on account of his salary for January 2021.
24. The Claimant confirmed having received on 9 February 2021 a letter from the Respondent 1
unilaterally terminating both contracts.
25. The Claimant added that in March 2021, the player signed a new employment contract with
the Respondent 2.
26. According to the Claimant, the Respondent 1 unilaterally terminated both contracts arguing
that the amount of IDR 74,880,000 was outstanding being allegedly equivalent to three
monthly salaries (i.e. October to December 2020), however his monthly salary amounted to
IDR 58,560,000. The Claimant stated that the unpaid amount of USD 74,880,000
corresponds to roughly ¼ monthly salaries, as far as the second contract is concerned and
with regard to the third contract, no payment was overdue at all.
27. As a result, the Claimant claimed that the condition of art. 14bis RSTP (“two monthly
salaries”) was not fulfilled. In view thereof, the Claimant held that the Respondent 1 did not
have a just cause to terminate either the second or the third contracts and thus breached both
of them.
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28. According to the Claimant, the salary for January 2021 had become due on 30 January 2021
(according to art. 2 par. 4 of the second contract, the monthly salary is payable by the 30th
day of each month). Therefore, the salary of January 2021 had become due after the
Respondent 1’s default notice dated 12 January 2021. The Respondent 1 did not send a
default notice for the remainder of the salary of January 2021 before he terminated the
contract on 9 February 2021. Therefore, in accordance with art. 14bis RSTP, due to the lack
of a default notice concerning the salary of January 2021, the Respondent 1 cannot rely on
the remainder of the salary for January 2021 to justify the early termination.
29. Besides the salary notices, the Claimant argued that the Respondent 1 also claimed for the
down payment of the third contract. According to art. 2 par. 2 lit. a of the third contract, the
down payment was due “30 working days after the execution of the PLAYER contract”. The
third contract was to be executed as of 1 March 2021; the down payment was therefore due
on 30 March 2021. In view thereof, the down payment was not yet due when the Respondent
1 notified his default notice on 12 January 2021. Therefore, the Respondent 1 can also not
rely on the down payment to justify the early termination of the third contract.
30. In conclusion, the Claimant stated that considering the facts of the matter at stake, the
conditions of art. 14bis RSTP were not fulfilled. As a result, the Claimant maintained that the
Respondent 1’s early termination of both contracts on 9 February 2021 was without just
cause.
31. The Claimant made further reference to article 18 of both the second and third contracts and
states that in accordance with art. 160 et. seq. of the Swiss Code of Obligations (SCO), the
parties are bound by the penalty clause.
32. As a result, the Claimant claimed that the Respondents had to pay compensation for breach
of contract in the amount of the values of both the second and the third contracts. The value
of the second contract is IDR 598,500,000 plus IDR 1,249,920,000 and the value of the third
contract is IDR 1,942,080,000.Therefore, according to the Claimant, the compensation for
breach of contract in accordance with art. 18 par. 1 of the contracts is IDR 3,790,500,000,
i.e. the total value of both breached contracts.
33. Additionally, the Claimant stated that the remainder of the salaries for the four months from
October 2020 to January 2021 (4 x IDR 24,960,000 = IDR 99,840,000) are to be set off against
the aforementioned compensation of IDR 3,790,500,000, thus resulting in a final
compensation payable by the Respondent 1 in the amount of IDR 3,690,660,000.
34. Alternatively, the Claimant added that in the unlikely event that the penalty clause should be
considered as excessive or as inapplicable due to lack of reciprocity, it is not invalid, but it may
be reduced to an amount considered as proportionate. In other words, the penalty shall not
be reduced to an amount that is deemed “fair”, but only to the extent that it is no longer
excessive.
35. In view thereof, the Claimant requested that in the unlikely event that art. 18 should be
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considered as excessive, reference is made to art. 18 par. 2 of the contracts, according to
which the penalty for breach of contract by the club amounts to the remaining value of the
contract. In order to establish a penalty for the breach of contract by the Respondent 1, which
is certainly not excessive, reference can therefore be made to art. 18 par. 2 of the contracts,
which can be applied vice versa on the breach of contract by the Respondent 1.
36. In this case, according to the Claimant, the remaining value of the second contract is IDR
58,560,000 (salary for February 2021) and the remaining value of the third contract is IDR
1,942,080,000. The total remaining value of both contracts is therefore IDR 2,000,640,000.
37. The Claimant reiterated its request that the remainder of the salaries from October 2020 to
January 2021 at a total value of IDR 99,840,000 would be set off against the compensation,
thus resulting in an alternative final compensation payable by the Respondent 1 for breach of
contract in the amount of IDR 1,900,800,000.
38. In regards to the Respondent 2, the Claimant submits that according to art. 17 RSTP par. 2,
if a player is required to pay compensation for breach of contract, the player and his new club
shall be jointly and severally liable for its payment. In the matter at stake, the Respondent 1
signed a contract with the Respondent 2 in March 2021. In view thereof, the Claimant submits
that the Respondent 2 shall be jointly and severally liable with the Respondent 1 for the
payment of the compensation for breach of contract.
39. Finally, the Claimant requests 5% annual interest on the compensation due as of the date
after the contract termination on 10 February 2021.
b. Reply and counter-claim of the Respondent/Counter-Claimant
40. According to the Respondent, the Claimant´s claim is an attempt to whitewash its failure to
pay his salaries on time.
41. The Respondent 1 in his reply filed a counterclaim against the Claimant for outstanding
remuneration and compensation for breach of contract.
42. The Respondent 1 claimed having received his salaries from January until February 2020 in
the agreed amount of IDR 134,400,000 monthly (cf. the second contract).
43. The Respondent 1 added that the Claimant unilaterally deducted 25% of the monthly salaries
from March until July 2020, despite his refusal and therefore breached the contractual
obligations unilaterally and without just cause, while relying on a "Decree by the Indonesian
Government". Thus, according to him, the Claimant paid the 25% of his salaries from March
until July 2020, i.e. the amount of IDR 33,600,000 instead of IDR 134,400,000 each.
44. While there was no agreement reached to reduce his salaries, the Respondent 1 deemed that
the Claimant decided to unilaterally make a deduction to his salary. This unilateral decision
by the Claimant is according to him in breach of the FIFA Covid-19- Regulations.
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45. According to the Respondent 1, on 29 July 2020, the Claimant asked him to sign a document
(i.e. the amendment) that required him to accept a reduction of 38%, in the amount of IDR
766,080,000 from the value of the second contract, meaning from IDR 2,016'000'000 to IDR
1,249,920,000 (approximately CHF 48,053.97), which he rejected.
46. The Respondent 1 added that the Claimant provided him with an excel sheet containing a
proposed payment schedule dated 29 July 2020 (cf. point 4 above).
47. The Respondent 1 confirmed having accepted the above proposal under the condition that
his contract would be extended for another season, i.e. the third contract.
48. According to the Respondent 1, he showed good will for the Covid-situation and agreed to
decrease the value of the contract for 38% for IDR 766,080,000 and additionally to extend
the contract for another season. Consequently, the extension of the agreement (i.e. the third
contract) was signed on 15 September 2020.
49. The Respondent 1 confirmed having received the amount of IDR 33,600,000 as monthly
salary for October, November and December 2020.
50. According to the Respondent 1, despite his default notice dated 12 January 2021, the
Claimant kept paying IDR 33,600,000 instead of IDR 58,560,000 for January 2021 as
requested in his default notice.
51. Consequently, the Respondent 1 argued that he had no choice but to terminate the contract
with immediate effect on 9 February 2021.
52. The Respondent 1 added that as from the date of the contract´s termination, the Claimant
had not paid the deducted amounts of IDR 99,840,000 from October 2020 until January 2021
and the down payment of IDR 388,416,000 that was due on 27 October 2020, accumulating
to a total outstanding amount of IDR 488,256,000.
53. According to the Respondent 1, while the Claimant acknowledged that the amount of IDR
74,880,000 was due to him, the parties disagreed on the due date of the down payment of
IDR 388,416,000 and that after several failed negotiations between the parties, the Claimant
lodged a claim at FIFA.
54. In conclusion, the Respondent 1 requested to be awarded outstanding remuneration from
October 2020 until January 2021, plus the down payment and a mitigated compensation for
breach of contract in the amount of IDR 2,091,310,481.
c. Claimant/Counter-Respondent´s reply to the counterclaim
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55. In response to the counterclaim, the Claimant started by requesting that the FIFA DRC
disregards all information submitted by the Respondent 1 on negotiations between the
parties.
56. The Claimant reiterated that the Respondent 1 did agree to the salary reductions and stated
that in any case the he admitted in his counterclaim that at the date of termination, there
were 1.5 salaries overdue which does not justify a termination of the contract in accordance
with article 14bis RSTP.
57. According to the Claimant, the Respondent 1 attempted to justify his early termination by
stating that the down payment under new contract was due and yet said contract only started
on 1 March 2021 after his termination. The Claimant added that according to art. 2 par. 2 of
the third contract, the down payment is due 30 days after execution of the employment
contract. The word “Execution” according to the Claimant has to be understood as the date
when the employment contract is coming into effect, i.e. its starting date, which was on 1
March 2020 and not the date of signing.
58. In regards to the COVID-19 FIFA Regulations cited by the Respondent 1, the Claimant submits
that these provisions are of no relevance in the matter at stake as he agreed to the salary
reductions and signed a new contract from March 2021, which allowed him to compensate
in 2021 for the salary losses of 2020.
59. Consequently, according to the Claimant, the Respondent 1’s counterclaim for compensation
for breach of contract has to be rejected, as he terminated the contract with only 1.5 salaries
outstanding.
60. In conclusion, the Claimant confirmed that the Respondent 1 is owed IDR 99,840,000 (IDR
24,960,000 per month) as outstanding salaries from October 2020 to January 2021 and
requests that:
- the Counterclaim of the Claimant/Counter-Respondent has to be rejected;
- in the alternative, the Counterclaim be reduced to IDR 1,175,802,628;
- no sanctions be imposed on the Counter-Respondent;
- all legal and procedural costs be borne by the Counter-Claimant.
d. Position of the Respondent 2
61. The Respondent 2 in its reply stated that it underwent the standard procedure of getting the
required clearance before signing the player.
62. The Respondent adds that it filed a request for an International Transfer Certificate (ITC)
through the FIFA International Transfer Matching System, submitted all the necessary
documents for a successful transfer and was granted the ITC on 9 March 2021.
63. The Respondent 2 stated that it always performs due diligence when getting into agreements
with players and does not resort to unethical procedures to hire the services of athletes and
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that the Respondent 1’s contract was signed and took effect on 15 March 2021, in other
words, after the ITC was issued to its Federation.
64. The Respondent 2 concludes by stating that any complaint regarding the Respondent 1’s
previous contract, should be between the concerned parties as it has no participation
whatsoever in the activities of the Respondent 1 in the days and months prior to his transfer
and has absolutely no involvement in his decision to leave his previous club.
65. In conclusion, the Respondent 2 requested to consider the claim filed against it baseless.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
66. 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 26 April 2021 and submitted for decision
on 12 November 2021. 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.
67. Subsequently, the members of 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 lit. a) and b)
of the Regulations on the Status and Transfer of Players (August 2021 edition), 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 Philippine player, an
Indonesian club and a Philippine club.
68. 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 (August 2021 edition), and
considering that the present claim was lodged on 26 April 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
69. 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).
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c. Merits of the dispute
70. 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
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 the assessment of
the matter at hand.
i. Main legal discussion and considerations
71. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the parties strongly dispute whether the termination of the
employment relationship by the player was with or without just cause.
72. In this context, the Chamber wished to briefly recall the main requests of the
Claimant/Counter-Respondent and the Respondent/Counter-Claimant.
73. In doing so, the Chamber firstly recalled that the Claimant/Counter-Respondent is requesting
to be awarded compensation for alleged breach of contract by the player for a total amount
of IDR 3,690,660,000. The Claimant held that the Respondent 1 did not terminate their
employment relationship fulfilling the requirements established in article 14bis of the
Regulations. In addition, the Claimant argued that at the moment of the termination, the
down payment requested by the Claimant was not yet due.
74. On the other hand, the Chamber outlined that the Respondent/Counter-Claimant is
requesting the amount of IDR 488,256,000 as outstanding remuneration and IDR
2,091,310,481 as compensation for alleged termination of the contract with just cause ex.
art. 14bis of the Regulations.
75. With the aforementioned considerations in mind, and in light of the parties’ positions, the
Chamber deemed that the underlying issue in this dispute was to first determine on which
date the player unilaterally terminated the employment contract and whether said termination
was made with or without just cause. Subsequently, to determine the consequences thereof.
76. In continuation, the Chamber pointed out the following uncontested facts:
1) On 19 December 2019, the parties concluded the second contract valid from 1 January
2020 until 31 December 2020 establishing a monthly salary amounting to IDR
134,400,000;
2) On 29 July 2020, before the expiry of the second contract the parties signed the
amendment by means of which the parties agreed to extend their employment
relationship until 1 March 2021 and to reduce the monthly salary to IDR 58,560,000;
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3) On 15 September 2020, the parties concluded the third contract valid from 1 March 2021
until 31 December 2021 establishing a monthly salary amounting to IDR 155,664,000
and a down payment amounting to IDR 388,416,000.
77. At this stage, the Chamber underlined that on 12 January 2021, the Respondent 1 sent a
default notice to the Claimant requesting the balance of the salaries for a total amount of
IDR 74,880,000 corresponding to the months of October, November and December 2020
based on the amendment. The Chamber pointed out that the Respondent 1 claimed a
balance of IDR 24,960,000 for each month, which represented 42% of the agreed monthly
salary of IDR 58,560,000. In addition, the Chamber noted that the Respondent 1 requested
the payment of a signing-on fee for an amount of IDR 388,416,000 based on the third
contract.
78. Furthermore, the Chamber acknowledged it also remained uncontested by the parties that
on 9 February 2021 the Respondent 1 terminated their employment relationship due to
alleged overdue payables for a total amount of IDR 488,256,000 composed by the amount
of IDR 463,296,000 included in the default notice of 12 January 2021 plus the balance of the
monthly salary of January 2021 (i.e. IDR 24,960,000).
79. In this context, the Chamber acknowledged that its task was to determine, based on the
evidence presented by the parties, whether the claimed amounts had in fact remained unpaid
by the Claimant.
80. To start with, the Chamber reiterated that by means of the amendment the parties agreed to
extend their employment relationship until 1 March 2021 and established a monthly salary
amounting to IDR 58,560,000.
81. In this respect, the DRC remarked that the Respondent 1 showed good predisposition to find
a solution together with the Claimant to cover the negative effect of the COVID-19 pandemic
in the club´s financial situation.
82. The DRC pointed out that the Respondent 1 in his default notice of 12 January 2021 fully
confirmed the terms agreed by the parties in the amendment.
83. In continuation, the Chamber observed that the Claimant confirmed owing to the Respondent
the amount of IDR 99,840,000 and requested in its claim for compensation, “the remainder
of the salaries for the four months of October 2020 to January 2021 (4 x IDR 24’960’000 =
IDR 99’840’000) should be offset against the compensation due”.
84. In light of the above, the Chamber concluded that at the moment of the termination of the
contract by the Respondent 1, i.e. on 9 February 2021, the Claimant owed to the Respondent
1 the amount of IDR 99,840,000 as outstanding remuneration.
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85. With regard to the Respondent 1´request for an amount of IDR 388,416 as signing-on fee in
accordance with the third contract, the Chamber took note that the Claimant argued that said
amount was not due at the moment of the termination of the contract.
86. In this respect, the Chamber held that at the moment of the termination of the employment
relationship (i.e. on 9 February 2021) by the Respondent 1, the second contract and the
amendment were in force.
87. For the sake of completeness, the Chamber highlighted that in accordance with article 2 of
the third contract the relevant signing –on fee was supposed to be paid “at least 30 days after
the execution of the contract”.
88. Based on the foregoing, the Chamber decided that at the moment of the termination of the
contract by the Respondent 1, the signing-on fee based on the third contract had not yet fallen
due.
89. In view of all the above, the Chamber decided that on 9 February 2021, the Respondent 1
terminated the contract with just cause based on art. 14 of the Regulations as he had over
four not fully paid monthly salaries.
90. Consequently, the Chamber decided to reject the Claimant´s claim, as the termination of the
contract was made with just cause by the Respondent 1. Therefore, The DRC held that no
compensation could be awarded to the Claimant.
ii. Consequences
91. 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 Claimant.
92. The Chamber observed that the outstanding remuneration at the time of termination are
equivalent to part of the monthly salaries related to October 2020, November 2020,
December 2020 and January 2021 under the amendment, amounting to a total amount of
IDR 99,840,000.
93. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the Claimant is liable to pay to the Respondent 1 the amounts,
which were outstanding under the contract at the moment of the termination, i.e. IDR
99,840,000 (4 times IDR 24,960,000).
94. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award the Respondent 1 interest at the
rate of 5% p.a. on the outstanding amounts as from the first day of the following month in
which each monthly salary became due until the date of effective payment.
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95. 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 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.
96. In application of the relevant provision, the Chamber held that it first of all had to clarify as
to whether the second and third 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.
97. In this regard, the Chamber took note of the wording of article 18 of the second and third
contract, which established that:
1. “Where the player unilaterally terminates this player contract without any
reasons or due to any reasons unacceptable to the club, the club is entitled to
indemnification of the total 100% of the player’s contract value.
2. Where the club unilaterally terminates this player contract without any reasons
other than provided in the player contract, the player is entitled to the
remaining contract value of the contract and shall be released from all terms
under this contract so that the status of the player will be free player”.
98. After analysing the content of the aforementioned clause, the Chamber concluded that it did
not fulfil the criteria of reciprocity and proportionality, in line with the Chamber’s
longstanding jurisprudence, and therefore could not be taken into account for establishing
the amount of compensation payable to the Respondent 1. In particular, the Chamber noted
that the compensation in case of breach of contract by the player would amount to the total
amount of the contract´s value whereas in case of its breach by the club would amount only
to the residual value.
99. 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 non-exhaustive enumeration of criteria to be taken into consideration
when calculating the amount of compensation payable.
100. 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 contracts
from the date of its unilateral termination until its end date. Consequently, the Chamber
concluded that the amount of IDR 2,000,640,000 (i.e. the residual value of the contract)
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serves as the basis for the determination of the amount of compensation for breach of
contract.
101. 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.
102. Indeed, the player found employment with the Respondent 2. In accordance with the
pertinent employment contract, the player was entitled to Philippine Pesos (PHP) 275,000 per
month. Therefore, the Chamber concluded that the player mitigated his damages in the total
amount of PHP 2,200,000, which is equivalent to IDR 608,688,000 that is, 8 times PHP
275,000.
103. Subsequently, the Chamber referred to 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. In the case at hand, the Chamber confirmed that the contract termination took
place due to said reason i.e. overdue payables by the club, and therefore decided that the
player shall receive additional compensation.
104. In this respect, the DRC decided to award the amount of additional compensation of IDR
175,680,000, three times IDR 58,560,000, i.e. the monthly remuneration of the player.
105. 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 IDR
1,567,632,000 to the player (i.e. IDR 2,000,640,000 minus IDR 608,688,000 plus IDR
175,680,000), which was to be considered a reasonable and justified amount of
compensation for breach of contract in the present matter.
106. 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 23 July 2021 until the date of effective payment.
iii. Compliance with monetary decisions
107. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24bis
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.
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108. 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.
109. 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. 24bis par. 2, 4, and 7 of the Regulations.
110. 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.
111. 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
112. 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.
113. 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.
114. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant/Counter-Respondent, Persib Bandung, is rejected.
2.
The counterclaim of the Respondent/Counter-Claimant, Omid David Lazarte Nazari, is partially
accepted.
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3.
The Claimant/Counter-Respondent, has to pay to the Respondent/Counter-Claimant IDR
99,840,000 as outstanding remuneration plus 5% interest p.a. as of the due dates until the
effective date of payment as follows:
- On the amount of IDR 24,960,000 as of 1 November 2020;
- On the amount of IDR 24,960,000 as of 1 December 2020;
- On the amount of IDR 24,960,000 as of 1 January 2021;
- On the amount of IDR 24,960,000 as of 1 February 2021.
4.
The Claimant/Counter-Respondent has to pay to the Respondent/Counter-Claimant IDR
1,567,632,000 as compensation plus 5% interest p.a. as of 23 July 2021.
5.
Any further claims of the Respondent/ Counter-Claimant are rejected.
6.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
7.
Pursuant to art. 24bis 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.
8. The consequences shall only be enforced at the request of the Respondent/CounterClaimant in accordance with art. 24bis par. 7 and 8 and art. 24ter of the Regulations on the
Status and Transfer of Players.
9. 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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