Labour Disputes
Texto da decisão
REF 20-01289
Decision of the
Dispute Resolution Chamber
passed on 28 January 2021
regarding an employment-related dispute
COMPOSITION:
Clifford J. Hendel (USA & France), Deputy Chairman
Stéphane Burchkalter (France), member
Todd Durbin (USA), member
CLAIMANT / COUNTER-RESPONDENT 1:
Sumareh Mohamadou, Malaysia & Gambia
Represented by Ruiz-Huerta & Crespo
CLAIMANT / COUNTER-RESPONDENT 2:
Police Tero FC, Thailand
Represented by Ruiz-Huerta & Crespo
RESPONDENT / COUNTER-CLAIMANT:
Pahang FC, Malaysia
Page 2 of 18
REF 20-01289
I. Decision of the Dispute Resolution Chamber
1. On 5 January 2019, the player and club concluded an employment contract valid as from 1
December 2018 until 30 November 2022.
2. Following the Schedule A to the contract, the player was entitled to the following
remuneration:
First Year Season 2018/2019 : USD25,000.00 per month and must be paid no later than the
7th of the following month Tax Free.
Second Year Season 2019/2020 : USD30,000.00 per month and must be paid no later than
the 7th of the following month Tax Free
Third Year Season 2020/2021: USD35,000.00 per month and must be paid no later than the
7th of the following month.
Fourth Year Season 2021/2022 : USD40.000.00 per month and must be paid no later than the
7th of the following month
(Following TMS, the season in Malaysia follows the calendar year, from January to
December).
3. Art. 6 of the contract stipulated the following:
“ARTICLE 6: GRIEVANCE PROCEDURES
If there are complaints regarding the terms and conditions of service under this Contract,
the following procedure shall apply:
6.1 A notice of complaint must be submitted in writing to the Manager of the Club or
Secretary within seven (7) days of such complaints arises.
6.2 The matter will be discussed at the next Club meeting or within fourteen (14) days after
receiving the notice, whichever is earlier.
6.3 If the complaint cannot be resolved by the Club or grievance decision made by the Club
does not satisfy Players, then the Player shall make a complaint within fourteen (14) days
after receiving the Club's decision to the National Dispute Resolution Chamber (NDRC) in
accordance with the NDRC regulations.
6.4 In the event the Player or representative still not satisfied with the decision of the NDRC,
then the Player can make an appeal within seven (7) days after receiving the decision of the
NDRC, the Player then may refer the dispute to the Arbitral Tribunal in accordance with the
Arbitration Act currently in force. The decision by the Arbitration Tribunal shall be final and
binding on all parties.”
4. Art. 8.7 of the contract stipulated the following:
“This contract may be terminated without any effect of any kind (either payment of
compensation or imposition of sporting sanctions) if the Player does not receive his salary
on more than one occasion. The Player must:
i. Having not paid a salary for more than one occasion, the Player shall write a letter to the
Club Secretary or Manager expresses his intention to terminate the contract;
ii. After stating his intention to terminate the contract, the Player has the right to negotiate
with any new Club, without having to get permission from the current Club. In such a case,
the Club shall release the Player to the New Club and release his transfer certificate (SPN)
unconditionally as soon as the contract terminated and no further compensation or transfer
fee may apply to new Club.
Page 3 of 18
REF 20-01289
5. According to the club, on 21.02.2018, the Player became a Malaysian citizen.
6. On 17 June 2020, the player sent a “complaint” via email referring, inter alia, to the
following:
“The management of PFA has not mentioned or discussed my arrears from 2018-2020. Since
2018 to date, my salary has always been $20,000. The said arrears will be $266,075.”
7. On 3 July 2020 the player sent a “notice with intent to terminate the contract” indicating
the following:
“I am humbly asking the respected office of PFA, to pay my arrears of salary in full within
15 days. Else, allow me to serve this letter as a notice with the intent to express my intention
10 terminate the agreement as per the terms of my PLAYER CONTRACT.”
8. On 3 August 2020, the player sent a termination notice to the club indicating the following:
“Due to the fact that my request was met with silence, I inform tbc PPA management that
my contract with the club has ended.”
9. According to the information contained in the TMS, the player and Police Tero FC concluded
an employment contract valid as from 25 August 2020 until 20 January 2021, for a monthly
salary of USD 2,000 [the total value of the contract is 2,000*5= USD 10,000]
10. On 1 September 2020, the Football Association of Malaysia requested the cancellation of
the ITC request for the transfer of the player on the basis that “there was no mutual
agreement regarding the early termination of the employment contract between the player
and his former club.”
11. On 3 September 2020, the Single Judge of the Players’ Status Committee (Ref. TMS 305736)
authorised the provisional registration of the player.
12. According to the information contained in said transfer instruction in TMS, the player is
listed as of Malaysian nationality and a copy of his Malaysian passport is available.
13. On 9 September 2020, the player and Police Tero FC jointly lodged a claim against the club
for breach of contract without just cause due to outstanding remuneration. The
player requested the payment of the following amounts, plus 5% interest p.a. as from 3
August 2020:
•
USD 336,075 as outstanding salaries and corresponding to “eight monthly salaries
during the season 2019/2020” and “the previous outstanding payment of USD 96,075”.
•
USD 1,050,000 as compensation, corresponding to USD 1,040,000 as
the mitigated residual value of the contract, plus USD 10,000 as “additional compensation”,
“which may be increased up to six monthly salaries (i.e. USD 180,000) in case there is any
further Mitigated Compensation.”;
14. In addition, Police Tero FC requested USD 20,000 as compensation for the “refusal in issuing
the player’s ITC”.
15. Furthermore, the claimants requested the payment of the procedural fees, if any.
Page 4 of 18
REF 20-01289
16. According to the player, the contract was terminated on 3 August 2020 with just cause in
compliance with art. 14 bis of the Regulations, due to the existence of outstanding salaries.
17. On 30 September 2020, the Respondent replied to the claim and simultaneously lodged a
counterclaim.
18. As a preliminary consideration, the Respondent challenged the competence of FIFA.
19. The Respondent argued in this respect that the dispute is exclusively of a national nature.
20. In particular, the Respondent referred to art. 24 of the Federal Constitution of Malaysia,
which reads as follows:
“24. (I) If the Federal Government is satisfied that any citizen has acquired by registration,
naturalization or other voluntary and formal act (other than marriage) the citizenship of
any country outside the Federation, the Federal Government may b) order deprive that
person of his citizenship.
(..:) If the Federal Government is satisfied that any cu1zen has. Voluntarily claimed
and exercised in any country outside the Federation any rights available to him under the
law of that country, being rights accorded exclusive to its citizens, the Federal Government
may by order deprive that person of his citizenship.”
21. Within this context, the Respondent further considered that the matter shall be directed to
the National Dispute Resolution Chamber of Malaysia.
22. As to the substance, the Respondent provided a series of documents for the player in the
original language along with a translation into English, from January 2019 until August
2020, as follows:
Month and year
Amount
Type of document:
Date of payment:
January 2019
USD 20,000
Payment voucher - Cash
18/6/2019
February 2019
USD 20,000
Payment voucher - Cash
18/6/2019
March 2019
USD 25,000
Payment voucher - Cash
11/4/2019
April 2019
USD 25,000
Payment voucher - Cash
11/5/2019
May 2019
USD 25,000
Payment voucher - Cash
10/7/2019
June 2019
USD 25,000
Payment voucher - Cash
10/7/2019
July 2019
USD 25,000
Payment voucher - Cash
5/8/2019
July 2019
RM 83,400
Receipt from “Bank Islam”
28/8/2020
August 2019
USD 20,000
Payment voucher - Cash
22/10/2019
September 2019
USD 20,000
Payment voucher - Cash
22/10/2019
November 2019
USD 20,000
Payment voucher - Cash
2/1/2020
RM 72,966.40
Receipt from “Bank Islam”
20/11/2019
December 2019
USD 20,000
Payment voucher - Cash
25/2/2020
January 2020
USD 20,000
Payment voucher - Cash
22/2/2020
February 2020
RM 600
Receipt from “Bank Islam”
10/03/2020
March 2020
RM 43,400
“Third Party Funds Transfer” 9/04/2020 (approved)
from “Bank Islam”
April 2020
RM 43,500
HongLeong Payment
21/5/2020
May 2020
RM 42,800
Receipt from “Bank Islam”
15/06/2020
Transfer advice for salary payment
MYR 4,950 + MYR 9,900 on 30 July 2020,
for June 2020
Page 5 of 18
REF 20-01289
MYR 150 + MYR 9,900 + MYR 9,900 + MYR 200 + MYR
7,200 on 4 August 2020
MYR 83,400, on 25 August 2020.
23. As to the substance, in the opinion of the Respondent, the unilateral termination of the
Contract was wrongfully made and without contractual basis as the Player has not
exhausted available remedies as provided therein.
24. According to the Respondent, the Club has entered negotiation with the Player where the
latter has agreed to be paid USD 20,000.00, thereby effectively varying the terms of the
Contract.
25. In sum, the Respondent formulated the following requests for relief:
- In relation to Police Tero FC:
“[To declare that it] Has committed inducement under Article 17 (4) Regulations on the
Status and
Transfer of Players (August 2020 Edition);
iii. As a consequence, Claimant 1 shall be banned from signing any new player either
nationally or internationally for 2 entire and consecutive registration period;
iv. Is jointly and severally liable for the payment of any compensation that the Player may
be condemned to pay the Respondent pursuant to an order from any competent body;
v. Is condemned to pay EUR50,000.00 in favour of the Respondent as damages for
inconvenience caused as a result of this Claim;
- In relation to the player
b. To impose sporting sanction of 6 months restriction on playing in any official matches
due to the aggravating circumstances;
c. To condemn the Player to pay in favour of the Respondent as damages for breach of
contract without just cause, the sum of USD 1,560,000.00.
d. To order the Player to bear any costs, fees and incidentals arising out of this Claim.
26. In its reply to the counterclaim, the player and Police Tero insisted in the competence of art.
22 a) of the Regulations.
27. Furthermore, Police Tero added that its involvement with the matter is due to “certainly
being aware of the potential risk, linked with its hypothetical liability in case the
Employment Contract would have been determined as terminated without just cause(
quod non)” and it is “aimed to avoid it by requesting the FIFA DRC to determine the
Employment Contract having been terminated with just cause by the Player and in any case,
to make clear that no inducement was made.”
28. As to the substance, the player argued that “most of the salary slips annexed to the
Counterclaim were impudently forged, as they were never signed by[him]”, arguing that “a
layman could easily detect the clear differences between the real and the fake signatures at
a simple glance”.
29. In this respect, the player provided the following screenshot:
Page 6 of 18
REF 20-01289
30. In this regard, the player expressed that “as a result of the monthly salaries being paid in a
completely chaotic manner during the life of the Employment Contract, the outstanding
salary payments kept growing and finally reached the substantial amount equal to over
eight monthly salaries (i.e. USD 266,075) at the time the first warning letter was sent on 17
June 2020.”
31. In this respect, the player considered that, in relation to the payment slips
“the only thing which they confirm is the specific amount of money received by
the Player at the moment of signing” and that they could “not anyhow be interpreted as
the acceptance of the Player with the reduction of his salary.”
32. The player further underlined that “even if we take the bank slips as valid –quod nonthe termination of the Employment Contract would have been in any case justified as
an amount over 2 monthly salaries was due at the time of the of the termination”.
33. In this respect, the player provided the following alternative:
a. Assuming that the Respondent completed the payments of January, February,
August, September, November and December 2019 (amounting each to USD
20,000) plus the mentioned months of March, April, June and July 2019
(amounting to USD 25,000 each), plus the double payments made on the months of July
and November 2019 (amounting each to USD 20,000), there would be a total debt of
USD15,000 (USD 300,000-USD 285,000) for the year 2019.
b. On the other hand, assuming that the Respondent completed the payments of Jan
uary and February 2020 (amounting each to USD 20,000) plus the months
of March, April, May 2020 (amounting each to USD 10,000) plus the month of Ju
ne 20209 (amounting to USD 10,000), there would be a total debt of USD 130,000
(USD 220,000-USD 80,000) for the year 2020.
c. Therefore, even if we consider all the payments as duly received -quod non-,
the total debt at the time of the termination amounted of USD 145,000, i.e.an
amount almost equal to five month salaries, therefore, entitling the Player, in any and
all cases, to terminate the Employment Contract with just cause.
34. The player further remarked that, concerning the payments of March, April and May 2020
only USD 10,000 was paid as monthly salary. In this respect, the player argued that the
Respondent did not provide any evidence on the reasons for such reduction and therefore
it shall be only considered as a partial payment of the salaries.
35. However,
according
to
the
player,
“for
the
case
FIFA
may
believe that the Respondent was entitled to reduce his salary due to the COVID 19
Page 7 of 18
REF 20-01289
pandemic”,
this
was
never
agreed
between
(as required by the FIFA COVID Guidelines) “
the
Player and
the Club
36. Within this context, the player modified his request for relief, noting that the following
payments were made:
• MYR 4,950 + MYR 9,900 on 30 July 2020, for the total amount of MYR 14,850
• MYR 150 + MYR 9,900 + MYR 9,900 + MYR 200 + MYR 7,200 on 4 August 2020 = MYR 27,350
Total: RM 42,200, which “following the exchange rates used by the Respondent” corresponds
to USD 10,000;
• MYR 83,400, on 25 August 2020, which represent USD 20,000.
37. In sum, the player deducted USD 30,000 (i.e. USD 10,000+20,000) from his initial petition and
requested the total outstanding amount of USD 306,075.
38. Police Tero further argued that it did not commit any violation of Article 17.4 FIFA RSTP
since there was no inducement at all and the Player signed with it as a free agent.
39. The player was invited to provide a clarification in relation to the claimed amounts, which
he specified as follows:
• USD 296,075 (two hundred ninety-six and seventy-five US Dollars) as outstanding salaries
plus interest:
• USD 1,050,000 (one million and fifty thousand US Dollars) as compensation for breach of
the Employment Contract plus interest.
II. Considerations of the Dispute Resolution Chamber
1.
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.
Taking into account the wording of art. 21 of the August 2020 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.
2.
Subsequently, the Dispute Resolution Chamber referred to art. 3 par. 1 of the Procedural
Rules and emphasised 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, the Dispute Resolution
Chamber is competent to deal with matters which concern employment-related disputes
with an international dimension between players and clubs.
3.
However, in relation to this matter, the Chamber noted that the present employmentrelated dispute fundamentally arises from an employment contract concluded between Mr
Sumareh Mohamadou, who is a Malaysian and Gambian player, and the Respondent,
Pahang FC, which is a club from Malaysia. Yet, in relation to the possible dual nationality of
the player, the Chamber noted that, in any case, it is undisputed that the player was
registered with Pahang FC as a Malaysian national, and said registration status is listed as
such in the Transfer Matching System (TMS).
4.
In view of the above, the Chamber understood that, in principle, the present matter is not
of an international dimension.
Page 8 of 18
REF 20-01289
5.
However, the Chamber also wished to underline that its competence can also be
established on the basis of art. 22 a) of the Regulations, that is, for disputes between clubs
and players in relation to the maintenance of contractual stability (articles 13-18) where
there has been an ITC request and a claim from an interested party in relation to said ITC
request, in particular regarding the issue of the ITC, sporting sanctions or compensation for
breach of contract.
6.
In relation to art. 22 a) of the Regulations, the Chamber noted, however, that the player’s
claim against the Malaysian club does not have an international dimension and his claim is
not strictly related to an ITC request.
7.
However, insofar as Pahang FC lodged a counterclaim against the player and his new club,
the Thai club, Police Tero FC, for alleged inducement to terminate (cf. point I. 17 above),
the Chamber understood that the entire dispute gravitated towards the sphere of
application of art. 22 a) of the Regulations.
8.
As a result, the Chamber understood that art. 22 a) of the Regulations of the Status and
Transfer of Players is applicable as the primary basis for its competence. Consequently, the
matter in its entirety, including the original claim and counterclaim, are admissible.
9.
Moreover, since the present matter falls under art. 22 a) of the Regulations of the Status
and Transfer of Players, the Chamber understood that the matter could not be referred to
a decision-making body established within the framework of the Football Association of
Malaysia, since this possibility is only foreseen in art. 22 b) of the Regulations, but not in
its art. 22 a).
10. In view of the above, the Chamber determined that it is competent to hear the present
dispute, in accordance with art. 22 a) of the Regulations of the Status and Transfer of
Players.
11. In continuation, the Dispute Resolution Chamber analysed which edition of the
Regulations of the Status and Transfer of Players should be applicable to the present
matter. In this respect, the Dispute Resolution Chamber confirmed that in accordance with
art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players, and
considering that the date of the claim, the June 2020 edition of the aforementioned
regulations (hereinafter: the Regulations) is applicable to the matter at hand.
12. With the above having been established, the Dispute Resolution Chamber entered into the
substance of the matter. In doing so, it started to acknowledge the facts of the case as well
as the documents contained in the file. However, the Dispute Resolution Chamber
emphasized that in the following considerations it will refer only to facts, arguments and
documentary evidence which it considered pertinent for the assessment of the matter at
hand.
13. In this respect, the Chamber first noted that, on 5 January 2019, the player and Pahang
FC concluded an employment contract valid as from 1 December 2018 until 30 November
2022.
Page 9 of 18
REF 20-01289
14. Subsequently, the Chamber observed that the player lodged a claim against Pahang FC for
breach of contract without just cause, noting that, on 3 August 2020, and after having put
said club in default, he terminated the contract due to the existence of outstanding
salaries.
15. Conversely, the Chamber took note that, according to Pahang FC, the termination was
wrongfully made and without contractual basis as the player has not exhausted available
remedies.
16. In view of the discrepancy between the aforementioned parties, the Chamber understood
that the main legal issue at stake is to determine whether the player had a just cause to
unilaterally terminate the contract on 3 August 2020.
17. In this respect, the Chamber was eager to emphasise that only a breach or misconduct
which is of a certain severity justifies the termination of a contract. In other words, only
when there are objective criteria, which do not reasonably permit to expect a continuation
of the employment relationship between the parties, a contract may be terminated
prematurely. Hence, if there are more lenient measures which can be taken in order for an
employer to ensure the employee’s fulfilment of his contractual duties, such measures must
be taken before terminating an employment contract. A premature termination of an
employment contract can only be an ultima ratio measure.
18. In relation to the contract, the Chamber first wished to clarify the exact agreed
remuneration between the parties. In particular, the Chamber noted that, according to the
information contained in the TMS, the season in Malaysia follows the calendar year, but
the salaries are stipulated in a format that suggests a season running from a year until the
next one (cf. point I. 2 above).
19. Hence, the Chamber considered that this apparent contradiction had to be disentangled
by understanding the common will of the parties. Thus, the Chamber considered that, for
the sake of clarity, it shall assume that, in order to understand the player’s financial
entitlements, it shall understood that, in all concerning to the player’s remuneration, the
season runs from 1 July until 30 June of the following year.
20. With this idea in mind, the Chamber understood that, following Schedule A to the contract,
the player’s salary would be as follows:
-
First Year Season 2018/2019: USD 25,000 per month from 1 December 2018 until 30 June
2019. Hence, for this period, the player should have received 25,000*7=USD 175,000.
Second Year Season 2019/2020 : USD 30,000 per month from 1 July 2019 until 30 June
2020. Therefore, for this period, the player should have received 30,000*12=USD 360,000.
21. Therefore, the Chamber understood that, for the year 2019, the player should have earned
the total amount of USD 330,000, detailed as follows:
1/1/2019-30/6/2019= USD 25,000 per month, USD 150,000 i.e. 25,000*6
1/7/2019-31/12/2019= USD 30,000 per month, USD 180,000 i.e. 30,000*6
Page 10 of 18
REF 20-01289
22. In addition, the Chamber observed that, following the Schedule A to the contract, the
player was entitled, for the “Third Year Season 2020/2021”, to a salary of USD 35,000
payable as from 1 July 2020 until 30 June 2021. As a result, the Chamber understood that,
for this period, the player should have received 35,000*12=USD 420,000.
23. In view of the above, the Chamber understood that the player, for the year 2020, should
have earned the total amount of USD 390,000, i.e.:
1/1/2020-30/6/2020= USD 30,000 per month, USD 180,000 i.e. 30,000*6
1/7/2020-31/12/2020= USD 35,000 per month, USD 210,000 i.e. 35,000*6
24. Moreover, the Chamber observed that, for the Fourth Year (Season 2021/2022), the player
was entitled to USD 40.000 from 1 July 2021 until 30 November 2022. Therefore, the
Chamber considered that, for this last period, the player should have received
40,000*17=USD 680,000.
25. After having clarified the player’s financial entitlements, the Chamber went on to examine
player’s argument, according to which, on 3 August 2020, he terminated the contract due
to the existence of “8 outstanding salaries”.
26. In relation to the aforementioned claim for outstanding salaries, the Chamber noted that
Pahang FC provided a series of receipts in order to establish that the player was duly
remunerated (cf. point I. 22 above).
27. In relation to said receipts, the Chamber noted that the player contested their validity,
noting that many of them were forged.
28. As a result, the Dispute Resolution Chamber reminded the parties of the contents of art.
12 par. 3 of the Procedural Rules, according to which “any party claiming a right on the
basis of an alleged fact shall carry the burden of proof”. The Chamber further referred to
art. 12 par. 7 of the Procedural Rules, according to which “evidence shall be considered
with free discretion, taking into account the conduct of the parties during the proceedings,
especially a failure to comply with a personal summons, a refusal to answer questions and
the withholding of requested evidence.”
29. With the aforementioned article in mind, the Chamber examined the documentation
provided by Pahang FC in support of its allegations, and noted, in particular, that after
being invited to do so, said club provided the apparent original documents. As a result, in
line with its jurisprudence for similar matters, the Chamber considered that Pahang FC
sufficiently met its burden of proof and, as a result, it could only presume the authenticity
of said documents. Hence, the Chamber dismissed the player’s argument as to the alleged
forgery of a number of the receipts.
30. Nevertheless, as mentioned above, the Chamber noted that, even taking such receipts into
account, they could only prove that the player was paid in a partial manner.
Page 11 of 18
REF 20-01289
31. In particular, as detailed above, and considering that, for the year 2019, the player was
entitled to USD 330,000.
32. However, the Chamber observed that the Respondent only proved the payment of USD
285,000 for the year 2019, as follows:
January 2019
February 2019
March 2019
April 2019
May 2019
June 2019
July 2019
July 2019
August 2019
September 2019
November 2019
December 2019
TOTAL (approx.):
USD 20,000
USD 20,000
USD 25,000
USD 25,000
USD 25,000
USD 25,000
USD 25,000
MYR 83,400
USD 20,000
USD 20,000
USD 20,000
MYR 72,966.40
USD 20,000
USD 285,000
Payment voucher - Cash
Payment voucher - Cash
Payment voucher - Cash
Payment voucher - Cash
Payment voucher - Cash
Payment voucher - Cash
Payment voucher - Cash
Receipt from “Bank Islam”
Payment voucher - Cash
Payment voucher - Cash
Payment voucher - Cash
Receipt from “Bank Islam”
Payment voucher - Cash
18/6/2019
18/6/2019
11/4/2019
11/5/2019
10/7/2019
10/7/2019
5/8/2019
28/8/2020
22/10/2019
22/10/2019
2/1/2020
20/11/2019
25/2/2020
33. As a result, the Chamber considered that, for the year 2019, Pahang FC had an outstanding
debt toward the player in the amount of USD 45,000 (i.e. USD 330,000-285,000).
34. Thereafter, the Chamber went on to consider the player’s entitlements for the season 2020
and until the date of termination.
35. In this respect, the Chamber noted that, as detailed above (cf. point II. 23), until the date
the termination of the contract on 3 August 2020, the player would have been entitled to
receive the total amount of USD 215,000, corresponding to USD 180,000 from January 2020
until June 2020 (i.e. 30,000*6), as well as his salary of July 2020 (i.e. USD 35,000).
36. In relation to said period of time, the Chamber observed that Pahang FC stated having
paid the following:
January 2020
February 2020
March 2020
USD 20,000
RM 600
RM 43,400
Payment voucher - Cash
22/2/2020
Receipt from “Bank Islam”
10/03/2020
“Third Party Funds Transfer” from
9/04/2020 (approved)
“Bank Islam”
April 2020
RM 43,500
HongLeong Payment
21/5/2020
May 2020
RM 42,800
Receipt from “Bank Islam”
15/06/2020
ransfer advice for salary payment for June
MYR 4,950 + MYR 9,900 on 30 July 2020,
2020
MYR 150 + MYR 9,900 + MYR 9,900 + MYR 200 + MYR 7,200 on 4
August 2020
MYR 83,400, on 25 August 2020.
TOTAL (approx., in USD)
USD 80,000
Page 12 of 18
REF 20-01289
37. In relation to the aforementioned payments, the Chamber observed that, on the basis of a
declaration made by the player in his replica, the amount of USD 80,000 was paid to the
player in 2020.
38. Therefore, considering that, until the date of termination of the contract, the player was
entitled to USD 215,000 from January 2020 until July 2020, the Chamber observed that
Pahang FC was only able to prove that it paid USD 80,000 during said period. As a result,
the Chamber determined that, for said period, the amount of USD 135,000 remained
nevertheless as outstanding (i.e. USD 215,000-80,000).
39. In sum, the Chamber established that, until 3 August 2020 (when the contract was
terminated), that the amount of USD 180,000, as the sum of USD 45,000 outstanding for
2019 and USD 135,000 for 2020, remained outstanding.
40. For the sake of completeness, the Chamber also took note of Pahang FC’s argument,
according to which the parties agreed to reduce the salary to USD 20,000 per month.
However, the Chamber observed that no evidence was presented about this alleged
agreement.
41. In view of the above, the DRC concluded that the club failed to pay the player’s
remuneration, to in the amount of USD 180,000. Therefore, given that said amount is
substantial and represents at least four monthly salaries, the Chamber considered that the
Respondent seriously neglected its financial obligations towards the Claimant. Thus, in
accordance with the longstanding jurisprudence of the DRC, the Chamber established
that the player had just cause to terminate on 3 August 2020.
42. In view of the above, the DRC considered that the club shall be liable for the early
termination of the contract. However, before entering into the consequences of said
termination, the Chamber understood that, in addition to compensation, the player is
entitled to the payment of his outstanding dues until the termination of the contract.
43. Thus, the Chamber understood that, as established, the player was entitled to the total
outstanding amount of USD 180,000.
44. Consequently, in strict application of the principle of pacta sunt servanda, the Chamber
decided that the Respondent shall pay to the Claimant the total amount of USD 180,000
as outstanding remuneration for the aforementioned period.
45. Moreover, taking into account the jurisprudence of the DRC in this respect, the Chamber
decided to award 5% interest p.a. over said amount as from the date of termination of the
contract
46. In continuation, the DRC decided that, taking into consideration art. 17 par. 1 of the
Regulations, the Claimant is entitled to receive from the Respondent compensation for
Page 13 of 18
REF 20-01289
breach of contract in addition to any outstanding remuneration on the basis
of the relevant employment contract.
47. As a result, the DRC went on to examine the (financial) consequences of the early
termination of the contract and, in particular, the calculation of the payable
compensation.
48. In this context, the DRC outlined that, in accordance with said provision, 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 Claimant 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. The DRC further noted that, following art. 17 par. 1 of the Regulations, in case the
player did not sign any new contract following the termination of his previous contract, as
a general rule, the compensation shall be equal to the residual value of the contract that
was prematurely terminated.
49. In application of the relevant provision, the DRC held that it firstly had to clarify whether
the pertinent employment contract contained any clause, by means of which the parties
had beforehand agreed upon a compensation payable by the contractual parties in the
event of breach of contract. In this regard, the DRC established that no such compensation
clause was included in the employment contract at the basis of the matter at stake.
50. Subsequently, and in order to evaluate the compensation to be paid by the Respondent,
the DRC took into account the remuneration due to the Claimant in accordance with the
employment contract as well as the time remaining on the same contract, along with the
professional situation of the Claimant after the early termination occurred. In this respect,
the DRC pointed out that at the time of the termination of the employment contract, the
contract would run until 30 November 2022, for which the player would still have to
receive the amount of USD 1,030,000 (i.e. August 2020 – June 2021: 35,000*10= USD
350,000 and July 2021-November 2022: 40,000*17=USD 680,000.
51. As a result, the DRC considered that the amount of USD 1,030,000 shall serve as the basis
for the calculation of the payable compensation.
52. In continuation, the DRC verified as to whether the Claimant 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, 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
Claimant’s general obligation to mitigate his damages.
Page 14 of 18
REF 20-01289
53. In this respect, the DRC took note the player and Police Tero FC concluded an employment
contract valid as from 25 August 2020 until 20 January 2021, for a monthly salary of USD
2,000. Thus, the Chamber noted that the total value of the contract is 2,000*5= USD 10,000.
54. Therefore, and at this stage, the Chamber noted that the mitigated compensation would
correspond to USD 1,020,000 (i.e. 1,030,000-10,000).
55. Thereafter, the Chamber referred to the contents of art. 17 par. 1 ii of the contract,
according to which, and subject to the early termination of the contract being due to
overdue payables, in addition to the Mitigated Compensation, the player shall be entitled
to an amount corresponding to three monthly salaries (the “Additional Compensation”).
56. Thus, in view of the aforementioned provision, the Chamber established that, in addition
to the mitigated compensation of USD 1,020,000, the player would be entitled to three
additional salaries, corresponding to USD 105,000 (i.e. 35,000*3), leading to a potential
compensation of USD 1,125,000.
57. Yet, in this respect, the Chamber further noted that, following the aforementioned
provision, the overall compensation may never exceed the rest value of the prematurely
terminated contract.
58. Therefore, considering that the residual value of the contract, as mentioned above,
amounted to USD 1,030,000 the Chamber established that said amount shall correspond
to the total payable compensation.
59. As a consequence, and bearing in mind the above, the Chamber concluded by deciding
that the Respondent has to pay the total amount of USD 1,030,000 to the Claimant, as
compensation for breach of contract, which it considered as reasonable and justified in the
light of the applicable jurisprudence and regulations.
60. Furthermore, in accordance with its longstanding jurisprudence in this regard, the
Chamber decided to award 5% interest p.a. over said amount as from the date of the
claim.
61. In addition, as a logical consequence of the above, the DRC established that counterclaim
of Pahang FC had to be rejected.
62. Moreover, the Chamber also established that the claim of Police Tero for “refusal of the
ITC” shall also be rejected due to a lack of any contractual or regulatory basis.
63. As to the requested legal fees, the Chamber referred to art. 18 pars. 2 and 4, 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” and “no procedural compensation shall
be awarded in proceedings of the Players’ Status Committee and the DRC.”
Page 15 of 18
REF 20-01289
64. Additionally, taking into account the previous considerations, the Dispute Resolution
Chamber referred to par. 1 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.
65. In this regard, the Dispute Resolution Chamber pointed out 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 and for the maximum duration of three entire and consecutive
registration periods.
66. Therefore, bearing in mind the above, the Dispute Resolution Chamber decided that, in
the event that Pahang FC does not pay the amounts due to the player within 45 days as
from the moment in which the latter, following the notification of the present decision,
communicates the relevant bank details to the Respondent, a ban from registering any
new players, either nationally or internationally, for the maximum duration of three entire
and consecutive registration periods shall become effective on Pahang FC in accordance
with art. 24bis par. 2 and 4 of the Regulations.
67. Finally, the Dispute Resolution Chamber 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. 3 of the Regulations.
Page 16 of 18
REF 20-01289
III. Decision of the Dispute Resolution Chamber
1.
The claim of the player, Sumareh Mohamadou, is partially accepted.
2.
Pahang FC has to pay to the player, Sumareh Mohamadou, the following amounts:
- USD 180,000 as outstanding remuneration plus 5% interest p.a. as from 3 August
2020 until the date of effective payment.
- USD 1,030,000 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 9 September 2020 until the date of effective payment.
3.
Any further claims of the parties are rejected.
4.
Mr Sumareh Mohamadou is directed to immediately and directly inform Pahang FC of
the relevant bank account to which the Respondent must pay the due amount.
5.
Pahang FC shall provide evidence of payment of the due amount in accordance with this
decision to [email protected], duly translated, if applicable, into one of the official FIFA
languages (English, French, German, Spanish).
6.
In the event that the amount due, plus interest as established above is not paid by Pahang
FC within 45 days, as from the notification by Mr Sumareh Mohamadou of the relevant
bank details to Pahang FC, the following consequences shall arise:
1. Pahang FC shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid and for the maximum duration of
three entire and consecutive registration periods. The aforementioned ban
mentioned will be lifted immediately and prior to its complete serving, once the
due amount is paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amount as per in this decision is still not paid by the
end of the ban of three entire and consecutive registration periods, the present
matter shall be submitted, upon request, to the FIFA Disciplinary Committee.
7.
This decision is rendered without costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Page 17 of 18
REF 20-01289
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:
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
Page 18 of 18