Labour Disputes
Texto da decisão
REF. FPSD-14190
Decision of the
Dispute Resolution Chamber
passed on 13 May 2024
regarding an employment-related dispute concerning
the player Keith Nah
COMPOSITION:
Clifford J. HENDEL (USA & France), Deputy Chairperson
Angela COLLINS (Australia), Member
Laurel VAURASI (Fiji), Member
CLAIMANT:
Keith Nah, Liberia
Represented by FIFPRO Division Africa
RESPONDENT:
Krabi FC (KBFC), Thailand
pg. 2
REF. FPSD-14190
I. Facts of the case
1.
On 4 August 2023, the Liberian player Keith Nah (hereinafter: the Player or the Claimant)
and the Thai club Krabi Football Club – KBFC (hereinafter: the Club or the Respondent)
entered into an employment contract (hereinafter: the Contract).
2.
The relevant provisions of the Contract read as follows, quoted verbatim:
“Clause 1. Term of period the employment contract
1.1. This contract start on August 4, 2023
1.2. This contract is effective for the payment of salaries when the Player get Non - b visa
and work permit and received an international transfer certificate
1.3. The club is only responsible for processing visas in Thailand and the club will process
work permits for player once the Non - B visa has been obtained
1.4. The Player must pass the medical examination by the club’s appointed doctor or
hospital
1.5. Contract expire at the end of season 2023/2024, or matches cancelled
announcement from Football Association of Thailand (FAT)
Clause 2. Salary, wages and allowance
2.1. Salary 45,000 baht per month When the action under Clause 1.2 and 1.3 has been
completed
2.2. Renovation employment contract shall be agree both of parties.
2.3. The employer or the club shall agreed to pay salary by month end, but not later than
the 5th day of the following month except of the bank holiday that shall be proceed
payment as next day when the bank opened.
[...]
Clause 7. Evaluation
7.1. Twice time behavior evaluate internal & external of the club's.
7.2. Each 3 months to performance evaluate.
7.3. Result from 7.2 due to decrease or increase benefit or terminate contract.
Clause 8. Penalty and behavior
8.1. The one who not complete clause 4 and result from clause 7, the employer have
authorized to terminate contract.
8.2. To incomplete clause 8.1 the employer shall be get authorize half of payment until
the employee improved or nave authorized to terminate and shall not pay any
compensate.
Clause 9. Appeal and compliant
9.1. In case of dispute between the club and footballer or unfair of judgment, the
footballer shall complaint directly to football association of Thailand, (fat.)
pg. 3
REF. FPSD-14190
9.2. Dispute between the club and footballer not final or unfair of fat judgment, the
footballer authorize to claim according of Thailand court of justice only.
Clause 10. Expire contract / terminate contract
10.1. Contract shall not effect after the date of contract except contract renew.
10.2. To ensure that both of 2 parties are agree to terminate before contract expire by
written notice, electronics communication.
10.3. Contract shall be terminate by employer if result of evaluations according clause
7.3 or advance written notice, electronics communication, verbal notice as least 1 month.
In case of offences serious shall be suddenly terminate without notice.
a.
Offences serious from clause 8
b.
Incomplete duties according by clause 3
c.
Self undeveloped abilities and performance by standard of the club’s or
according or structure of schedule.
d.
The employer notice to employee not in the plan and structure of team.
10.4. Employees may terminate contract due to 3 consecutive 3 months have been not
paid after received written notice 1 month.
10.5. Termination according to clause 10.3 the employee shall have no authorized to
request any compensate, except specify in contract only.
Clause 11. To settle the dispute
Both of the parties could not agree any monitor as define in the this contract, the matter
to the board of football association of Thailand allows respondents to the conclusion.
And in case of could not end shall be sentence by the judge of the law of Thailand is
terminated.
Both of the parties have fully understood that the club is “employer” and the footballer
is "employee'’ both parties are attached to each other only the success of practice and
training match in according to the policy of the club; and agree to follow the club’s rule
& regulation in the current and the future. If the footballer breaches any clause in this
contract the club has the right to terminate the contract immediately without any
payment or compensation paid to the footballer”.
3.
According to the information retrieved from the FIFA Transfer Match System (TMS), the
2023/2024 season in Thailand run from 1 July 2023 to 30 June 2024.
4.
According to the Club, at the end of September the parties signed a document with the
following content, quoted verbatim:
“INTERNAL-MEMO
Between [the Player] and [the Club].
pg. 4
REF. FPSD-14190
[The Player]. I am candidate a professional footballer for Krabi Football Club asking
request to advance cash from Krabi Football Club total amount 40,000 THB (Forty
Thousands Thai Baht) for my own expense.
I agree to sign in Internal-Memo to according as follow :
1. Cash shall return by salary deduct 20,000 THB monthly till full amount of 40,000 THB.
(October and November as 20,000 THB each)
2. Schedule return back to Kingdom of Thailand within 10 days from travelling date on
departure.
3. The Club shall cancel immediately if not on time, and I shall not claim any
compensation or sue to FIFA.
4. Total amount 40,000 THB (Forty Thousands Thai Bath) have received.
Both of The Club and I understood all of details”.
5.
On 7 October 2023, the Player flew from Bangkok (Thailand) to Dakar (Senegal) with a
stopover in Casablanca (Morocco). The tickets cost THB 30,228 and were paid for by the
Player on 4 October 2023.
6.
On 9 October 2023, the Player was granted a visa type “NON-IMM” valid until 8 January
2024.
7.
On 17 October 2023, the Player flew from Dakar (Senegal) to Bangkok (Thailand). The tickets
cost THB 36,673.35 and were paid for by the Player.
8.
According to the Player, on 30 December 2023, a representative of the Club informed him
of the termination of the Contract. The evidence provided by the Player in this respect was
as follows:
Text message from an unidentified sender:
“Mr. Keith Nah
Krabi Football Club would like to inform you of the results of the consideration of making
a team in the 2nd leg. The club needs to cancel the contract and release some players
according to the policy of making a team in the 2nd leg. Therefore, The club would like to
inform you that you are not on the team list.
Thank you for all your dedication to the club.
pg. 5
REF. FPSD-14190
Krabi Football Club”
Screenshot of a post in the Club’s official page in Facebook:
“Thank You : Krabi FC club would like to thank all 5 players for their dedication and hard
work during the last first leg and the club wishes them success in their career path in the
future.
• Keith Nah
• Julius Chukwuma
• Saman Mohammed Soda
• Natta Thongrod
• Theeranat Ringsamut (Phattalung FC - borrowed)”
9.
According to the Player, in January 2024 he received the following text messages from the
same representative of the Club:
“keith
boss tell me
can pay for you 20,000 baht
The club committee has not approved your requested payment.
But the boss will pay for you 20,000 baht”.
10. On 10 January 2024, the Club sent the Player a notice which reads as follows, quoted
verbatim:
“Subject : Please follow the contract.
To : Mr. Keith Nah
According to Krabi Football Club There is a schedule for the Thai League 2 professional
football competition season 2023/2024, leg 2 between 6 January - 27 April 2024.
You have a contract with the club until the end of the 2023/2024 season. Since
negotiations to terminate the contract have not yet been completed, we therefore request
that you abide by the contract and must comply with the duties specified in the contract
until otherwise agreed upon.
But currently you have not trained with the team from December 31, 2023 until today,
which is a violation of your existing contract with the club.
Therefore, I have come to know and strictly comply with the contract”.
11. According to the Player, he responded to the Club's warning by text message, quoted
verbatim:
pg. 6
REF. FPSD-14190
[Player]: you are representing the club
[Club’s representative]: this is the club’s agreement to negotiate with you
[Player]: if I say you I mean Krabi fc
[Club’s representative]: when you didn’t come to practice not coming to fulfill the
contract did not agree to any negotiations. I can’t take any further action.
[Player]: unregistering me forfeit the contract
And openly saying my service wasn’t needed
And posting on the club official page
12. On 1 March 2024, the Player through his legal representatives put the Club in default. His
notice reads, inter alia, as follows, quoted verbatim:
“Dear Madam/Sir,
I refer to the employment contract signed between the Club and I valid for the 2023/2024
season.
I further refer to the notification I received on 30 December 2023 that the Club would
have to cancel the contract and that I am 'not on the team list'. Whereas I first did not
understand what that meant I have now been informed that this means I am not
registered to play official matches for the club Please note that this is a breach of
contract.
Furthermore, my work visa has expired and I had to pay an overstay penalty of Thai Baht
6,500. The club has so far not extended my work visa. The club has a responsibility to do
this for me.
In addition, I have been offered Thai Baht 20,000 to agree to terminate my contract.
Please note that I do not accept this offer and I have a contract in force until the end of
the 2023/2024 season.
As a result, please ensure within the next 5 days that:
1. I am registered with the Thai League and FA so I can play official matches for the club
2. You extend the work visa until the end of the season, i.e. 30 June 2024
3. You confirm that I am a full member of the team and in the plans of the club until 30
June 2024.
4. You reimburse me the amount of Thai Baht 6,500
pg. 7
REF. FPSD-14190
Please note that should you not comply with my requests within the deadline, I may
decide to terminate my contract invoking just cause under the FIFA Regulations on the
Status and Transfer of Players.
I thank you for taking note of the above”.
13. On 6 March 2024, the Club replied to the Player’s notice as follows, quoted verbatim:
“Now we meeting about your contract and we will sent the latter for you in this week
Krabi Football Club 0811169292”.
14. On 7 March 2024, the Player through his legal representatives reiterated his previous
notice and granted the Club an additional 5 days to remedy the breach.
15. On 10 March 2024, the Club replied to his correspondence as follows, quoted verbatim:
“According to the letter dated 1 March 2024 and 7 March 2024. the club would like to
clarify that as you understand the club has breached the contract as you claim, before
the end of the first leg on 30 December 2023, the coach has informed you that there will
be an evaluation. Operations: Who will be in the team plan? and informed you on
December 30, 2024, that your evaluation results were below the standard and were not
included in the team plan for the second leg according to contract clause7, that is,
According to the contract 7.2 Each 3 months to performance evaluate.
According to the contract 7.3 Result from 7.2 due to decrease or increase benefit or
terminate contract.
The club can cancel the contract according to clause 8 and 10 of the contract.
According to the contract 8.1 The one who not complete clause 4 and result from clause
7, the employer has authorized to terminate contract.
According to the contract 8.2 To incomplete clause 8.1 the employer shall get authorize
half of payment until the employee improved or have authorized to terminate and shall
not pay any compensate.
According to the contract 10.3 Contract shall be terminate by employer if result of
evaluations according to clause 7.3 or advance written notice, electronics
communication, verbal notice as least 1 month. In case of offences serious shall be
suddenly terminate without notice. Offences serious from clause 8, Incomplete duties
according by clause 3. Self undeveloped abilities and performance by standard of the
club’s or according or structure of schedule. The employer notice to employee not in the
pg. 8
REF. FPSD-14190
plan and structure of team.
according to the contract 10.5 Termination according to clause 10.3 the employee shall
have no authorized to request any compensate, except specify in contract only.
When the club informed you, you came to ask to negotiate with the club. But there is no
agreement yet. He disappeared, did not come to negotiate, and did not come to practice.
The club has sent a letter informing you to comply with the contract. Because the contract
has not yet been canceled. But he did not come to fulfill his promise. In fact, if you come
to comply with the contract The club will pay you the same salary as any other athlete.
Until there is an agreement to cancel the contract with each other.
From your request to negotiate with the club The committee has considered the club has
not broken any promises. Because you had left Krabi Province without informing the club
of any purpose. Therefore, it is considered that you have been absent from work for 60
days Until he came back to negotiate for the club to pay compensation on February 22,
2024, which is equivalent to not complying with the contract. The club is therefore not
required to compensate you. But the club president saw that it was necessary for him to
travel abroad. Therefore, offered to personally pay 20,000 baht, but he refused to accept
the money, so the club could not do anything else for him.
In the case of applying for a work visa as you claim that the visa you hold has expired
and you must pay a fine of 6,500 baht, the club would like to inform you that the club
has prepared visa documents and submitted them to the relevant authorities before your
visa expires. but cannot submit Because you did not come to sign the documents
required by government agencies. Therefore, unable to renew the visa. So, it's not the
club's fault. But it was your own negligence in not coming to complete the work on time.
For questions regarding the letter, you sent.
1. Contracting and registering athletes with Thai League Company As you claim, you must
be able to play. Please let me know whether you will be able to play or not. It depends
on the coach's team plan. The club must consider according to ability and
appropriateness for playing It is not registered and will be able to play every match. For
the case where the club does not grant a visa until the end of June 30, 2024, can't do it
we would like to inform you that it is not the club's fault. But it's because you neglected
it.
2. For the case where the club does not grant a visa until the end of June 30, 2024, we
would like to inform you that it is not the club's fault. But it is because you neglected your
responsibilities as mentioned above.
3. Your claim that you will be on the team until June 30, 2024, is not possible. Because
the contract specifies that it will end only at the end of the competition season, which is
pg. 9
REF. FPSD-14190
on April 30, 2024, according to the competition schedule set by the Thai League.
4. In your case when the club informs you that it is not in the team plan. You can find
another team to play. Or you can cancel your contract with the club. or the club cancels
the contract with you If you do not agree to cancel your contract, the club will have to
pay you your normal salary like any other footballer. But he did not come to fulfill his
promise. Didn't come to practice and disappeared for almost 2 months without
informing the club.
5. As for the expenses you paid for your visa, 6,500 baht, the club cannot be held
responsible. Because you did not inform the club before.
Therefore, from the case Please understand the contractual terms that you cannot claim
under FIFA regulations. about these situations Because the contract clearly states in
clause 9
According to the contract 9.1 In case of dispute between the club and footballer or unfair
of judgment, the footballer shall complaint directly to football association of Thailand.
(Fat)
According to the contract 9.2 Dispute between the club and footballer not final or unfair
of fat judgment, the footballer authorizes to claim according of Thailand court of justice
only.
And according to contract 11 Both of the parties could not agree any monitor as define
in this contract. the matter to the board of football association of Thailand allows
respondents to the conclusion. And in case of could not end shall be sentence by the
judge of the law of Thailand is terminated”.
16. On 19 March 2024, the Player notified the Club of the termination of the Contract as
follows, quoted verbatim:
“Dear Madam/Sir,
I refer to my previous notices dated 1 and 7 March 2024 and given that i) my salaries of
January and February 2024 have not been paid and ii) that the breaches of contract
mentioned in my letters have not been remedied, I herewith inform you that I formally
terminate my contract invoking just cause as per the FIFA Regulations on the Status and
Transfer of Players.
I consider myself a free player and reserve all my rights.
I thank you for taking note of the above”.
pg. 10
REF. FPSD-14190
17. The Player informed that he remained unemployed following the termination of the
Contract.
II. Proceedings before FIFA
18. On 25 March 2024, the Player filed the claim at hand before FIFA. The following is a brief
summary of the parties’ position.
a. Position of the Player
19. In his claim, the Player first alleged that he was forced to return to Senegal in October 2023
in order to renew his visa, incurring expenses in the form of flight tickets and a fine imposed
by the Thai immigration authorities for overstaying his visa – both of which were never
reimbursed by the Club.
20. He further alleged that he was informed of the Club’s intention to terminate the Contract
in January 2024. The Player referred to the text messages and the default notices
exchanged by the parties in this context and concluded that he terminated the Contract
for just cause on 19 March 2024. In support of his argument, the Player referred to FIFA
jurisprudence regarding the fundamental right of players to be registered with their
respective clubs and stressed that he was owed at least two salaries (i.e., January and
February 2024).
21. In light of the above, the Player requested to be awarded the following amounts:
•
THB 135,000 as outstanding remuneration, corresponding to the salaries from
January to March 2024 plus 5% interest from the due dates;
•
THB 6,500 as reimbursement of the fine paid as a result of his overstaying in the
country plus 5% interest s from the due dates;
•
THB 66,901.35 as reimbursement of the cost of return air tickets from Thailand
to Senegal plus 5% interest from the due dates;
•
THB 135,000 as compensation for breach of contract, corresponding to the
residual value of the Contract (i.e., the salaries from April to June 2024) plus 5%
interest from 19 March 2024.
b. Position of the Club
22. On 16 April 2024, the Club submitted its reply to the claim of the Player.
pg. 11
REF. FPSD-14190
Jurisdiction
23. The Club stated the following with regard to the jurisdiction of the Football Tribunal, quoted
verbatim:
“And according to contract Clause 11 [...], in the event that both parties are unable to
reach any agreement as specified in this contract, the matter must be brought to the
committee appointed by the Football Association to help find an agreement. In summary,
if an agreement still cannot be reached, both parties will proceed according to the
arbitration guidelines established by the Football Association of Thailand. or according
to the laws of Thailand only
The footballer has signed the agreement willingly and signed the contract without any
coercion. It is considered that the contract is effective between the club which is the
employer. and the football player, who is the contractor, agrees to accept the terms of
the said contract without any protest”.
Substance
24. On the merits, the Club claimed that after the first leg of the competition, it carried out an
evaluation of its players and decided to terminate the Contract (cf. clauses 7, 8 and 10 of
the Contract). The Club further explained the Player allegedly disappeared without
authorization as soon as he received information in December 2023 that he was not
included in the Club’s plan for the future,. The Club also added that it was at its own
discretion whether or not to register the Player.
25. The Club furthermore alleged that the Player was out of the country for approximately 60
days and only resumed contact in February 2024 when he refused the settlement amount
of THB 20,000. The Club claimed to have prepared all the necessary documents for the
Player’s visa in a timely fashion, but the Player failed to present himself to the authorities.
26. In addition, the Club challenged each of the amounts claimed by the Player, as follows:
•
Outstanding salaries:
“the club is unable to pay. Because the contract has not been cancelled but the
football players have not come to practice from December 31, 2023, to the present, it
is considered a breach of contract”.
“Missed practice many times Both with reason and without reason in the beginning
when joining the team, they cited that their health was not ready, which prevented
them from practicing and competing for a long time. In addition, there was a request
to travel out of the country. Both went to apply for a visa beyond the agreed upon
date. Haven’t practiced in over 20 days”.
pg. 12
REF. FPSD-14190
•
Overstay fine: the Player did not go to the immigration office to sign the
documents. Therefore, any problems with the visa were not the Club’s fault;
•
Reimbursement of flight tickets:
“These expenses are airfare for traveling to apply for a non-B visa in Senegal. Which
the club has operated Completed the documents for applying for the visa for [the
Player] which must travel to get a visa in Senegal According to the regulations of the
embassy but before the trip, [the Player] did not agree to travel to Senegal but would
travel to the United States. Which the club cannot proceed with Because the club has
completed the paperwork to go to Senegal. And according to the contract, the club
will be responsible for visa costs in Thailand only. Or if it is a neighbouring country,
the club is willing to cover Various expenses as well. But in the case of [the Player], it
is Senegal which has a lot of travel expenses. and is beyond the contract. But the club
president had lent money first in the amount of 40,000 baht by transferring the money
to [the Player] on September 29, 2023 (Attachment 14) and made a memorandum of
agreement to deduct 20,000 baht per month for 2 months and give Return as
scheduled within 10 days from leaving Thailand (Attachment 15)
The club thinks that [the Player] immediately left the country on that day. Because
after September 29, 2023, [the Player] did not come to practice. But on October 4,
2023, [the Player] informed that he would travel to Senegal on October 7, 2023
(Attachment 16). If he had not yet travelled, he should come and practice with the
team, not just disappear. Which is unprofessional behavior and finally returned to
Thailand on 18 October 2023 and came to practice with the team after 18 October
2023, which was beyond the agreed upon time (Attachment 17). The club can cancel
the contract according to The agreement. But the club also provides opportunities to
join teams. But will demand that the club pay for the plane ticket for the said trip.
Even though it was agreed in writing. The club is unable to process the payment”.
•
Compensation for breach of contract: according to the programme of the
Football Association of Thailand (FAT), the national competition would end on 27
April 2024 and not in June 2024, as claimed by the Player.
Furthermore: “By confirming that the club did not Breach of contract with the said
football player in any way, but it was the football player who broke the contract. Don’t
keep your word Not coming to perform according to the contract even though there
has been no agreement to cancel the contract in any way and Mr. Keith Nah also
provided untrue information to FIFA on many issues, which the club insists that the
club strictly adheres to the contract. While the footballer is with the club, the club pays
the footballer his full salary. There was no salary deduction even though the footballer
breached his contract on several occasions. And so far, there hasn’t been any
cancellation of the contract. And if a football player comes to practice according to
pg. 13
REF. FPSD-14190
the contract, the club is willing to pay his salary until the contract is fully paid. But it
was the football players themselves who did not honor their promises”.
27. The Club did not specify any request for relief.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
28. First of all, the Dispute Resolution Chamber (hereinafter: the Chamber or the 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 25 March 2024 and submitted for decision on
13 May 2024. Taking into account the wording of art. 34 of the March 2023 edition of the
Procedural Rules Governing the Football Tribunal (hereinafter: the Procedural Rules), the
aforementioned edition of the Procedural Rules is applicable to the matter at hand.
29. Furthermore, the Chamber referred to art. 2 par. 1 of the Procedural Rules and observed
that in accordance with art. 23 par. 1 in combination with art. 22 par. 1 lit. b) of the
Regulations on the Status and Transfer of Players (RSTP) (February 2024 edition), the
Dispute Resolution Chamber is in principle competent to deal with the matter at stake,
which concerns an employment-related dispute with an international dimension between
a Liberian player and a Thai club.
30. Notwithstanding the above, the Chamber noted that, notwithstanding the unclear wording
used by the Club in its reply, it appeared to dispute the FIFA’s jurisdiction over this claim
due to the exclusive jurisdiction of the FAT National Dispute Resolution Chamber.
31. In light of the above, the DRC recalled that under art. 22 par. 1 lit. b) of the FIFA RSTP, FIFA
is in principle competent to hear an employment-related dispute between a player and a
club with an international dimension. Nevertheless, the parties may explicitly decide in
writing that such a dispute shall be settled by an independent arbitration tribunal
established at national level within the framework of the association and/or a collective
bargaining agreement. Such an arbitration clause must be included either directly in the
contract or in a collective bargaining agreement applicable to the parties. The independent
national arbitration body must ensure fair proceedings and respect the principle of equal
representation of players and clubs. The deciding-body must equally respect the principles
contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations,
which entered into force on 1 January 2008.
32. On this note, the Chamber turned to the analysis of clause 11 of the Contract. For ease of
reference, the DRC recalled that such provision reads as follows, quoted verbatim:
pg. 14
REF. FPSD-14190
“Clause 11. To settle the dispute
Both of the parties could not agree any monitor as define in the this contract, the matter
to the board of football association of Thailand allows respondents to the conclusion.
And in case of could not end shall be sentence by the judge of the law of Thailand is
terminated”.
33. Having carefully analysed this clause, the Chamber considered that it lacks clarity. In the
DRC’s view, this clause seemingly refers any disagreement between the parties to “the
board of football association of Thailand” and, ultimately, to a “judge of law of Thailand”.
However, the Club has not provided any explanation regarding the internal bodies within
FAT, let alone any evidence that it complies with the Circular no. 1010 or the FIFA NDRC
Standard Regulations. Furthermore, the Club, while referring to this clause, did not make
any comments regarding the submission of the case to the ordinary courts, not even in the
alternative.
34. Consequently, due to the doubtful and non-exclusive wording of the jurisdiction clause, in
combination with the lack of substantiation by the Club as to its position, the Chamber
concluded that it should retain jurisdiction over the matter at hand (cf., art. 22, par. 1, lit. b)
of the RSTP).
35. Lastly, 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 RSTP (February 2024 edition) and considering that the present claim was lodged on 25
March 2024, the cited edition of said regulations (hereinafter: the Regulations) is applicable
to the matter at hand as to the substance.
b. Burden of proof
36. 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 TMS.
c. Merits of the dispute
37. Having established its competence and the applicable regulations, the Chamber entered
into the merits of the dispute. In this respect, the Chamber started by acknowledging all
the above-mentioned facts as well as the arguments and the documentation on file.
However, the Chamber emphasised that in the following considerations it will refer only to
the facts, arguments, and documentary evidence, which it considered pertinent for the
assessment of the matter at hand.
pg. 15
REF. FPSD-14190
i. Main legal discussion and considerations
38. The Chamber moved to the substance of the matter and took note of the fact that it
concerned a claim lodged by the Player against the Club for outstanding remuneration,
compensation for breach of contract, and reimbursement of expenses.
39. As a starting point, the Chamber highlighted that the parties do not dispute that the Club
informed the Player on 30 December 2023 that he would no longer be registered to
participate in the competitions for the remainder of the football season. In particular, and
even though the evidence submitted by the Player in this regard is not robust, the Chamber
acknowledged that the Club expressly confirmed the termination, but claimed that it was
entitled to (i) freely decide on its “players’ ability to play”; and (ii) terminate the Contract
based on the “evaluation” of the players (cf., clauses 7-10) and the Player’s absence during
the first months of 2024.
40. In this context, the Chamber determined that its task was to establish the just cause for
the termination and the consequences thereof. It proceeded then to analyse each of the
issues in dispute the parties.
A. Deregistration
41. In the first place, the Chamber emphasized that, in accordance with its well-established
jurisprudence, a player’s deregistration alone is often sufficient to justify the termination
of the employment contract since it de facto prevents them from being eligible to play for
their club (cf., Commentary on the RSTP – Edition 2023, pages 136-7).
42. In casu, the Chamber also found it relevant that the Club not only confirmed that it had
deregistered the Player but also failed to argue and produce any evidence suggesting that
its act could be remedied. Indeed, the Club expressed that the Player would not be fielded
for the remainder of the season, which confirmed to the Chamber that it was no longer
interested in retaining his services.
43. The Chamber was also reassured by the fact that the Player had given the Club more than
one opportunity to remedy the situation, to no avail.
B. Right to terminate the Contract and alleged absence of the Player
44. In continuation, the Chamber turned to the Club’s position on the contractual right to
terminate the Contract at any time.
45. In this respect, the DRC recalled its jurisprudence concerning potestative clauses, i.e.,
clauses which depend on an event that can only be triggered by one of the contractual
parties to the contract and at the latter’s will. Potestative clauses are generally voided, since
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REF. FPSD-14190
they excessively restrict the rights of the other party to the contract and place it at an
unjustified disadvantage.
46. On this note, the DRC considered that clauses 7-10 of the Contract were clearly potestative
in nature, as they left the decision to terminate the employment relationship to the sole
discretion of the Club, provided that it deemed the Player’s performance to be
unsatisfactory. In other words, the Chamber confirmed that these contractual provisions
which allowed the Club to prematurely terminate the Contract at its own discretion and at
any time were potestative and contrary to the spirit of the Regulations.
47. Consequently, the Chamber decided that clauses 7-10 of the Contract should be
considered null and void and therefore not be taken into account.
48. In addition, the DRC was aware of the Club’s position that the Player was in breach of
contract due to his absence from training and other appointments. However, the Chamber
found that no evidence of his absence had been provided and that the Club could not
demonstrate that it had taken proactive measures to retain his services (e.g., warnings,
disciplinary proceedings, default notices) – especially considering that it had just
announced its decision to deregister the Player for the remainder of the season.
C.
Interim conclusion
49. The Chamber concluded that the Club’s arguments could not succeed in any respect.
50. As a result of the multiple breaches by the Club, combined with the fact that it undisputedly
failed to pay the Player’s salaries for January and February 2024, the DRC decided that the
Contract was terminated with just cause on 19 March 2024 (cf., art. 14 the Regulations).
ii. Consequences
51. Having stated the above, the Chamber turned to the question of the consequences of such
unjustified breach of contract committed by the Club.
A. Salaries
52. The Chamber observed that the outstanding salaries at the time of termination, coupled
with the specific requests for relief of the Player, are equivalent to 3 months under the
Contract (i.e., from January until March 2024).
53. In addition, 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 at the rate of
5% p.a. on the outstanding amounts, as follows:
• THB 45,000 as the salary of January 2024, plus 5% interest p.a. from 5 February 2024;
pg. 17
REF. FPSD-14190
• THB 45,000 as the salary February 2024, plus 5% interest p.a. from 5 March 2024; and
• THB 45,000 as the salary of March 2024, plus 5% interest p.a. from 19 March 2024.
B. Reimbursement of fine and flight tickets
54. The Chamber then turned its attention to the Player’s request for reimbursement of his
fine for overstaying his visa in Thailand and the cost of his return ticket to Senegal, allegedly
in order to renew his passport/visa.
55. Accordingly, the DRC recalled that its jurisprudence is solid to establish that clubs are
responsible for taking the necessary administrative steps to allow the players to render
their services. On the other hand, players are required to cooperate with the process.
56. The Chamber considered that, in the present case and due to the lack of documentation
submitted by any of the parties, it was impossible to determine precisely what actually
happened in October 2023. Whilst the Player claimed that he had been fined and forced to
fly to Senegal to remedy the situation, the Club put forward the following argument, quoted
verbatim:
“These expenses are airfare for traveling to apply for a non-B visa in Senegal. which
the club has operated Completed the documents for applying for the visa for [the
Player] which must travel to get a visa in Senegal According to the regulations of the
embassy but before the trip, [the Player] did not agree to travel to Senegal but would
travel to the United States. which the club cannot proceed with Because the club has
completed the paperwork to go to Senegal. And according to the contract, the club
will be responsible for visa costs in Thailand only. Or if it is a neighbouring country,
the club is willing to cover various expenses as well. But in the case of [the Player], it
is Senegal which has a lot of travel expenses. and is beyond the contract. But the club
president had lent money first in the amount of 40,000 baht by transferring the money
to [the Player] on September 29, 2023 (Attachment 14) and made a memorandum of
agreement to deduct 20,000 baht per month for 2 months and give Return as
scheduled within 10 days from leaving Thailand (Attachment 15)
The club thinks that [the Player] immediately left the country on that day. Because
after September 29, 2023, [the Player] did not come to practice. But on October 4,
2023, [the Player] informed that he would travel to Senegal on October 7, 2023
(Attachment 16). If he had not yet travelled, he should come and practice with the
team, not just disappear. which is unprofessional behavior and finally returned to
Thailand on 18 October 2023 and came to practice with the team after 18 October
2023, which was beyond the agreed upon time (Attachment 17). The club can cancel
the contract according to the agreement. But the club also provides opportunities to
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REF. FPSD-14190
join teams. But will demand that the club pay for the plane ticket for the said trip.
Even though it was agreed in writing. The club is unable to process the payment”.
57. In light of the above, the Chamber determined that the Player has demonstrated that he
in fact incurred the expenses in connection with the visa. On the contrary, the Club did not
provide any evidence that (i) the visa was in any way affected by any inertia on the part of
the Player; (ii) it had in fact arranged the necessary bureaucracy with the Thai immigration
authorities; and/or (iii) it had provided for an alternative scenario in which the Player would
be granted the visa without having to pay for it. Likewise, the DRC also considered that the
Club’s acknowledgement that it had "completed the paperwork for the player to go to Senegal"
and that it had lent the Player money suggested that there was some sort of agreement.
58. Due to the particularities of the case and the Club’s unconvincing argumentation, the
Chamber decided that the latter shall be ordered to reimburse both the tickets and the
fine, as follows:
• THB 6,500, plus 5% interest p.a. from 19 March 2024. The Chamber highlighted that
as the date of payment of the fine was not entirely clear from the document
submitted by the Player, it decided to award interest from the date of the termination
of the Contract;
• THB 30,228, plus 5% interest p.a. from 4 October 2023; and
• THB 36,673.35, plus 5% interest p.a. from 17 October 2023. The Chamber again
highlighted that as the date of payment of the ticket was not entirely clear from the
document submitted by the Player, it decided to award interest from the date of the
flight.
C.
Compensation for breach of contract
59. 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.
60. In application of the relevant provision, the Chamber held that it first had to clarify whether
the pertinent employment contract contained a provision by means of which the parties
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REF. FPSD-14190
had agreed beforehand upon an amount of compensation payable in the event of breach
of contract.
61. At this stage, the Chamber observed that, in accordance with clauses 10 and 11 of the
Contract allowed the Club to terminate the Contract without paying any compensation.
However, the DRC found that these provisions were not applicable in the present case, as
it was the Player who terminated the Contract – and not the other way around. In addition,
the DRC stressed that such clauses were potestative and contrary to the spirit of the
Regulations, in particular the principle of contractual stability.
62. As a consequence, 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.
63. Bearing in mind the foregoing as well as the Player’s claim, the Chamber proceeded with
the calculation of the monies due to the Player under the terms of the Contract from the
date of its unilateral termination to the date of termination. In this respect, the DRC the
noted that the parties disagreed on the date of expiry of the Contract: according to the
Player it should be the official end of the season (i.e., June 2024), whereas according to the
Club, it should be the last match of the Thai League (i.e., April 2024).
64. On this note, the Chamber recalled that the Contract reads as follows: “Contract expire at
the end of season 2023/2024, or matches cancelled announcement from Football Association of
Thailand (FAT)”.
65. The Chamber found it unclear what “matches cancelled announcement from Football
Association of Thailand (FAT)” meant. For the DRC, such a concept was not really the same
as “the last match played in the league”, as suggested by the Club. Furthermore, the DRC did
not find any the evidence on file to suggest that this was the only competition organized
by the FAT, which could also have an impact on the determination of the expiry date of the
Contract.
66. Consequently, the Chamber decided that the Contract should be deemed valid until 30
June 2024. As a result, the DRC concluded that the amount of THB 135,000 (i.e., the salaries
from April to June 2024) serves as the basis for determining of the amount of compensation
for breach of contract.
67. In continuation, the Chamber verified 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
pg. 20
REF. FPSD-14190
compensation for breach of contract in connection with the Player’s general obligation to
mitigate his damages.
68. In this case, the Chamber found that the Player remained unemployed after the
termination of the Contract. Therefore, the Chamber concluded that no mitigation
occurred.
69. 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 and should there be mitigation. Since the latter was not the case,
the DRC decided that the Player is not entitled to receive additional compensation.
70. Consequently, based on all the above considerations and the specificities of the present
case, the Chamber decided that the Club should pay the Player the amount of THB 135,000,
which was considered as a reasonable and justified amount of compensation for breach of
contract in the present case.
71. 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 him interest on said compensation at
the rate of 5% p.a. as of 19 March 2023 until the date of effective payment.
iii. Compliance with monetary decisions
72. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24 par.
1 and 2 of the Regulations, which stipulate that, with its decision, the pertinent FIFA
deciding body shall also rule on the consequences deriving from the failure of the
concerned party to pay the relevant amounts of outstanding remuneration and/or
compensation in due time.
73. 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.
74. 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. 24 par. 2, 4, and 7 of the Regulations.
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REF. FPSD-14190
75. The Club shall make full payment (including all applicable interest) to the bank account
provided by the Player in the Bank Account Registration Form, which is attached to the
present decision.
76. The DRC recalled that the above-mentioned ban will be lifted immediately and prior to its
complete serving upon payment of the due amounts, in accordance with art. 24 par. 8 of
the Regulations.
d. Costs
77. 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.
78. 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.
79. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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REF. FPSD-14190
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Keith Nah, is partially accepted.
2.
The Respondent, Krabi FC (KBFC), must pay to the Claimant the following amount(s):
- THB 30,228 as outstanding remuneration plus 5% interest p.a. as from 4 October 2023
until the date of effective payment;
- THB 36,673.35 as outstanding remuneration plus 5% interest p.a. as from 17 October
2023 until the date of effective payment;
- THB 45,000 as outstanding remuneration plus 5% interest p.a. as from 5 February 2024
until the date of effective payment;
- THB 45,000 as outstanding remuneration plus 5% interest p.a. as from 5 March 2024
until the date of effective payment;
- THB 54,500 as outstanding remuneration plus 5% interest p.a. as from 19 March 2024
until the date of effective payment; and
- THB 135,000 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 19 March 2024 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
5.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, if full payment
(including all applicable interest) is not made within 45 days of notification of this decision,
the following consequences shall apply:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration of the ban shall
be of up to three entire and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary Committee
in the event that full payment (including all applicable interest) is still not made by the
end of the three entire and consecutive registration periods.
6.
The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
pg. 23
REF. FPSD-14190
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-14190
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this
decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request
of a party within five days of the notification of the motivated decision, to publish an
anonymised or a redacted version (cf. article 17 of the Procedural Rules Governing the Football
Tribunal).
CONTACT INFORMATION
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 25