Labour Disputes
Texto da decisão
REF. FPSD-15304
Decision of the
Dispute Resolution Chamber
passed on 12 December 2024
regarding an employment-related dispute concerning the
player Willem Jan Pluim
COMPOSITION:
Lívia SILVA KÄGI (Brazil & Switzerland), Deputy Chairwoman
Roy VERMEER (The Netherlands), Member
Alejandro ATILIO TARABORELLI (Argentina & Italy), Member
CLAIMANT:
Willem Jan Pluim, The Netherlands
Represented by Wouter Van Zetten
RESPONDENT:
PSM Makassar, Indonesia
Represented by Parmars Sports
pg. 2
REF. FPSD-15304
I.
Facts of the case
1.
On 27 October 2020, the Dutch player Willem Jan Pluim (hereinafter, the Claimant or the
Player) and the Indonesian club PSM Makassar (hereinafter, the Respondent or the Club)
concluded an employment contract (hereinafter, the Contract) valid until 31 December
2024.
2.
Pursuant to the Clause 5 lit. a) of the Schedule of the Contract, the Club undertook to pay
the Player the following remuneration:
- Season 2020: USD 96,000 net as down payment on 1 November 2019 and USD 24,000
net per month;
- Season 2021: USD 75,000 net as down payment on 1 November 2020 and USD 20,000
net per month;
- Season 2022: USD 105,000 net as down payment on 1 November 2021 and USD 28,000
net per month;
- Season 2023: USD 90,000 net as down payment on 1 November 2022 and USD 24,000
net per month; and
- Season 2024: USD 90,000 net as down payment on 1 November 2023 and USD 24,000
net per month.
3.
The first page of the Contract contains the following provision:
“This Contract is governed by FIFA regulations. All disputes will be resolved by a mechanism
regulated by the FIFA Dispute Resolution Chamber (DRC) governing FIFA rules (RSTP)”.
4.
Pursuant to Clause 18 of the Contract:
“Any disagreement, dispute, lawsuit, interpretation of terms of this Contract, which cannot be
resolved by deliberation to reach consensus, shall and must be submitted to, to be examined
and decide by National Dispute Resolution Chamber (NDRC) Indonesia, whose decision is
binding on the conflicting parties as a final and binding decision”.
5.
In August 2021, and as a consequence of the COVID-19 pandemic, the Football Association
of Indonesia (PSSI) decided to change the term of its football seasons from January to
December of each year to July to June of the following year as from the 2022/2023 season.
6.
Following the aforementioned decision of the PSSI, the Parties agreed to extend the
Contract until June 2025.
pg. 3
REF. FPSD-15304
7.
On 14 August 2023, the Player put the Club in default and granted it a deadline of ten days
to pay USD 264,000 net for the following concepts and amounts:
- USD 72,000 net as part of the downpayment for the 2022-2023 season;
- USD 24,000 net for April 2023;
- USD 96,000 net as the downpayment for the 2023-2024 season;
- USD 24,000 net for May 2023;
- USD 24,000 net for June 2023; and
- USD 24,000 net for July 2023.
8.
On 28 August 2023, the Club paid the Player USD 100,000.
9.
On 31 August 2023, the Club made another payment to the Player in the amount of USD
24,000.
10.
On 10 September 2023, the Player sent another default notice to the Club requesting the
payment of the remaining amount, which amounted to USD 140,000 net. The Player
granted the Club a deadline of fifteen days to comply its contractual obligations.
11.
On 26 September 2023, the Player terminated the Contract in view of the Club’s default.
12.
On 4 October 2023, the Club paid USD 50,000 to the Player.
13.
On 6 October 2023, the Club made additional payments to the Player in the total sum of
USD 96,015.60.
14.
On 28 October 2023, the Player and the Indonesian club Borneo FC concluded an
employment contract valid as from 1 November 2023 until 31 May 2024. Pursuant to
Clause 6 of the Schedule of this new contract, the Player was entitled to receive
USD 17,000 per month.
15.
On 29 October 2023, the Player sent a letter to the Club stating, inter alia, the following:
“Accepting your apologies we agreed that for the good of all parties it was best to:
- The Player will not submit a FIFA DRC case against PSM, to claim the full outstanding as
written down in the original contract, currently USD 773,000 (apart from FIFA’s financial and
sportive penalties because of breach of contract).
- The Player and PSM will not communicate negatively in a bad way in media etc.
pg. 4
REF. FPSD-15304
During the last 3 weeks we tried to speak and settle the above with your Club CEO Mr Fajrin,
we tried to agree on an amicable settlement and sign a mutual termination instead of the
unilateral termination Art 14bis. This to avoid a FIFA Case against PSM and also the Player
never spoke badly about this situation nor PSM (despite Mahmud Aksa speaking very
disrespectfully about him lately).
The Player even accepted a 14 terms (1.5 year) instalments for the total outstanding plus the
Player agreed to lower the amount to respect the relation with Mr Sadikin.
But last week we hardly got to speak with Mr Fajrin as he does not pick up our calls nor reply
to our messages. For that reason, me and the Player concluded that we are very sorry but it
seems that we cannot find this amicable solution.
Your final offer today to pay only 50% (USD 350.000) is totally out of line, disrespectful towards
the Player, unrealistic in this situation and clearly not how to settle this matter in the best of all
parties, only for your best interest.
I am sorry but it seems that again PSM don’t want to keep their financial responsibilities and
keep the promises (as made on 1 October) to settle this in a good way.
Therefore with this letter as proof of our good-willinges to speak about settling the total amount
and agreeing on a mutual termination to avoid a bad FIFA case and bad publicity for PSM. We
are now forced to submit a FIFA claim against PSM and will claim the full amount plus extra
penalties (financial as sportive) against PSM”.
16.
On 2 November 2023, the Club sent to the Player’s agent, Mr Robert Postma, via WhatsApp
a PDF document called “Mutual Termination Agreement PSM – Pluim Final” (hereinafter, the
Settlement Agreement”).
17.
Pursuant to the Settlement Agreement sent by the Club:
“At the time of entering into this Mutual Termination Agreement (Agreement), the Player
remains entitled to receive an amount of USD 773,000 (net) under the terms of the Contract
(the Residual Contract Value), made up as follows:
USD 203,000 (net) as salary for the seasons 2020 and 2021;
USD 570,000 (net) as yearly salary for seasons 2023/(24) + 2024/(25).
The Parties have agreed to a mutual termination of the Contract and to an amicable settlement
regarding the payment of the Residual Contract Value, on the terms set out in this Agreement.
TERMS
pg. 5
REF. FPSD-15304
The Club shall, in full and final settlement of its obligation to the Player under the Contract, pay
to the Player the amount of USD 374,000 (net) pursuant to the following instalments:
1. The Club and the Player agree to mutually terminate the Contract, effective 31 May 2024.
2. The Club shall, in full and final settlement of its obligations to the Player under the Contract,
pay to the Player the Settlement Amount pursuant to the following instalments:
- For the rest season 2023/2024:
a) USD 9,000 net on or before 30 November 2023;
b) USD 19,000 net on or before 30 December 2023;
c) USD 14,000 net on or before 31 January 2024;
d) USD 14,000 net on or before 29 February 2024;
e) USD 14,000 net on or before 30 March 2024;
f) USD 9,000 net on or before 30 April 2024;
g) USD 19,000 net on or before 30 May 2024;
Totally USD 98,000 net.
- For the rest season 2024/2025:
If the Player receives USD 17,000 monthly for this season, so the Club will paid his balanced
salary totally USD 174,000 with this below installment:
a) USD 37,000 (net) on or before 28 June 2024;
b) USD 10,000 (net) on or before 28 July 2024;
c) USD 10,000 (net) on or before 28 August 2024;
d) USD 10,000 (net) on or before 28 September 2024;
e) USD 10,000 (net) on or before 28 October 2024;
f) USD 10,000 (net) on or before 28 November 2024;
g) USD 10,000 (net) on or before 28 December 2024;
h) USD 10,000 (net) on or before 28 January 2025;
i) USD 10,000 net) on or before 28 February 2025;
j) USD 10,000 (net) on or before 28 March 2025;
pg. 6
REF. FPSD-15304
k) USD 10,000 (net) on or before 28 April 2025;
l) USD 37,000 (net) on or before 28 May 2025;
Totally USD 147,000 net.
The values in letters a to s are based on what the Player received from another club with
a contract value of USD 17,000.- monthly. If there is a change in the income received by
the Player, the Parties agree to make adjustments.
- For the rest season 2024/2025:
If the Player not have club to paid his salary for this season, so the parties agreed that The
Club will be paid on basic salary of USD 378,000,- with this below installment :
a) USD 39,000 (net) on or before 28 June 2024;
b) USD 25,000 (net) on or before 28 July 2024;
c) USD 25,000 (net) on or before 28 August 2024;
d) USD 25,000 (net) on or before 28 September 2024;
e) USD 25,000 (net) on or before 28 October 2024;
f) USD 25,000 (net) on or before 28 November 2024;
g) USD 25,000 (net) on or before 28 December 2024;
h) USD 25,000 (net) on or before 28 January 2025;
i) USD 25,000 net) on or before 28 February 2025;
j) USD 25,000 (net) on or before 28 March 2025;
k) USD 25,000 (net) on or before 28 April 2025;
l) USD 39,000 (net) on or before 28 May 2025;
Totally USD 378,000 net
- For the outstanding payables:
a) USD 20,000 (net) on or before 28 January 2025;
b) USD 20,000 net) on or before 28 February 2025;
c) USD 20,000 (net) on or before 28 March 2025;
d) USD 20,000 (net) on or before 28 April 2025;
pg. 7
REF. FPSD-15304
e) USD 22,000 (net) on or before 28 May 2025;
Totally USD 102,000 net”.
18.
Also on 2 November 2023, Mr Postma replied “OK. Only Sakikin sign. We need full board +
every page paragraph”.
19.
On the same day, Mr Postma returned a copy of the Settlement Agreement signed by the
Player via WhatsApp after having crossed out one of its articles, informing the Club that
“This one is good” and that “Please put signature and you and we discuss later how to change
this with addendum or in contract”.
20.
In the version signed by the Player, the following provision was crossed out:
21.
Pursuant to Clauses 3 and 4 of the Settlement Agreement:
“3. If the Club fails to make any payment instalment to the Player in the time and manner
prescribed in clause (2) of this Agreement and continues to do so after the Player has given the
Club 14 days’ notice in writing, the full balance of outstanding payment of USD 374,000 net
(the Residual Contract Value) of this agreement shall become immediately due and payable by
the Club to the Player.
4. The Club agrees that if all instalments become due and payable under clause (3) of this
Agreement, the Club shall be required to pay 10% interest per annum on this amount from the
date upon which it becomes payable to the date of effective payment”.
22.
Clause 5 of the Settlement Agreement provided as follows:
“If, under the provision of clause (3), the balance of the Residual Contract Value due to the
Player remains outstanding (including the applicable interest under clause (4) of this
pg. 8
REF. FPSD-15304
Agreement), the Player may, without prejudice to his right to refer the matter to the civil courts,
immediately refer the Club’s breach of this Agreement to the FIFA Dispute Resolution Chamber
(DRC) for enforcement in accordance with the FIFA Regulations on the Status and Transfer of
Players (RSTP). The Club shall not challenge the jurisdiction of the DRC to hear the matter and
enforce this Agreement. The Club acknowledges and agrees that it shall be liable to pay any
costs reasonably incurred by the Player in enforcing this Agreement, including legal costs”.
23.
On 3 November 2023, Mr Postma sent the following WhatsApp message to the Club:
“Personally, I am sorry we could not find a last-minute solution yesterday, I really thought that
we could have solved it. Despite the fact we had the same meaning regarding the 378 clause,
it was all too much last minute (60 min before the game) the understand each other (…).
Today Willy ordered me to send the whole case to an official Dutch International sports Lawyer
(BMWD). They will send you/PSM a letter and they will take this case to FIFA”.
24.
Also on 3 November 2023, the Player informed the Club that he would lodge a claim
before FIFA.
25.
On 12 December 2023, the Player sent a new letter to the Club informing it that he would
proceed to lodge the relevant claim before FIFA seeking payment of USD 773,000 as
compensation for breach of contract.
26.
On 27 February 2024, Mr Postma contacted the Club via WhatsApp as follows:
“I just spoke with Willy regarding his total claim and the process with our lawyer submitting the
full salary 2023-2024-2025. You and Willy met in Balikpapan lately and Willy asked me to
contact you/PSM one last time to speak about the last settlement (Mutual Termination Letter).
This to avoid a FIFA DRC case with all negative impacts for both parties + sportive sancties such
as transferban. Willy thinks it is better to find a settlement which both parties can agree on.
Please let me know if you are open to speak about this”.
27.
According to the information available in the Transfer Matching System (TMS), on 6
September 2024 the Player was registered as an amateur player with the Dutch club Epe.
pg. 9
REF. FPSD-15304
II.
Proceedings before FIFA
28.
On 19 July 2024, the Player filed the claim at hand before FIFA. A summary of the parties’
position is detailed below.
a. Position of the Player
29.
According to the Player, soon after the Contract was concluded, the Club started to delay
the payment of his remuneration, which led to several correspondence between the
parties. In particular, the Player sustained that it was only during the course of 2023 that
the Club paid his outstanding remuneration for the seasons 2020 and 2021.
30.
The Player alleged that, in practice, the fringe benefits contractually agreed corresponded
to USD 4,400 net.
31.
The Player sustained that with the season term change, the parties agreed to extend the
Contract until 30 June 2025, and that the downpayments would be made no later than 1
May of each year, instead of on 1 November.
32.
The Player argued that when he terminated the Contract, the Club had failed to pay the
majority of the 2023/2024 downpayment as well as the May, June and July 2023 salaries.
Consequently, the Player claimed having just cause to terminate the Contract on 26
September 2023 in view of the Club’s default.
33.
The Player claimed being entitled to USD 184,800 net as outstanding remuneration for
the following concepts and amounts:
- USD 68,000 net as downpayment for the 2023-2024 season;
- USD 96,000 net as salaries for the months of May, June, July and August 2023 (i.e., USD
24,000 net each); and
- USD 20,800 net for September 2023, calculated pro rata until the date of termination.
34.
Furthermore, the Player claimed being entitled to compensation for breach of contract in
the amount of USD 777,800 net, including the fixed remuneration as from 27 September
2023 until June 2025, lodging facility, car plus driver, flight tickets and bonuses, and after
applying the mitigated and the additional compensation.
35.
The Player requested the following relief:
“1. To accept this claim;
2. To determine the Employment Contract was terminated with just cause by the Player on 26
September 2023 and condemn the Club to pay in favor of the Player:
pg. 10
REF. FPSD-15304
2.1. the outstanding base salaries, consisting of the down payment for the football season
2023-2024 (in part) and the monthly payments for the months May 2023, June 2023, July 2023,
August 2023 and September 2023 (to be calculated pro rata until 26 September 2023) in the
total amount of USD 184,800 net of taxes, plus five percent (5%) interest per annum to be
calculated from the original due dates (being 1 May 2023 for the down payment for the football
season 2023-2024 and the first day of the following month for the monthly payments) until the
effective date of payment;
2.2. the Mitigated Compensation for the breach of the Employment Contract in the amount of
USD 588,800 net of taxes, plus five percent (5%) interest per annum to be calculated from 26
September 2023 until the effective date of payment;
2.3. the Additional Compensation for the breach of the Employment Contract in the amount of
USD 189,000 net of taxes, plus five percent (5%) interest per annum to be calculated from 26
September 2023 until the effective date of payment, if any, under Article 17.1 of the FIFA RSTP
and the specificity of sport due to the most abusive attitude displayed by the Club causing an
irreparable harm to the Player.
3. To declare that any amounts granted in accordance with 2. above shall be considered as
“net of taxes” and, consequently, order the Club to provide the Player with the relevant tax
certificates attesting the payment of taxes to the competent authorities over any amounts
granted.
4. To impose on the Club a ban from registering any new players, either nationally or
internationally, in case the amounts are not paid within the 45-day deadline;
5. To order the Club to assume the entirety of the FIFA DRC administration and procedural fees,
if any”.
b. Position of the Club
36.
In its reply, the Club contested the jurisdiction of FIFA in favour of the National Dispute
Resolution Chamber (hereinafter, the NDRC) of Indonesia, which, according to the Club,
fulfils the required standards for FIFA’s recognition. In this respect, the Club argued that
the PSSI has already submitted the relevant documents in order for its NDRC to be
recognized by FIFA.
37.
The Club further sustained that, even though the preamble of the Contract indeed
provides the jurisdiction of FIFA to hear any disputes arising from it, the NDRC of
Indonesia is the competent body based on the legal principle lex specialis derogate legi
generali, as Clause 18 of the Contract is the specific provision in this instance, while the
rule contained in its preamble is the general provision. It is the Club’s view that the
pg. 11
REF. FPSD-15304
foregoing is confirmed by the fact that the Contract also provides the applicability of
Indonesian law to the dispute at stake.
38.
As to the substance of the present matter, the Club initially argued that the Player did not
attend training sessions with the Club that he was obligated to attend, and confirmed that
the parties agreed to extend the Contract until 30 June 2025, as well as that the
downpayments would be made on 1 May of the relevant year.
39.
The Club argued that the Player returned a signed copy of the Settlement Agreement only
disputing some “relatively minor points” such as the dates of payments. The Club sustained
that the parties had already entered into an amicable settlement agreement, “barring
some minor points to be agreed on, prior to the Player filing the claim before the FIFA Tribunal
seeking overdue payables and compensation that are significantly greater than the amount
agreed upon in the Settlement Agreement”. Accordingly, the Club sustained that any
amounts due to the Player must be limited to the amounts specified in the Settlement
Agreement, i.e., USD 374,000.
40.
Subsidiarily, the Club sustained that the amount claimed by the Player as outstanding
remuneration at the time of termination is incorrect, in particular, with regard to the
downpayment claimed. In this respect, the Respondent argued that the outstanding
amount on the date of termination is USD 178,800 instead of USD 184,800.
41.
Furthermore, the Club argued that on 4 and 6 October 2023, i.e., after the termination of
the Contract, it paid to the Player USD 146,015.60 in total, thus implying that the
outstanding amount owed by the Club amounts to USD 32,784.40.
42.
As to the amount claimed as compensation, the Club again argued that it was also wrong.
The Club pointed out that the amount agreed as downpayment was USD 90,000 and not
USD 96,000 as claimed by the Player. Moreover, the Club sustained that the benefits
claimed by the Player are not supported with any evidence, and that the Contract simply
provides for the Club to provide these benefits to the Player. On the other hand, the Club
argued that these benefits should not be included in the compensation as they are not
fixed amounts stipulated in the Contract. In this scenario, “the Player would have been
provided the benefits of housing, car services, and flight tickets at the expense of the Club
directly, and would not have been paid any allowance for the same”. Accordingly, and based
on the legal principle of positive interest, the Club rejected the Player’s entitlement to
these benefits, as the Player failed to demonstrate any damages in this regard.
43.
The Club also rejected the Player’s entitlement to the future bonuses claimed, as their
payment is entirely contingent on variable factors that, as such, are not guaranteed in any
sense, and as the Contract subjects its payment to the Player taking part in the relevant
achievements.
pg. 12
REF. FPSD-15304
44.
Based on the above, the Club sustained that the residual amount of the Contract is
USD 597,200 which, after mitigation, amounts to USD 478,200. Furthermore, the Club
rejected the Player’s entitlement to additional compensation, as it never mistreated him,
and it was the Player who failed to comply with his contractual duties by being absent in
multiple training sessions. Subsidiarily, the Club sustained that the additional
compensation should be limited to three monthly salaries, as no egregious circumstances
have been proven, i.e., USD 72,000, without applying the downpayment pro rata.
45.
The Club lastly argued that no interest should be awarded, as the Player has failed to
invoke the relevant dispute resolution clauses within the Settlement Agreement or,
subsidiarily, that they should be awarded from the date of filing the claim.
46.
The Club requested the following relief:
1. In light of the aforementioned points and enclosed supporting evidence by way of the
exhibited items, the Respondent respectfully and humbly requests the following:
a) To determine that FIFA does not have the jurisdiction as the competent body to hear and
rule on this matter and deem that the matter should be referred to the Indonesian NDRC;
or
b) In the alternative, should FIFA determine that it does have the jurisdiction to hear this
matter, to deem that all amounts that are owed by the Club to the Player are limited to
the amounts agreed upon in the signed Settlement Agreement, namely:
- USD 374,000.00 (Three Hundred and Seventy-Four Thousand US Dollars) with no
interest payable due to the Claimant’s failure to invoke the grievance redressal clauses
within the Settlement Agreement; or
2. In the alternative, should the FIFA Judge determine that they do have the jurisdiction to hear
this matter, but that the Settlement Agreement, for whatever reason, is not valid or to be
considered, then the Respondent respectfully and humbly requests the following:
a) To rule that the outstanding payables owed by the Club to the Player amounts to USD
32,784.40 (Thirty-Two Thousand Seven Hundred and Eight-Four US Dollars and Forty
Cents) only; and
b) To rule that the residual value of the Contract amounts to USD 597,200.00 (Five Hundred
and Ninety-Seven Thousand Two Hundred US Dollars only) and that the Mitigated
Compensation is USD 478,200.00 (Four Hundred and Seventy-Eight
Thousand Two Hundred US Dollars only); and
pg. 13
REF. FPSD-15304
c) To rule that additional compensation is not payable in this matter due to the conduct of
the Player during the term of the Contract; or
d) In the alternative, should the FIFA Judge determine that additional compensation is
payable, to rule that there are no egregious circumstances in this matter and so
additional compensation shall be limited to three (3) monthly salaries, amounting to USD
72,000.00 (Seventy-Two Thousand US Dollars only).
3. Finally, and in any case, it is evident that the Claimant’s Claim has been grossly exaggerated,
and contains fundamental inaccuracies leading to an additional burden both for the
Respondent and for the Tribunal. In light of this, it is respectfully requested that all and any
legal costs in connection with these proceedings are to be borne by the Claimant alone.
c. Replica of the Player
47.
In his replica, the Player insisted on the competence of FIFA to adjudicate the present
dispute as the Contract does not contain a clear and exclusive jurisdiction clause in favour
of the NDRC of Indonesia. According to the Player, Clause 18 of the Contract does not
exclude any ordinary courts or FIFA from deciding on disputes between the Parties.
Furthermore, the Player argued that the Contract contains an explicit jurisdiction clause
in favour of FIFA which, according to him, was the result of explicit negotiations in which
he insisted on the jurisdiction of FIFA to hear any disputes arising from the Contract.
According to the Player, the principle of lex specialis derogate legi generali is not applicable,
as there is no combination of general and specific provisions, but rather two conflicting
provisions on the very same subject. Moreover, the Player sustained that the NDRC of
Indonesia has not been recognised by FIFA and does not guarantee fair proceedings, nor
respects the principle of equal representation or the other principles contained in the FIFA
National Dispute Resolution Chamber Standard Regulations (hereinafter, the NDRC
Standard Regulations. The Player also insisted on the Regulations as the applicable law to
the present dispute.
48.
As to the substance of the dispute, the Player rejected the existence of any settlement
agreement between the parties. According to the Player, he took the initiative to negotiate
and try to settle the matter amicably, and was even willing to accept the payment of the
outstanding amount in instalments spread over a year and a half, but ultimately no
settlement agreement was executed.
49.
The Player sustained that the Club proposed to settle the amount in USD 350,000, whilst
he wanted to receive USD 770,000, which is reflected in the Settlement Agreement.
According to the Player, the WhatsApp exchanges and different communications between
the parties confirm that no settlement agreement was concluded. In this respect, “given
the initial expectations of the Club (payment of USD 350,000) and of the Player (payment of
USD 770,000) as demonstrated in Exhibit R1, the chances of the Player settling for a total
amount of USD 374,000 as suggested in the statement of reply, shall be deemed highly
pg. 14
REF. FPSD-15304
unlikely… And if there would have been an executed settlement agreement on 2 November
2023, why would there still be talks on a possible settlement on 27 February 2024?”.
50.
The Player claimed that in case any settlement agreement was concluded, the Club would
have answered and started making payments as allegedly agreed.
51.
As to the amounts claimed in his claim, the Player confirmed having mistakenly indicated
the downpayment and, consequently, lowered his claim in a total amount of USD 12,000.
52.
The Player also acknowledged the Club’s payments made on 4 and 6 October 2023 in a
total amount of approximately USD 140,000. Nonetheless, the Player argued that these
payments should not be set-off against the amounts claimed, but against earlier debts
that were still overdue from the 2020 and 2021 seasons, and which were explicitly
acknowledged in the – according to him – “draft version” of the Settlement Agreement
submitted by the Club.
53.
The Player insisted in his entitlement to receive the benefits claimed, which amounts are
“more or less confirmed by the Club” with the evidence submitted, as well as to the bonuses
claimed based on the principle of positive interest, although the Player indicated that he
“will honour the valuation applied by the FIFA Football Tribunal”.
54.
Moreover, the Player sustained that he never received any warning notice or fine for the
alleged absences, and insisted on his calculation of the compensation for breach of
contract.
55.
The Player amended his relief as follows:
“Except for the decrease of the claim with USD 12,000, as described under D sub a) of this
correspondence, the Player does not see any reason to change its claims and thus fully adheres
to the statement of claim”.
d. Duplica of the Club
56.
In its duplica, the Club insisted on the competence of the NDRC of Indonesia to hear the
present dispute, as the jurisdiction clause provided in the Contract is indeed exclusive in
favour of said deciding body. Furthermore, the Club insisted on the fact that, based on
the legal principle lex specialis derogate legi generali, Clause 18 should prevail over the
preamble of the Contract when assessing the competent body.
57.
The Club sustained that when it issued the Settlement Agreement on 2 November 2023,
Mr Postma responded “This one is good”, and further requested the Club to sign the
document and stated that they could discuss the changes regarding the payment dates
subsequently. According to the Club, the Settlement Agreement had already been
pg. 15
REF. FPSD-15304
concluded when, on 3 November 2023, the Player informed that they could not settle the
matter.
58.
Moreover, the Club argued that the Player did not dispute having signed the Settlement
Agreement.
59.
As to the amounts claimed, the Club argued that the Player confirmed in his claim not
having overdue salaries for the seasons 2020 and 2021 and, consequently, sustained
having complied with all its financial obligations during these seasons.
60.
The Club reiterated that the Player failed to prove any damages in relation to the benefits
claimed, and argued that the Player did not dispute its allegations regarding the bonuses.
61.
The Club also reiterated its allegations regarding the amount payable as compensation.
62.
The Club reiterated its request for relief.
e. Club’s unsolicited correspondence
63.
On 28 October 2024, the FIFA General Secretariat acknowledged receipt of the Club’s
duplica and informed the parties that the submission phase in the present matter was
closed in accordance with art. 23 par. 1 of the Procedural Rules Governing the Football
Tribunal (hereinafter, the Procedural Rules).
64.
On 5 November 2024, the Club filed unsolicited correspondence.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
65.
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 19 July 2024, and submitted for
decision on 12 December 2024. Taking into account the wording of art. 34 of the March
2023 edition of the Procedural Rules, the aforementioned edition of the Procedural Rules
is applicable to the matter at hand.
66.
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
October 2024 edition of the Regulations on the Status and Transfer of Players (hereinafter,
the Regulations), the DRC is, in principle, competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension between a
Dutch player and an Indonesian club.
pg. 16
REF. FPSD-15304
67.
However, the Chamber noted that the Club contested the competence of FIFA’s deciding
bodies in favour of the NDRC of Indonesia, alleging that the latter was competent to deal
with any dispute deriving from the Contract in accordance with Clause 18 thereof.
68.
The Chamber also noted that, on his part, the Player insisted on the competence of FIFA
to adjudicate the present claim, sustaining that the preamble of the Contract clearly
provides the competence of FIFA.
69.
At this point, the DRC reverted to the Transitional measures established in art. 26 par. 1
lit. c) of the Regulations (editions of October, June and February 2024), according to which
“Article 22 paragraph 1 b) and c) shall apply only to cases brought to FIFA as from 1 January
2025. Any other case shall be assessed according to the previous regulations”.
70.
Taking into account all the above, the Chamber emphasised that in accordance with art.
22 par. 1 lit. b) of the Regulations (May 2023 edition), FIFA is, in principle, competent to
hear an employment related dispute between a club and a player of an international
dimension. Nevertheless, the parties may explicitly opt in writing for such dispute to be
decided by an independent arbitration tribunal that has been established at national level
within the framework of the association and/or collective bargaining agreement. Any such
arbitration clause must be included either directly in the contract or in a collective
bargaining agreement applicable on the parties. The independent tribunal must
guarantee fair proceedings and respect the principle of equal representation of players
and clubs. Equally, the Chamber referred to the principles contained in the FIFA NDRC
Standard Regulations, which came into force on 1 January 2008.
71.
In this context, the Chamber pointed out that it should first analyse whether the
employment contract at the basis of the present dispute contained a clear and exclusive
jurisdiction clause in favour of the NDRC of Indonesia.
72.
Before doing so, the DRC referred to the Commentary on art. 22 of the Regulations, in
accordance with which “In order for the DRC to decline its jurisdiction, the following
prerequisites have to be fulfilled: (i) the club and the player must have incorporated a written,
explicit and exclusive arbitration clause into their contract, nominating the national body to
deal with any potential dispute (…)”. Furthermore, “Any opt-out from FIFA’s jurisdiction must
be made explicitly and in writing, i.e., clear and exclusive arbitration clause must be present in
the contract between the parties. If this is not the case, the DRC will confirm its own jurisdiction.
If the jurisdiction clause in favour of the national body is not exclusive, and particularly if it
actually mentions FIFA (e.g. FIFA, the FT or the DRC) FIFA remains competent to hear any
possible dispute” (cf. p. 450 of the Commentary).
73.
Moreover, as confirmed in CAS 2015/A/3579 Anorthosis Famagusta FC v. Emanuel
Perrone:
pg. 17
REF. FPSD-15304
“Where an employment contract makes reference to several courts and arbitration bodies,
including the FIFA DRC and CAS, the provision of the contract cannot be considered as an
exclusive arbitration clause in favour of the national deciding body”.
74.
With the above in mind, the Chamber observed that the preamble of the Contract
provided the following:
“This Contract is governed by FIFA regulations. All disputes will be resolved by a mechanism
regulated by the FIFA Dispute Resolution Chamber (DRC) governing FIFA rules (RSTP)”.
75.
The Chamber also observed that, pursuant to Clause 18 of the Contract:
“Any disagreement, dispute, lawsuit, interpretation of terms of this Contract, which cannot be
resolved by deliberation to reach consensus, shall and must be submitted to, to be examined
and decide by National Dispute Resolution Chamber (NDRC) Indonesia, whose decision is
binding on the conflicting parties as a final and binding decision”.
76.
After analysing the foregoing provisions, the DRC found that the Contract provided that
any disputes arising from it could be referred to the FIFA DRC and/or, at the same time,
to the NDRC of Indonesia.
77.
In view of the above, the Chamber determined that the Contract did not clearly and
exclusively establish the competence of the NDRC of Indonesia in accordance with art. 22
par. 1 lit. b) of the Regulations and the well-established jurisprudence of the Chamber in
this regard.
78.
For the sake of completeness, the DRC wished to remark that the foregoing conclusion
would also apply if, as argued by the Club, the Settlement Agreement were to be
considered as the contract at dispute in the present matter. In this regard, and without
yet addressing the validity of such contract, which analysis corresponds to the merits of
the case, Clause 5 of the Settlement Agreement provides for the exclusive jurisdiction as
follows: “If, under the provision of clause (3), the balance of the Residual Contract Value due
to the Player remains outstanding (including the applicable interest under clause (4) of this
Agreement), the Player may, without prejudice to his right to refer the matter to the civil courts,
immediately refer the Club’s breach of this Agreement to the FIFA Dispute Resolution Chamber
(DRC) for enforcement in accordance with the FIFA Regulations on the Status and Transfer of
Players (RSTP). The Club shall not challenge the jurisdiction of the DRC to hear the matter and
enforce this Agreement. The Club acknowledges and agrees that it shall be liable to pay any
costs reasonably incurred by the Player in enforcing this Agreement, including legal costs”.
79.
In light of the foregoing considerations, the Chamber determined that the first prerequisite for establishing the competence of an NDRC was not met and, therefore, without
the need to enter the analysis of any further requirement, the DRC ruled that the
pg. 18
REF. FPSD-15304
Respondent’s objection to the competence of FIFA to deal with the present matter has to
be rejected, and that the Chamber is competent, pursuant to art. 22 par. 1 lit. b) of the
Regulations, to consider the present matter as to the substance.
b. Admissibility of the Club’s unsolicited correspondence
80.
Before moving to the substance of the present dispute, the DRC acknowledged that it had
to assess ex officio the admissibility of the Club’s unsolicited correspondence.
81.
In this regard, the Chamber referred to art. 23 par. 1 of the Procedural Rules, in
accordance with which “The FIFA general secretariat will notify the parties of the closure of
the submission phase of the procedure. After such notification, the parties may not supplement
or amend their submissions or requests for relief or produce new evidence”.
82.
Based on the clear and unambiguous wording of the aforementioned provision, the
Chamber ruled that the Club’s correspondence dated 5 November 2024 is inadmissible.
c. Burden of proof
83.
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.
d. Merits of the dispute
84.
Having established the competence and the applicable regulations, the Chamber entered
into the merits of the dispute. In this respect, the Chamber started by acknowledging all
the above-mentioned facts as well as the arguments and the documentation on file.
However, the Chamber emphasised that in the following considerations it will refer only
to the facts, arguments and documentary evidence, which it considered pertinent for
assessing the matter at hand.
i. Main legal discussion and considerations
85.
The Chamber then moved to the substance of the matter, and took note of the fact that
it concerned a claim by a player against a club for breach of contract and its
consequences.
86.
First of all, the DRC noted that the Player claimed having had just cause to terminate the
Contract on 26 September 2023 based on art. 14bis of the Regulations in light of the
pg. 19
REF. FPSD-15304
repeated non-payments by the Club. Accordingly, the Player claimed to be entitled to the
remuneration that remained outstanding at the time of termination in the total sum of
USD 184,800 net for the months of May to September 2023, as well as to compensation
for breach of contract calculated on the basis of the residual value of the Contract which,
after applying the mitigated and additional compensation, amounted to USD 777,800 net.
87.
The Chamber also noted that, on its part, the Club did not dispute the fact that the Player
terminated the Contract on 26 September 2023. Nonetheless, the Club denied the Player’s
entitlement to any compensation on the basis of the conclusion of the Settlement
Agreement, by means of which the parties agreed on the amounts that the Club
undertook to pay to the Player as a result of the termination of the Contract. In particular,
the Club sustained that the Player had agreed to the conclusion of the Settlement
Agreement, which is allegedly proven by the fact that he signed said document.
88.
The Chamber then noted that, in his replica, the Player denied the existence and/or the
validity of the Settlement Agreement, although he acknowledged having signed it.
According to the Player, he sent a signed version of the Settlement Agreement to the Club,
but the Club amended some of its terms, which the Player did not accept and therefore,
ultimately, no settlement agreement was executed.
89.
In view of the foregoing allegations, the Chamber acknowledged that, before establishing
which are the amounts to be paid by the Club to the Player, it first had to determine
whether the Settlement Agreement is a valid and binding contract between the parties
which should therefore be enforced, as the outcome of the latter will affect the former.
90.
Accordingly, the DRC proceeded to analyse the following questions:
I.
Is the Settlement Agreement a valid and binding contract between the parties?
II.
Which is the amount due by the Club to the Player?
***
I.
Is the Settlement Agreement a valid and binding contract between the parties?
91.
For the purposes of the analysis of the first question, the Chamber considered it
appropriate to point out that it is not disputed that the parties signed the Settlement
Agreement submitted to the file, nor that one of its articles is crossed out.
92.
As a preliminary remark, the majority of the Chamber found that the above was sufficient
to consider the Settlement Agreement as a valid and binding contract concluded between
the parties, since the fact that one of its articles is crossed out can only affect the relevant
article, but not the agreement as a whole. In other words, the fact that the Player did not
agree with one of the articles of the Settlement Agreement and decided to return a signed
pg. 20
REF. FPSD-15304
copy to the Club after having crossed out one of its articles, does not render the
Settlement Agreement as invalid or unenforceable, but only the article that was not
agreed.
93.
Notwithstanding the above, the Chamber noted that the Player claimed to have taken the
initiative to negotiate an agreement with the Club in order to be registered and play for
his new club. In this context, according to the Player, the Club sent him an agreement with
which he did not agree with, and decided to return a signed copy of this agreement with
one of its articles crossed out. The Chamber noted that, despite the foregoing, the Player
considered that there is no agreement between the parties.
94.
The DRC also noted that, for its part, the Club argued that the Settlement Agreement was
valid, that the Player had consented to its execution, as evidenced by the fact that he had
signed it, and that the crossed-out article concerned minor points to be agreed on, such
as some of the amounts and dates of payment.
95.
In view of the foregoing allegations, the Chamber turned its attention to the evidence
submitted by the parties, and noted that the Player did not present any other version of
the Settlement Agreement, so that it was not possible to confirm the Player’s allegations
and the existence of any other agreement. Accordingly, and referring to art. 13 par. 5 of
the Procedural Rules, the majority of the DRC found that the Player’s allegations were not
backed with the relevant evidence.
96.
In fact, the majority of the Chamber considered that the WhatsApp messages presented
by the parties showed that, on 2 November 2023, the agent of the Player returned a
signed copy of the Settlement Agreement and added “This one is good” and “Please put
signature Sadikin Rajaz and you and me discuss later how to change this with addendum or in
contract”. Accordingly, the DRC, by majority, found that the Player consented to the
conclusion of the Settlement Agreement except for one of its articles; thus, he accepted
its content, save for the punctual reservation made through the specifically crossed-out
article.
97.
In other words, the Player himself decided to sign the Settlement Agreement after
crossing out one of its articles, and therefore cannot now claim that the said agreement
is invalid or unenforceable.
98.
In view of the foregoing considerations, the Chamber, by majority, determined that the
Settlement Agreement is a valid and binding contract between the parties, and should
therefore be considered in the case at stake as the contractual basis of the dispute.
II.
Which is the amount due by the Club to the Player?
99.
The above having been established, the Chamber turned to the analysis of the second
question, namely the amount payable by the Club to the Player.
pg. 21
REF. FPSD-15304
100. In this regard, the Chamber observed that, pursuant to the Settlement Agreement, the
Club undertook to pay to the Player USD 98,000 as the residual value for the 2023/2024
season, plus USD 102,000 in “outstanding payables”, resulting in a total of USD 200,000.
101. In addition, and in relation to the amounts for the 2024/2025 season, the Settlement
Agreement provides that the final amount to be paid would depend on whether or not
the Player signed a new employment contract. If the Player indeed signed a new contract,
the amount to be paid would be USD 174,000, by deducting his new salary, and if he would
not sign a new contract, the amount to be paid would be USD 378,000, which is the
amount he would have received for the 2024/2025 season had the Contract not been
terminated.
102. The Chamber noted that the article providing the deduction of the Player’s receivables
with his new salary is the one he did not agree to and the one he crossed out.
103. In this regard, and without prejudice to the fact that the aforementioned clause cannot
be taken into account because it was not accepted by the Player, the DRC noted that on 6
September 2024 the Player was registered as an amateur player with the Dutch club Epe.
In other words, and notwithstanding the unenforceability of the crossed-out clause, the
majority of the Chamber found that, in accordance with the Settlement Agreement, if the
“Player not have club to paid his salary for this season”. i.e., the 2024/2025 season, the Club
would pay a total of USD 378,000 in twelve instalments from June 2024 to May 2025. The
situation foreseen in the aforementioned clause – for which the Player made no
reservation – is precisely the one that occurred in the present case, with the Player’s
amateur registration for the 2024/2025 season. For the sake of precision, the majority of
the Chamber wished to point out that it noted that the sum of the instalments listed on
the aforementioned clause amounts to USD 328,000, and not USD 378,000. In spite of the
obvious mistake, there is no doubt as to the amount of each individual instalment.
104. In light of the foregoing, and considering that the Player did not sign a new employment
contract for the 2024/2025 season, the majority of the DRC found that the
aforementioned clause is applicable to the present case.
105. Accordingly, and considering that the Club did not dispute being in default, the majority
of the Chamber decided to award the Player the amounts agreed in the Termination
Agreement that had fallen due at the time of lodging the present claim, i.e., up until 19
July 2024, not being in a position to award any other amounts matured after such date as
their claim was premature.
106. In view of the foregoing, and bearing in mind the basic legal principle of pacta sunt
servanda, the DRC, by majority, decided that the Club is held liable to pay to the Player
USD 137,000 net, corresponding to the total amount agreed per the 2023/2024 season,
and the first instalment for the 2024/2025 season.
pg. 22
REF. FPSD-15304
107. 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% per annum on the outstanding amounts as from their due dates until the date of
effective payment, as follows:
- USD 9,000 net as from 1 December 2023 until the date of effective payment;
- USD 19,000 net as from 1 January 2024 until the date of effective payment;
- USD 14,000 net as from 1 February 2024 until the date of effective payment;
- USD 14,000 net as from 1 March 2024 until the date of effective payment;
- USD 14,000 net as from 31 March 2024 until the date of effective payment;
- USD 9,000 net as from 1 May 2024 until the date of effective payment;
- USD 19,000 net as from 31 May 2024 until the date of effective payment; and
- USD 39,000 net as from 29 June 2024 until the date of effective payment.
ii. Compliance with monetary decisions
108. 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.
109. 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.
110. 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. 24 par. 2, 4, and 7 of the Regulations.
111. 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.
pg. 23
REF. FPSD-15304
112. 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.
e. Costs
113. 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.
114. 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.
115. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 24
REF. FPSD-15304
IV. Decision of the Dispute Resolution Chamber
1.
The Football Tribunal has jurisdiction to hear the claim of the claimant, Willem Jan Pluim.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, PSM Makassar, must pay to the Claimant the following amount(s):
USD 137,000 net as outstanding amount plus 5% interest per annum as follows:
- 5% interest p.a. over the amount of USD 9,000 net as from 1 December 2023 until the
date of effective payment;
- 5% interest p.a. over the amount of USD 19,000 net as from 1 January 2024 until the
date of effective payment;
- 5% interest p.a. over the amount of USD 14,000 net as from 1 February 2024 until the
date of effective payment;
- 5% interest p.a. over the amount of USD 14,000 net as from 1 March 2024 until the date
of effective payment;
- 5% interest p.a. over the amount of USD 14,000 net as from 31 March 2024 until the
date of effective payment;
- 5% interest p.a. over the amount of USD 9,000 net as from 1 May 2024 until the date of
effective payment;
- 5% interest p.a. over the amount of USD 19,000 net as from 31 May 2024 until the date
of effective payment; and
- 5% interest p.a. over the amount of USD 39,000 net as from 29 June 2024 until the date
of effective payment.
4.
Any further claims of the Claimant are rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
6.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, if full payment
(including all applicable interest) is not made within 45 days of notification of this decision,
the following consequences shall apply:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration of the ban shall
be of up to three entire and consecutive registration periods.
pg. 25
REF. FPSD-15304
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary Committee
in the event that full payment (including all applicable interest) is still not made by the
end of the three entire and consecutive registration periods.
7.
The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 26
REF. FPSD-15304
NOTE RELATED TO THE APPEAL PROCEDURE
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this
decision.
NOTE RELATED TO THE PUBLICATION
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request
of a party within five days of the notification of the motivated decision, to publish an
anonymised or a redacted version (cf. article 17 of the Procedural Rules Governing the Football
Tribunal).
CONTACT INFORMATION
Fédération Internationale de Football Association – Legal & Compliance Division
396 Alhambra Circle, 6th floor, Coral Gables, Miami, Florida, USA 33134
legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 27