Labour Disputes
Texto da decisão
REF. FPSD-12166
Decision of the
Dispute Resolution Chamber
passed on 6 December 2023
regarding an employment-related dispute concerning
the player Alan Jonathan Robertson
BY:
Calum BEATTIE (Scotland)
CLAIMANT:
Alan Jonathan Robertson, South Africa
Represented by Evert De Bruyn
RESPONDENT:
Kedah Darul Aman Football Club, Malaysia
pg. 2
REF. FPSD-12166
I. Facts of the case
1. On 4 January 2023, the South African player Alan Robertson (hereinafter: the Claimant or the
player) and the Malaysian club Kedah Darul Aman Football Club (hereinafter: the Respondent or
the club) concluded an employment contract valid until 31 December 2023 (hereinafter: the
Contract).
2. In accordance with Schedule A of the Contract, the Claimant is entitled to:
USD 6,500.00 Nett per month and must be paid no later than the 7th of the following month
3. Schedule B of the Contract states inter alia as follows:
b) Free medical benefit inclusive of hospitalisation expenses to the Player by the medical officer
appointed by the Club. Payment for specialist treatment and dental treatment is not included
unless previously mutually agreed upon by the Club. The maximum liability of the Club under this
Clause shall not exceed RM 1,200.00 per year.
(…)
d) Other benefits as agreed upon between the Club and the Player: -
4. On 8 September 2023, the Claimant sent a default notice requesting the amount of USD 13,000
corresponding to the months of July and August 2023, and granted 15 days to comply, to no
avail.
5. On 24 September 2023, the Claimant terminated the Contract adducing just cause.
6. On 8 November 2023, the Claimant informed that he remained unemployed.
pg. 3
REF. FPSD-12166
II. Proceedings before FIFA
7. On 11 October 2023, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Position of the Claimant
8. The Claimant states that he was paid with several delays during the employment relationship
and was short paid a total of USD 1,560.18, on his monthly salaries as follows:
“January 2023 salary – USD 231,10, due on 7 February 2023
January 2023 sign on fee – USD 231,10, due on 7 February 2023
February 2023 salary – USD 218,35, due on 7 March 2023
March 2023 salary – USD 231,10, due on 7 April 2023
April 2023 salary – USD 222,75, due on 7 May 2023
May 2023 salary – USD 215,11, due on 7 June 2023
June 2023 salary – USD 210,67, due on 7 July 2023”
9. Moreover, the Claimant states that the Respondent undertook to provide him with free medical
benefits, in the sum of RM 1,200 per year and he incurred medical expenses in the sum of RM
761,65, which the Claimant paid for himself, equal to USD 161,42.
10. The Claimant sustains that he terminated the Contract with just cause and he is entitled to
compensation. The Claimant states that the residual value equals USD 26,000 and he is also
entitled to additional compensation in the amount of 3 monthly salaries (USD 19,500).
11. The Claimant filed the following requests for relief:
the Claimant requests that the following order be made :
payment in the sum of USD 462,20 nett, plus interest at a rate of 5% per annum as from 7 February
2023;
payment in the sum of USD 218,35 nett, plus interest at a rate of 5% per annum as from 7 March
2023;
payment in the sum of USD 231,10 nett, plus interest at a rate of 5% per annum as from 7 April
2023;
payment in the sum of USD 222,75 nett, plus interest at a rate of 5% per annum as from 7 May
2023;
payment in the sum of USD 215,11 nett, plus interest at a rate of 5% per annum as from 7 June
2023;
payment in the sum of USD 161,42 nett, plus interest at a rate of 5% per annum as from 16 June
2023;
payment in the sum of USD 210,67 nett, plus interest at a rate of 5% per annum as from 7 July
2023;
payment in the sum of USD 6 500,00 nett, plus interest at a rate of 5% per annum as from 7 August
2023;
payment in the sum of USD 6 500,00 nett, plus interest at a rate of 5% per annum as from 7
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REF. FPSD-12166
September 2023;
payment in the sum of USD 26 000,00 nett, together with interest thereon at a rate of 5% from 25
September 2023;
payment in the sum of USD 19 500,00 nett, together with interest thereon at a rate of 5% from the
date of this claim;
b. Position of the Respondent
12. Despite being invited to file its position, the Respondent did not reply to FIFA.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
13. First of all, the Single Judge (hereinafter also referred to as Single Judge) analysed whether he
was competent to deal with the case at hand. In this respect, he took note that the present
matter was presented to FIFA on 11 October 2023 and submitted for decision on 06 December
2023. 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.
14. Subsequently, the Single Judge referred to art. 2 par. 1 and art. 24 par. 1 lit. a) 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 (May 2023), he is competent to deal
with the matter at stake, which concerns an employment-related dispute with an international
dimension between an South African player and a Malaysian club.
15. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he confirmed that, in accordance with art. 26 par. 1 and
2 of the Regulations on the Status and Transfer of Players (May 2023 edition), and considering
that the present claim was lodged on 11 October 2023, the May 2023 edition of said regulations
(hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
16. The Single Judge 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 Single Judge stressed the wording of
art. 13 par. 4 of the Procedural Rules, pursuant to which it may consider evidence not filed by
the parties, including without limitation the evidence generated by or within the Transfer
Matching System (TMS).
pg. 5
REF. FPSD-12166
c. Merits of the dispute
17. His competence and the applicable regulations having been established; the Single Judge
entered into the merits of the dispute. In this respect, the Single Judge started by acknowledging
all the above-mentioned facts as well as the arguments and the documentation on file. However,
the Single Judge emphasised that in the following considerations it will refer only to the facts,
arguments and documentary evidence, which it considered pertinent for the assessment of the
matter at hand.
i. Main legal discussion and considerations
18. The foregoing having been established, the Single Judge moved to the substance of the matter
and took note of the fact that he had to adjudicate on the justice of the early termination of the
contract by the Claimant, based on the alleged non-payment of certain financial obligations by
the Respondent as per the contract, in accordance with art. 14bis of the Regulations.
19. In this context, the Single Judge acknowledged that his task was to determine, based on the
evidence presented by the parties, whether the claimed amounts had in fact remained unpaid
by the Respondent and, if so, whether the formal pre-requisites of art. 14bis of the Regulations
had in fact been fulfilled. Furthermore, the Single Judge underlined that the Respondent had
failed to reply to the claim hence the Claimant’s allegations remained uncontested.
20. The Single Judge then referred to the wording of art. 14bis par. 1 of the Regulations, in
accordance with which, if a club unlawfully fails to pay a player at least two monthly salaries on
their due dates, the player will be deemed to have a just cause to terminate his contract,
provided that he has put the debtor club in default in writing and has granted a deadline of at
least 15 days for the debtor club to fully comply with its financial obligation(s).
21. The Single Judge noted that the Claimant claims not having received his remuneration
corresponding to the months of July and August 2023, as well as other amounts for previous
months. Furthermore, the Single Judge noted that the Claimant has provided written evidence
of having put the Respondent in default on 8 September 2023, i.e. at least 15 days before
unilaterally terminating the contract on 24 September 2023.
22. The Single Judge also noted that in the case at hand the Respondent bore the burden of proving
that it indeed complied with the financial terms of the contract concluded between the parties.
Nonetheless, the claim remained uncontested by the Respondent.
23. Thus, the Single Judge concluded that the Claimant had a just cause to unilaterally terminate the
contract, based on art. 14bis of the Regulations.
ii. Consequences
24. The Single Judge observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the Claimant, are equivalent to three monthly
salaries (July to September 2023) equivalent to USD 19,500 net (USD 6,500 net * 3 months).
pg. 6
REF. FPSD-12166
25. Moreover, the Single Judge decided to award the amounts which the Claimant claims to have
not received as part of his salary between January and July 2023 as indicated in para. 8 above.
26. As to the amount claimed as medical expenses, MYR 761.65, the Single Judge underscored that
based on the Contract the Respondent had agreed to cover such expenses. Thus, the Single
Judge decided to award the amount which the Claimant paid for this concept.
27. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the
Single Judge decided that the Respondent is liable to pay to the Claimant the amounts which
were outstanding under the contract at the moment of the termination, i.e. USD 21,060.18 net
and MYR 761,65.
28. In addition, taking into consideration the Claimant’s request as well as the constant practice of
the Single Judge in this regard, the latter decided to award the Claimant interest at the rate of
5% p.a. on the outstanding amounts as from the respective due dates until the date of effective
payment.
29. Having stated the above, the Single Judge 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 Single Judge
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.
30. In application of the relevant provision, the Single Judge held that he first of all had to clarify
whether the pertinent employment contract contained a provision by means of which the
parties had beforehand agreed upon an amount of compensation payable by the contractual
parties in the event of breach of contract.
31. In this regard, the Single Judge established that no such compensation clause was included in
the employment contract at the basis of the matter at stake.
32. As a consequence, the Single Judge determined that the amount of compensation payable by
the Respondent to the Claimant had to be assessed in application of the other parameters set
out in art. 17 par. 1 of the Regulations. The Single Judge recalled that said provision provides for
a non-exhaustive enumeration of criteria to be taken into consideration when calculating the
amount of compensation payable.
33. Bearing in mind the foregoing as well as the claim of the player, the Single Judge proceeded with
the calculation of the monies payable to the player under the terms of the contract until its term.
Consequently, the Single Judge concluded that the amount of USD 19,500 net (i.e. USD 6,500 net
* 3 monthly salaries form October to December 2023) serves as the basis for the determination
of the amount of compensation for breach of contract.
pg. 7
REF. FPSD-12166
34. In continuation, the Single Judge 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 Single Judge as
well as art. 17 par. 1 lit. ii) of the Regulations, such remuneration under a new employment
contract shall be taken into account in the calculation of the amount of compensation for breach
of contract in connection with the player’s general obligation to mitigate his damages.
35. In this respect, the Single Judge noted that the player remained unemployed since the unilateral
termination of the contract.
36. The Single Judge referred to art. 17 par. 1 lit. ii) of the Regulations, according to which, in case
the player did not sign any new contract following the termination of his previous contract, as a
general rule, the compensation shall be equal to the residual value of the contract that was
prematurely terminated.
37. In this respect, the Single Judge decided to award the player compensation for breach of
contract in the amount of USD 19,500 net, as the residual value of the contract.
38. Lastly, taking into consideration the player’s request as well as the constant practice of the Single
Judge in this regard, the latter decided to award the player interest on said compensation at the
rate of 5% p.a. as of the date of termination until the date of effective payment.
iii. Compliance with monetary decisions
39. Finally, taking into account the applicable Regulations, the Single Judge 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.
40. In this regard, the Single Judge 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.
41. Therefore, bearing in mind the above, the Single Judge 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.
42. 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.
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REF. FPSD-12166
43. The Single Judge 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
44. The Single Judge 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 Single Judge decided that no procedural costs were to be imposed on the
parties.
45. Likewise, and for the sake of completeness, the Single Judge recalled the contents of art. 25 par.
8 of the Procedural Rules and decided that no procedural compensation shall be awarded in
these proceedings.
46. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
pg. 9
REF. FPSD-12166
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Alan Jonathan Robertson, is partially accepted.
2.
The Respondent, Kedah Darul Aman Football Club, must pay to the Claimant the following
amount(s):
- USD 21,060.18 net and MYR 761,65 as outstanding remuneration plus 5% interest p.a. as
follows:
On USD 6,500 net from 7 August 2023 until the date of effective payment;
On USD 6,500 net from 7 September 2023 until the date of effective payment;
On USD 6,500 net from 24 September 2023 until the date of effective payment;
On USD 462,20 net from 7 February 2023 until the date of effective payment;
On USD 218,35 net from 7 March 2023 until the date of effective payment;
On USD 231,10 net from 7 April 2023 until the date of effective payment;
On USD 222,75 net from 7 May 2023 until the date of effective payment;
On USD 215,11 net from 7 June 2023 until the date of effective payment;
On USD 210,67 net from 7 July 2023 until the date of effective payment;
On MYR 761,65 net from 24 September 2023 until the date of effective payment.
-
USD 19,500 net as compensation for breach of contract without just cause plus 5% interest
p.a. as from 24 September 2023 until 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.
7.
This decision is rendered without costs.
pg. 10
REF. FPSD-12166
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 11
REF. FPSD-12166
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. 12