F.I.F.A. – Players’ Status Committee / Commissione per lo Status dei Calciatori – coach disputes / controversie allenatori (2020-2021) – fifa.com – atto non ufficiale – Decision 22 September 2020
Decision of the
Single Judge of the Players' Status Committee
passed on 22 September 2020,
regarding an employment-related dispute concerning the coach Sathit Bensoh
BY:
Castellar Guimarães Neto (Brazil), Single Judge of the PSC
CLAIMANT:
SATHIT BENSOH, Thailand
Represented by Mr Salvatore Civale
RESPONDENT:
KELANTAN FOOTBALL ASSOCIATION, Malaysia
I. FACTS OF THE CASE
1. On an unspecified date, the Thai coach, Sathit Bensoh (hereinafter: the coach or Claimant), and
the Malaysian club, Kelantan Football Association (hereinafter: the club or Respondent)
concluded a Memorandum of Understanding (hereinafter: the MOU) whereby the parties
amicably settled a dispute which had arisen from the club’s unilateral termination of the
employment contract between the parties and which had been the subject of proceedings
submitted in front of FIFA in 2018.
2. According to the MOU, the club undertook to pay the coach the total amount of
MYR (Malaysian Ringgit) 175,000, as follows:
- MYR 55,000 by 20 February 2020;
- MYR 60,000 by 20 March 2020;
- MYR 60,000 by 20 April 2020.
3. Art. 5 of the MOU stipulated the following:
“In case of violation of the payment scheme and delay of 10 days for the payment of any
instalment, the coach has the right to send a written notice to the club claiming the payment
within a term of further 10 days. In case of a further failure of the club to respect its obligations,
a penalty equals to 25% will be applied”.
4. On 1 April 2020, the coach put the club in default to pay within 10 days the amount of
MYR 60,000 corresponding to the second instalment of the MOU, warning the club that, in case
of non-payment, a penalty corresponding to 25% of the whole value of the MOU would fall
due, in the amount of MYR 43,750 pursuant to art. 5 above.
5. On 6 July 2020, the coach lodged a claim against the club in front of FIFA.
6. In his claim, the coach explained that, despite the parties having entered into an amicable
settlement to the dispute, i.e. the MOU, the club failed to duly pay the amounts therein specified.
7. In light of the foregoing, the coach requested to be awarded outstanding remuneration in the
amount of MYR 120,000, corresponding to the instalments of MYR 60,000 due on 20 March
2020 and of MYR 60,000 due on 20 April 2020, plus the payment of 5% interest applicable as
from the due dates. In addition, the coach also claimed a penalty in the amount of MYR 43,750,
plus 5% interest as from 11 April 2020.
8. In spite of being invited to do so, the Respondent did not reply to the claim.
II. CONSIDERATIONS OF THE SINGLE JUDGE OF THE PLAYERS’ STATUS
COMMITTEE
1. First of all, the Single Judge of the Players’ Status Committee (hereinafter also referred to as: the
Single Judge) analysed whether he was competent to deal with the matter at hand. In this
respect, he took note that the present matter was submitted to FIFA on 6 July 2020.
Consequently, the Single Judge concluded that the June 2020 edition of the Procedural Rules is
applicable to the matter at hand (cf. art. 21 of the Procedural Rules).
2. Subsequently, the Single Judge referred to art. 3 par. 1 and 2 of the Procedural Rules and
confirmed that in accordance with art. 23 par. 1 and 4 in combination with art. 22 lit. c) of the
of the Regulations on the Status and Transfer of Players (September 2020 edition), he is
competent to deal with the matter at stake which concerns an employment-related dispute of
an international dimension between a Thai coach and a Malaysian club.
3. Furthermore, the Single Judge analysed which edition of the Regulations on the Status and
Transfer of Players should be applicable to the matter at hand. In this respect, he referred, on
the one hand, to art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players
(September 2020 edition), and on the other hand, to the fact that the present claim was lodged
with FIFA on 6 July 2020. In view of the foregoing, the Single Judge concluded that the June
2020 edition of the Regulations on the Status and Transfer of Players (hereinafter: the
Regulations) is applicable to the case at hand (cf. art. 26 par. 1 and 2 of the Regulations).
4. His competence and the applicable regulations having been established, the Single Judge
entered into the substance of the matter. In this respect, the Single Judge started by
acknowledging all the above-mentioned facts as well as the arguments and documentation on
file. However, the Single Judge emphasised that in the following considerations, he will refer
only to the facts, arguments and documentary evidence which he considered pertinent for the
assessment of the matter at hand.
5. In this respect, the Single Judge acknowledged that the Claimant and the Respondent had
concluded a Memorandum of Understanding by means of which the parties had amicably settled
a dispute which had arisen from the club’s unilateral termination of the employment contract
between the parties and which had been the subject of proceedings submitted in front of FIFA
in 2018.
6. In continuation, the Single Judge observed that pursuant to the MOU, the Respondent
undertook to pay the Claimant the total amount of MYR 175,000 in three instalments.
Moreover, the Single Judge took note of art. 5 of the MOU, according to which a penalty would
apply in the event of a delay of 10 days with regard to the payment of any instalment.
7. The Single Judge then pointed out that the Claimant had lodged a claim against the Respondent
in front of FIFA, requesting the payment of MYR 120,000 corresponding to the second and third
instalments of the MOU, as well as MYR 43,750 as the penalty set out at art. 5 of the MOU.
8. Subsequently, the Single Judge noted that the Respondent failed to provide its reply to the claim,
in spite of having been invited to do so. By not presenting its position to the claim, the Single
Judge was of the opinion that the Respondent renounced its right of defence and thus, in
principle, accepted the allegations of the Claimant.
9. Furthermore, as a consequence of the aforementioned consideration, the Single Judge
concurred that in accordance with art. 9 par. 3 of the Procedural Rules, he shall take a decision
upon the basis of the documentation already on file; in other words, upon the statements and
documents presented by the Claimant.
10. In this context, the Single Judge pointed out that it remained uncontested that the Claimant was
in fact entitled to receive MYR 175,000 as per the MOU.
11. In continuation and based on the documentation on file, the Single Judge considered that it also
remained uncontested that the Respondent had failed to pay the second and third instalments
in favour of the Claimant.
12. Consequently, the Single Judge decided that, in accordance with the general legal principle of
pacta sunt servanda, the Respondent is liable to pay to the Claimant the total amount of
MYR 120,000, corresponding to the instalments of MYR 60,000 due on 20 March 2020 and of
MYR 60,000 due on 20 April 2020.
13. In addition, taking into consideration the Claimant’s request and the constant practice of the
Single Judge of the Players’ Status Committee in this regard, the Single Judge decided to award
the Claimant interest on the above-mentioned amounts, as follows:
5% interest p.a. as from 21 March 2020 until the date of effective payment on the
amount of MYR 60,000;
5% interest p.a. as from 21 April 2020 until the date of effective payment on the
amount of MYR 60,000.
14. In continuation, the Single Judge reverted to the Claimant’s claim and observed that the
Claimant had also requested the payment of MYR 43,750 as penalty, pursuant to art. 5 of the
MOU.
15. In this regard, the Single Judge took note of the Claimant’s argumentation whereby the penalty
of 25% as set out at art. 5 of the MOU applied to the whole value of the MOU. In other words,
the amount of MYR 43,750 requested by the Claimant as penalty corresponded in fact to 25%
of MYR 175,000, i.e. the whole value of the MOU.
16. Against such background, the Single Judge wished to recall the content of art. 5 of the MOU:
“In case of violation of the payment scheme and delay of 10 days for the payment of any
instalment, the coach has the right to send a written notice to the club claiming the payment
within a term of further 10 days. In case of a further failure of the club to respect its obligations,
a penalty equals to 25% will be applied”.
17. In this respect, the Single Judge observed that, in principle, the penalty shall be due if specific
conditions are fulfilled.
18. As such, the Single Judge pointed out that firstly, art. 5 of the MOU required that the payment
of an instalment must have fallen due for a delay of at least 10 days. With regard to the case at
hand, the Single Judge noted that both the second and third instalments of the MOU had been
due for more than 10 days.
19. In continuation, the Single Judge observed that the second condition set out at art. 5 was that
the Claimant must send a “a written notice to the club claiming the payment within a term of
further 10 days”. In this respect, the Single Judge pointed out that on 1 April 2020, the Claimant
put the Respondent in default to pay within 10 days the amount of MYR 60,000 corresponding
to the second instalment of the MOU. Therefore, the Single Judge considered that by putting
the Respondent in default of payment with regard to the second instalment, the Claimant had
fulfilled the second condition of art. 5 of the MOU. Finally and as it has already been established
above, the Single Judge recalled that the Respondent failed to pay the requested amount
following the said default notice.
20. With the foregoing in mind, the Single Judge wished to underline that whilst the payment of
the penalty applied to the second instalment, the Claimant had failed to put the Respondent in
default to pay the third instalment. Therefore, the Single Judge was of the opinion that the
second condition of art. 5 of the MOU, i.e. to put the Respondent in default to pay within 10
days the relevant outstanding amount, had not been fulfilled.
21. Consequently, the Single Judge concluded that the penalty set out at art. 5 was not applicable
to the whole value of the MOU, as argued by the Claimant, but rather to each outstanding
instalment individually. As a consequence, the Single Judge decided that the payment of the
penalty shall not apply in relation to the third instalment of the MOU.
22. In view of the above, the Single Judge came to the conclusion that the Claimant shall be entitled
to a penalty of 25% of the amount of the second instalment, i.e. MYR 60,000, only.
23. Therefore, the Single Judge decided that the Respondent is liable to pay to the Claimant the
amount of MYR 15,000 as penalty, pursuant to art. 5 of the MOU.
24. For the sake of completeness and taking into consideration the Claimant’s request, the Single
Judge referred to his longstanding jurisprudence according to which no interest shall apply on
the aforementioned penalty.
25. In conclusion, the Single Judge established that any other request of the Claimant had to be
rejected.
26. Lastly, the Single Judge referred to the temporary amendments outlined in art. 18 par. 2 lit. ii)
of the Procedural Rules, which entered in force in 10 June 2020, according to which no
procedural costs shall be levied for any claim lodged between 10 June 2020 and 31 December
2020 (both inclusive), and determined given that the claim at hand was lodged on 6 July 2020,
the decision shall be rendered free of costs.
III. DECISION OF THE SINGLE JUDGE OF THE PLAYERS’ STATUS
COMMITTEE
1. The claim of the Claimant, Sathit Bensoh, is partially accepted.
2. The Respondent, Kelantan Football Association, has to pay to the Claimant, within 30 days as
from the date of notification of this decision, the following amounts:
- Malysian Ringgit (MYR) 120,000 as outstanding remuneration plus 5% interest p.a. as
follows:
o On MYR 60,000 as from 21 March 2020 until the date of effective payment;
o On MYR 60,000 as from 21 April 2020 until the date of effective payment.
- MYR 15,000 as penalty.
3. Any further claims of the Claimant are rejected.
4. In the event that the amount due to the Claimant in accordance with the above-mentioned
number 2. plus interest is not paid by the Respondent within the stated time limit, the present
matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and
a formal decision.
5. The Claimant is directed to inform the Respondent immediately and directly of the account number
to which the remittances are to be made and to notify the Single Judge of the Players’ Status
Committee of every payment received.
6. The present decision is rendered free of costs.
For the Players’ Status Committee:
Emilio García Silvero
Chief Legal & Compliance Officer
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the
Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a party
within five days of the notification of the motivated decision, to publish an anonymised or a redacted
version (cf. article 20 of the Procedural Rules).
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