F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2020-2021) – fifa.com – atto non ufficiale – Decision 21 October 2020

Decision of the

DRC Judge

passed on 21 October 2020,

regarding an employment-related dispute concerning the player Bektur Talgat Uulu

BY:

Jon Newman (USA), DRC Judge

CLAIMANT:

Bektur Talgat Uulu, Kyrgyz Republic

Represented by Mr Muhammad Azzairi Bin Rosle

RESPONDENT:

Kelantan Football Association, Malaysia

I. FACTS OF THE CASE

1. On 26 November 2019, the player from Kyrgyz Republic, Bektur Talgat Uulu, (hereinafter: the Claimant or player), and the Malaysian club, Kelantan Football Association, (hereinafter: the Respondent or club) signed an offer letter by means of which the club offered the player a one year contract, starting from 1 December 2019 until 30 October 2020 (hereinafter: the offer).

2. Pursuant to the offer, the Claimant was entitled, inter alia, to a signing fee of USD 5,000, a monthly salary of USD 5,000 as well as a “Trip Return (Economy Class)” for the player and two family members.

3. According to the player, on 15 December 2019, the parties signed a football contract covering the period from 1 December 2019 until 30 November 2020. The contract provided that the club would pay the player a monthly salary of USD 5,000 net based on Schedule A of the contract, which falls due on every 7th day of the next month. The player explained that he never received a copy of the contract.

4. The player submitted various documents in support of his allegation that the parties had concluded an employment contract:

 WhatsApp conversation dated 15 December 2019, in which Mr Shaiful, the alleged club’s representative, asked the player to contact the Club Secretary to sign the contract;

 Messenger conversation dated 13 December 2019, in which Mr Wan Rahim, the alleged Club President, welcomed the player to the team and told the player that they will meet on 15 December 2019 to sign the contract;

 WhatsApp conversation dated 20 January 2020 with Mr Husin, the alleged Club Secretary, where the player asked for a copy of the contract but got no response;

 WhatsApp conversation dated 30 November 2019 with Yusri Che Lah, the alleged Head Coach, in which they were chatting about the player’s accommodation;

 Copy of a Vehicule Use Agreement, in which it is mentioned that the tenure of the agreement will be valid “until the date the User employment contract with the Owner expired”.

5. The player explained that, as from the date of signature of the employment contract, he started providing his services for the club, such as participating in team trainings and being “involved in the pre-season matches which took place on 4 January 2020 and 10 January 2020.”

6. The player added that after the match held on 10 January 2020, the club informed him that his services were no longer needed and asked the player to return to his country and gave him the amount of MYR 10,000 as a training allowance.

7. According to the player, he refused to accept the MYR 10,000 and insisted on staying, however, the player further stated that the club threatened him that if he would not leave the club, they would call the police to evict him, his wife and son from the apartment they were staying in.

8. With regard to the above, the player held that he had no other option than to return to his country.

9. The player further held that despite he had to leave the country, he never signed any termination agreement or received any release letter from the club.

10. On 2 April 2020, the player, via the player’s football union in Malaysia, sent a letter to the club, asking about his status with it, as well as for the club to provide him with a copy of the contract signed on 15 December 2019. On 7 April 2020, the club replied that it had not made any offer to the player and that the latter had only been on trial with the club. The club also mentioned that they could not produce the contract due to the Movement Control Order (MCO).

11. On 5 May 2020, the player reiterated its request to the club in order to obtain a copy of his employment contract, however to no avail.

12. On 15 July 2020, the Claimant lodged a claim against the Respondent in front of FIFA for compensation for breach of contract, claiming, inter alia, the following amounts:

 USD 60,000 corresponding the entire value of the contract;

 USD 947.29 for the reimbursement of a flight tickets.

13. The Claimant argued that the club acted in bad faith. The player deemed that the club was trying to dispose the contract as a key evidence, and the way it ended his service at the club is to be seen as unethical, unprofessional and a coercion in order to avoid having to pay for the termination of the employment contract.

14. Despite having invited to do so, the Respondent, Kelantan Football Association, did not provide an answer to the claim.

II. CONSIDERATIONS OF THE DRC JUDGE

1. First of all, the DRC judge analysed whether he was competent to deal with the matter at stake. In this respect, the DRC judge took note that the present matter was submitted to FIFA on 15 July 2020 and decided on 21 October 2020. Thus, the June 2020 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the matter at hand.

2. Subsequently, the DRC judge referred to art. 3 par. 1 and 2 of the Procedural Rules and confirmed that, in accordance with art. 24 par. 1 and 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players, the DRC judge is competent to deal with the matter at stake, which concerns an employment–related dispute with an international dimension.

3. Furthermore, the DRC judge analysed which edition of the Regulations on the Status and Transfer of Players should be applicable as to the substance of the matter. In this respect, the DRC judge confirmed that, in accordance with art. 26 par. 1 and par. 2 of the said Regulations and considering that the present claim was lodged in front of FIFA on 15 July 2020, the June 2020 edition of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

4. The competence of the DRC judge and the applicable regulations having been established, the DRC judge entered into the substance of the matter. In this respect, the DRC judge started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the DRC 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.

15. In this respect, the DRC judge acknowledged that, on 26 November 2019, the Claimant and the Respondent signed an offer letter by means of which the club offered the player a one year contract, starting from 1 December 2019 until 30 October 2020, according to which the Claimant was entitled, inter alia, to a signing fee of USD 5,000, a monthly salary of USD 5,000 as well as a “Trip Return (Economy Class)” for him and two family members.

5. Moreover, the DRC judge took that, according to the player, on 10 January 2020 the club informed the player that his services we no longer needed.

6. Having recalled the above, the DRC judge observed that, the Claimant, in his claim, requested compensation for breach of contract in the total amount of USD 60,000 as well as USD 947.29 regarding the flight tickets to leave Malaysia.

7. The DRC judge further noted that despite having been invited to do so, the Respondent did not submit an answer to the claim. By not presenting its position to the claim, the DRC judge was of the opinion that the Respondent renounced its right of defence and, thus, accepted the allegations of the Claimant.

8. Furthermore, as a consequence of the aforementioned consideration, the DRC 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.

9. Bearing in mind the foregoing, the DRC judge considered the documentation on file and deemed that the main issue of the present dispute is to determine whether the parties were contractually bound by the offer signed on 26 November 2020.

10. In this regard, the DRC judge recalled that, in order for an employment contract to be considered as valid and binding, apart from the signature of both the employer and the employee, it should contain the essentialia negotii of an employment contract, such as the parties to the contract and their role, the duration of the employment relationship, the remuneration and the signature of both parties. After a careful study of the offer concluded between the parties, the DRC judge concluded that all such essential elements are included in the pertinent document, in particular, the fact that the contract establishes that the Claimant is entitled to receive remuneration, including a monthly salary, in exchange for his services to the Respondent as a player.

11. On account of the above, the DRC judge concluded that by having signed a document containing all the essentialia negotii on 26 November 2020, the parties indeed established between them a valid and binding employment relation and are, therefore, bound by the terms of the contract concluded between them.

12. Having established that a valid and legally binding employment contract had been in force between the Claimant and the Respondent, the DRC judge went on to analyse whether such contract had been breached and, in the affirmative, which party is to be held liable for breach of contract.

13. In this respect, the DRC judge noted that from the documentation on file, it appears that the Respondent acknowledged that the Claimant arrived to Malaysia.

14. In view of the above, the DRC judge understood that not only the parties concluded a valid and binding employment agreement (i.e. by signing the offer) but that said agreement was in fact executed, since the Claimant already exercised with the Respondent. The DRC judge further noted that, after a match held on 10 January 2020, the Respondent informed the Claimant that it would not be executing the contractual relationship.

15. In this regard, the DRC judge was eager to emphasise that only a breach or misconduct which is of a certain severity justifies the termination of a contract without prior warning. In other words, only when there are objective criteria which do not reasonably permit to expect a continuation of the employment relationship between the parties, a contract may be terminated prematurely. Hence, if there are more lenient measures which can be taken in order for an employer to assure the employee’s fulfilment of his contractual duties, such measures must be taken before terminating an employment contract. A premature termination of an employment contract can always only be an ultima ratio.

16. Referring to the concrete circumstances of the case, the DRC judge noted that no evidence was provided by the Respondent of any attempt of the club to preserve the contract before unilaterally terminating it and that the termination of the contract and the claim remained unanswered by the Respondent. Furthermore, no justification whatsoever was given by the club to terminate the contract with the player. Thus, the DRC judge concluded that the Respondent did not have just cause to prematurely terminate the employment contract with the Claimant.

17. On account of the above, the DRC judge decided that the Respondent did not have a just cause to unilaterally terminate the employment relationship with the Claimant and, consequently, the latter must bear the financial and/or sporting consequences of the early termination, in addition to any outstanding payments on the basis of the relevant employment contract.

18. Having established that the Respondent is to be held liable for the early termination of the employment contract without just cause, the DRC judge focused his attention on the consequences of such termination. Taking into consideration art. 17 par. 1 of the Regulations, the DRC judge decided that the Claimant is entitled to receive from the Respondent an amount of money as compensation for breach of contract.

19. In continuation, the DRC judge focused his attention on the calculation of the amount of compensation for breach of contract in the case at stake. In doing so, the DRC 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 Claimant under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, and depending on whether the contractual breach falls within the protected period.

20. In application of the relevant provision, the DRC judge held that he first of all had to clarify as to whether the pertinent employment contract contains 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. In this regard, the DRC judge established that no such compensation clause was included in the employment contract at the basis of the matter at stake.

21. As a consequence, the DRC 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 DRC 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. Therefore, other objective criteria may be taken into account at the discretion of the deciding body.

22. The DRC judge then turned his attention to the remuneration and other benefits due to the Claimant under the existing contract and/or the new contract, which criterion was considered by him to be essential. The DRC judge deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations allows him to take into account both the existing contract and the new contract in the calculation of the amount of compensation.

23. Bearing in mind the foregoing, the DRC judge proceeded with the calculation of the monies payable to the Claimant under the terms of the employment contract as from its date of termination without just cause by the Respondent, until the end of the contract, and concluded that the Claimant would have received in total USD 60,000 as remuneration had the contract been executed until its expiry date, taking into account his monthly salary as well as the signing fee. Consequently, the DRC judge concluded that the amount of USD 60,000 serves as the basis for the final determination of the amount of compensation for breach of contract in the case at hand.

24. In continuation, the DRC judge verified as to whether the Claimant had signed an employment contract with another club during the relevant period of time, by means of which he would have been enabled to reduce his loss of income. According to the constant practice of the DRC judge, 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. The DRC judge noted that, on 28 February 2020, the Claimant signed an employment contract with the club, Alga Bishkek, valid as from the date of signature until 31 October 2020, in accordance with which he would be remunerated with a total remuneration of approx. USD 2,864. Considering that the contract concluded by the Claimant and the Respondent would have expired on 30 October 2020, and in accordance with the constant practice of the Dispute Resolution Chamber and the general obligation of the Claimant to mitigate his damages, the amount that shall to be taken into account in the calculation of the amount of compensation for breach of contract is equal to USD 2,864.

25. In view of all of the above, the DRC judge decided that the Respondent must pay the amount of USD 57,136 to the Claimant as compensation for breach of contract without just case, which is considered by the DRC judge to be a reasonable and justified amount as compensation.

26. In addition, with regards to the Claimant’s claim pertaining to flight tickets, on the basis of the information and documentation submitted by the Claimant and referring to the relevant terms of the offer, the DRC judge decided that the Respondent must pay the Claimant the amount of USD 947.29 for said flight tickets.

27. Furthermore, taking into account the consideration under number II./3. above, the DRC judge referred to par. 1 and 2 of art. 24bis of the Regulations, which stipulate that, with its decision, the pertinent FIFA deciding body shall also rule on the consequences deriving from the failure of the concerned party to pay the relevant amounts of outstanding remuneration and/or compensation in due time.

28. In this regard, the DRC judge pointed out that, against clubs, the consequence of the failure to pay the relevant amounts in due time shall consist of a ban from registering any new players, either nationally or internationally, up until the due amounts are paid and for the maximum duration of three entire and consecutive registration periods.

29. Therefore, bearing in mind the above, the DRC judge decided that, in the event that the Respondent does not pay the amounts due to the Claimant within 45 days as from the moment in which the Claimant, following the notification of the present decision, communicates the relevant bank details to the Respondent, a ban from registering any new players, either nationally or internationally, for the maximum duration of three entire and consecutive registration periods shall become effective on the Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.

30. Finally, the DRC 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. 24bis par. 3 of the Regulations.

31. The DRC judge concluded his deliberations in the present matter by establishing that Claimant’s claim is partially accepted and that any further claim lodged by the Claimant is rejected.

III. DECISION OF THE DRC JUDGE

1. The claim of the Claimant, Bektur Talgat Uulu, is partially accepted.

2. The Respondent, Kelantan Football Association, has to pay to the Claimant, the following amounts:

1. USD 57,136 as compensation for breach of contract without just cause;

2. USD 947.29.

3. Any further claims of the Claimant are rejected.

4. The Claimant is directed to immediately and directly inform the Respondent of the relevant bank account to which the Respondent must pay the due amounts.

5. The Respondent shall provide evidence of payment of the due amounts in accordance with this decision to psdfifa@fifa.org, duly translated, if applicable, into one of the official FIFA languages (English, French, German, Spanish).

6. In the event that the amounts due, plus interest as established above are not paid by the Respondent within 45 days, as from the notification by the Claimant of the relevant bank details to the Respondent, the following consequences shall arise:

 1.

The Respondent shall be banned from registering any new players, either nationally or internationally, up until the due amounts are paid and for the maximum duration of three entire and consecutive registration periods. The aforementioned ban mentioned will be lifted immediately and prior to its complete serving, once the due amounts are paid.

(cf. art. 24bis of the Regulations on the Status and Transfer of Players). 2.

In the event that the payable amounts as per in this decision are still not paid by the end of the ban of three entire and consecutive registration periods, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee.

For the Dispute Resolution Chamber:

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).

CONTACT INFORMATION:

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