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 4 November 2020

Decision of the

DRC Judge

Passed on 4 November 2020,

regarding an employment-related dispute concerning the player Narupon Wild

BY:

Alexandra Gómez Bruinewoud (Uruguay & The Netherlands), DRC Judge

CLAIMANT:

NARUPON WILD, Thailand

Represented by Ms Susanah Ng

RESPONDENT:

PERSUATAN BOLASEPAK MELAKA, Malaysia

Represented by Mr Mohd Zhafri Bin Aminurasid

I. FACTS

1. On 7 February 2020, the Thai player Narupon Wild (hereinafter: the player or Claimant) and the club concluded an employment contract (hereinafter: the contract), valid as from the date of signature until 30 November 2020.

2. According to Schedule A of the contract, the player was entitled to monthly salary of USD 8,000, which must be paid no later than the 7th of the following month. The contract also provided a fixed currency rate: USD 1 = Malaysian Ringgit (MYR) RM 4.10.

3. The player was also entitled to the following benefits pursuant to Schedule B lit. g):

- Sign on fee: Malaysian Ringgit (MYR) 32,800;

- A car or MYR 1,000 as car allowance;

- Furnished apartment or MYR 2,000 as housing allowance;

- Flight tickets: 1 flight ticket economy class for the player and spouse from the player’s hometown at the beginning of the season and 1 flight ticket economy class for the player and spouse to the player’s hometown at the end of the season;

- Medical and insurance covers.

4. As per art. 8.6, 8.7 and 8.8 of the contract, the contract could be terminated as follows:

“8.6 This contract may be terminated for "sportinq just cause" by a player in 15 days following the last official match of the season of the Club, provided that the player has played less than 10% of the total matches involving the club in the M-league or competition. Due consideration shall be given to the players circumstances in the appraisal of such cases. The existence of a sporting just cause shall be established on a case-by-case basis.

8.7 This contract may be terminated without any effect of any kind (either payment or compensation or imposition of sporting sanctions) if the Player does not receive his salary on more than one occasion. The player must:

i. Having not paid a salary for more than one occasion, the player shall write a letter to the club secretary or manager expresses his intention to terminate the contract

ii. After stating his intention to terminate the contract, the player has the right to negotiate with any new club, without having to get permission from the current club. In such a case, the club shall release his transfer certificate (SPN) unconditionally as soon as the contract terminated and no further compensation or transfer fee may apply to new club.

8.8 This contract may be terminated without any kind of effect to the club (either payment or compensation or imposition of sporting sanctions) if the player does the following:

i. The player failed to attend training and to follow the schedule of the club for a month without reasonable excuse or authorized official leave.“

5. Lit. g) par. i. of Schedule B also set out the following termination of the contract:

“The player agree that the player must receive Key Performance Indicator (KPI) set by the club and this KPI will be review during second transfer registration period. Failure of the player to achieve the KPI set by the club will enable the member to terminate the player’s contract immediately with compensation of two (2) months salaries only. The player agrees not to have any clause of action against the club after receiving the payment of the compensation mentioned above”.

6. By means of a letter dated 18 April 2020, the player informed the club that his salaries of February and March 2020, as well as a flight ticket for his wife and the sign-on fee were still outstanding. In this regard, the player referred to a meeting with the club dated 16 April in which the club proposed a salary reduction for the months of April, May and June 2020 due to “the Movement Control Order (MCO) imposed by the Government of Malaysia”. Although the player expressed empathy for the club’s situation during covid-19, the player asked the club to first pay all outstanding amounts before an agreement could be concluded. As such, the player requested the payment of MYR 104,005 on or before 20 April 2020 and asked the club to arrange the player’s work visa on his passport within 5 days. Once the foregoing shall be done, the player accepted to defer 20% of his salaries of April until November 2020 or alternatively to have a reduction of salary of 15% on his salaries of April, May and June 2020 and in consideration be offered an extra year contract for the year 2021 with a monthly salary of USD 10,000 plus existing benefits. Finally, as a third alternative, the player offered a mutual termination of the contract with a compensation of 6 months salaries and housing allowance payable by 30 May 2020.

7. On 24 April 2020, the player noted that the outstanding amounts had not been paid. As such, the player granted the club a final deadline to 27 April 2020 to make the payment.

8. On 5 May 2020, the player referred to a verbal discussion whereby the club accepted to pay the outstanding amounts in instalments as follows:

“(1) Part payment of the February 2020 salary in the sum of RM10,000 by 27 April 2020;

(2) Remaining payment of the February 2020 salary in the sum of RM22,800 by “first week of May 2020”;

(3) March salary 2020 in the sum of RM32,800 be paid by “third week of May 2020”; and

(4) Remaining Overdue Payables as per letter dated 18 April 2020 (i.e. signing on fees, reimbursement for air tickets, March and April 2020 housing allowance etc.) be paid by June 2020.”

9. In this context, the player acknowledged receipt of MYR 10,000 in cash. As such, the player reminded the club of the upcoming deadlines of 8 May and 22 May to make the further payments.

10. On 18 May 2020, the player requested the payment of the outstanding amount of MYR 128,805 within 15 days, i.e. 1 June 2020.

11. On 27 May 2020, the player referred to phone and WhatsApp conversations and recalled the outstanding amounts due to him. Moreover, the player reminded the club that his work visa still had to be endorsed on his passport.

12. On 8 June 2020, the player granted a new deadline of 15 days for the club to pay the outstanding amounts (namely “Remaining March 2020 salary in the sum of RM22,800; April 2020 and May 2020 salaries in the sum of RM65,600; May 2020 housing allowance in the sum of RM2,000; Signing on fees in the sum of RM32,800; Two (2) economy air tickets and airport transfer expenses in the sum of RM3,140.00; and Hotel on arrival in the sum of RM465”), failing which the player would terminate the contract and to take the necessary steps to have the player’s passport endorsed with his work visa.

13. On 24 June 2020, the player notified the club of the termination of the contract with immediate effect.

14. On 30 June 2020, the club informed the player that it had paid the full salary of February 2020, MYR 10,000 towards the salary of March 2020 and MYR 10,000 towards the salary of April 2020. Moreover, the club contested the unilateral termination of the player, invoking the following reasons:

(a) the Coronavirus Pandemic has caused Malaysia football league to be suspended started from 15th March 2020 until further notice by the government;

(b) all training and matches are cancelled which mean your client has not perform any duties to the Club from 15th March 2020 until 22nd June 2020. Yet your client decided to terminate the contract on 24th June 2020 after the Club was just allowed to resume training;

(c) Based on FIFA Covid-19 Football Regulatory Issues on April 2020, FIFA has declared that Covid-19 is a case of force majeure for FIFA and football;

(d) Football Association of Malaysia (FAM) on 1st May 2020 issues a guideline regarding to salary adjustment applicable for the club and players. The Club is allowed to deduct maximum of 30% from the actual salary during Covid-:19 until the league resume; and

(e) It is clearly stated that any unpaid salary after the deduction made to the actual salary will be considered as "deferred'. Therefore, the Club is only obliged to pay the balance of the salary after the league is resume.

15. On the same day, i.e. 30 June 2020, the player expressed his surprise “with the Club’s sudden change in tone. As for 29 July 2020 night, Club personnel was still trying to persuade our Client to revoke his Notice of Termination”. As such, “as our Client had rejected the offer, the Club now alleges the termination is premature and without just cause.” Moreover, the player replied to the points raised by the club in its letter, as follows:

1. our Client had not performed any duties to the Club from 16 March 2020;

2. FIFA had declared Covid-19 as a case of force majeure for FIFA and football;

3. based on Football Association of Malaysia (FAM) guidelines, the Club is allowed to

deduct a maximum of 30% from our Client’s salary until the league resumes; and

4. any unpaid salary after deduction will be considered “deferred” and the Club is only obliged to pay the balance after the league has resumed.

16. In his claim, the player stated that he had tried to negotiate with the club, suggesting 3 different options to face covid-19. However, the club never replied

17. He held that he terminated the contract with just cause, considering that more than 2 months salaries were outstanding.

18. Following the termination, the club arbitrarily paid the amount of MYR 10,000 directly to the player’s bank account, allegedly as part of the salary of April 2020.

19. The player explained to have returned to Thailand on 15 March 2020, just before the lockdown due to covid-19, to escort his pregnant wife and toddler. The club agreed to pay for the airfare tickets related to this return. However, at the airport, the player was informed that he would be deported because there was no visa on his passport. After discussion with the airport authorities, the player received a final warning that the necessary visa must be endorsed on his passport.

20. On 16 March 2020, the Malaysian League was suspended and right after that the president of the club left his position.

21. The player further explained that on 16 June 2020, players were requested to be present at the club to undergo covid-19 tests. As requested by the club he also provided all his receipts for the flights back to Thailand and hotel.

22. Following the termination, the player alleged that the club requested the player to withdraw the termination.

23. At the moment of termination, the player argued that the following amounts were due:

- Part of March 2020 salary in the sum of MYR 22,800;

- Part of April 2020 salary in the sum of MYR 22,800;

- Part of May 2020 salary in the sum of MYR 32,300;

- Signing on fees in the sum of MYR 32,800;

- Costs of Two (2) economy air tickets and airport transfers in the sum of MYR 3,279.12;

- Costs of overnight hotel stay in the sum of MYR 465.

24. The player then argued that contrary to what the club argued, the FAM Guidelines do not apply as the club never tried to negotiate prior to 22 April 2020 and never replied to any letters of the player. Therefore, it is clear that there was no reduction or decision to reduce the player’s salaries. Moreover, the FAM Guidelines also indicated that the clubs which have salary arrears as of March 2020 cannot impose any pay cuts.

25. In light of the above, the player requested outstanding remuneration in the amount of MYR 41,624.12 and compensation for breach of contract in the amount of MYR 182,210, specified as follows:

The outstanding amount of MYR 141,624.12 is calculated as follows:

- MYR 32,800 as sign-on fee;

- MYR 22,800 as partial March 2020 salary;

- MYR 22,800 as partial April 2020 salary;

- MYR 32,500 as partial May 2020 salary;

- MYR 25,146.70 as pro-rata June 2020 salary;

- MYR 1,533.30 as pro-rated June 2020 housing allowance;

- MYR 3,279.12 as air tickets and airport transfer;

- MYR 465 as overnight hotel stay.

The compensation of MYR 182,120 is calculated as follows:

- Pro-rated June 2020 salary: MYR 7,653.30

- Pro-rated June 2020 housing allowance: MYR 466.70;

- July-November 2020 salaries: MYR 32,800 x 5 months: MYR 164,000;

- July-November 2020 housing allowance: MYR 2,000 x 5 months: MYR 10,000.

“In this regard, the Claimant submits that his housing allowance forms part of his negotiated salary package”.

Furthermore, the player requested:

- additional compensation in the amount of MYR 104,400 due to overdue payables;

- additional compensation due to egregious circumstances in the amount of MYR 69,600;

- 5% interest p.a. as from the respective due dates;

- legal costs;

- reimbursement of two economy air tickets.

26. In its reply dated 18 August 2020, the club indicated that the player participated in 4 Malaysian Super League matches before the league was suspended on 16 March 2020 due to the COVID-19 outbreak. The club refers to the FIFA Covid-19 Guidelines and claims that the pandemic is recognised as a force majeure situation and thus clubs may make arrangements to unilaterally modify the employment contracts or provide otherwise appropriate support to its players during the pandemic.

27. Due to the difficult financial situation it found itself in, the club held a meeting with the players on 16 April 2020 and proposed a salary reduction of up to 30% during the suspension of the League, as instructed by the Football Association of Malaysia (FAM).

28. The club also acknowledges having received the player’s default notice of 18 April 2020 with three different proposals for the payment of his salaries, none of which it could accept. “As the [club failed to reach a mutual agreement with the [player] for salary deduction, it is decided by the [club] will pledge to pay the full salary for February, March and April. The [club] will only start to deduct 20% of the [player]’s salary from May, June and July”. The club also states that it could not accept the player’s proposal of 20 May 2020, discussed via Whatsapp.

29. The club further indicates that on 22 June 2020 it was allowed by the government to resume training and that on 24 June 2020 the player terminated that contract. Also on 24 June 2020, the club claims to have paid all players part of the April 2020 salary. Thus, the club deems that “it is clear by the conduct of the [player] that he is only interested to terminate the contract early and subsequently demand for excessive compensation to the [club] without considering financial difficulties faced by the [club] due to COVID-19”.

30. The club claims to have paid the player the following amounts:

31. Thus, on the date of termination, the club only owed the player the following amounts:

- Sign on fee in the amount of MYR 32,800

- Balance for April in the amount of MYR 22,300

- May salary in the amount of MYR 25,740

- June salary in the amount of MYR 25,740.

32. More in detail, the club deems that the player’s termination was without just cause for the following reasons:

“a) Based on FIFA COVID-19 Guideline clearly allows the Club to suspend all agreements between the Club and employees during any suspension of competition (Malaysian Super League) provided proper insurance coverage is maintained, and adequate alternative income support arrangements can be found for employees during the suspension period;

b) Therefore, the Respondent's obligation to pay the salary to the Claimant is also suspended and the Respondent has made adequate payment to the Claimant during the suspension period of Malaysian Super League as income support to the Claimant and maintain proper insurance coverage;

c) From the start of Malaysian Super League suspension i.e. on 15th March 2020, the Respondent has paid to the Claimant total sum of RM52,300.00 before the Claimant terminate his Contract unilaterally on 24th June 2020 as stated in para 23 above. Three months' salary is equivalent to RM98,400.00. Clearly showed that the Respondent has paid 53% from total salary during the suspension period;

d) Within 3 months of the suspension period before the Claimant terminate the Contract, the Respondent has paid to the Respondent adequate alternative income and still maintained insurance coverage for the Claimant;

e) Under such circumstances, the Respondent cannot be considered as "unlawfully" failing to pay the Claimant salary as this is clearly allowed by FIFA during suspension of football activities due to COVID-19 subject to the Respondent maintaining a proper insurance coverage and providing an adequate income support;

f) Before the suspension of Malaysian Super League, the Respondent only owed to the Claimant one and half month salary (February and half March) since the football activities in Malaysia was suspended on 15th March 2020. For signing on fee payment of RM 32,800.00 it is not stated in any of clause in the Contract showing the date of payment shall be made to the Claimant. Therefore, sign on fees shall not be considered as part of unpaid salary payment to the Claimant; and

g) Accordingly, the Respondent submit that the Claimant has failed to fulfil all the requirement stated under Article 14bis RSTP to allow the Claimant to terminate the Contract with just cause”.

33. Therefore, the club lodged a counterclaim against the player, requesting the following:

“- Pursuant to Article 17 (1) RSTP clearly stated that in all cases, the party in breach shall pay compensation.

- The Respondent humbly request that the Claimant to pay the Respondent as compensation the sum equivalent to the residual of the Contract (5 months) for the sum of RM164,000.00.

- This compensation amount shall be set off to any unpaid obligation by the Respondent to the Claimant.

- Pursuant to Article 17 (3) RSTP states that sporting sanction shall also be imposed on any player found to be in breach of contract during the protected period. This sanction shall be a four-month restriction on playing in official matches. Therefore, the Respondent humbly request FIFA to imposed four-month banned to the Claimant”.

34. Alternatively, the club makes the following comments about several specific topics:

(a) Flight ticket reimbursement:

The club points out that according to Schedule B of the contract, the player is only entitled to one flight ticket (economy class) for him and his wife at the start of the seasons and at the end of the season. Thus, the club does not have the obligation of paying for the flight tickets of his toddler, airport transfer and hotel costs. The club indicates that the player’s flight tickets costs “Thai Bhat (THB) 8,432.10 (RM1, 133.29)” and his wife’s “THB 8,432.10 (RM1, 133.29)”, totalling “THB 16,864.20 (RM2,266.58) and not RM3,279.12”.

(b) Apartment rental:

According to schedule B of the contract, the player was entitled to accommodation in a furbished apartment for RM 2,000 per month. He however chose an apartment for which the rental amounts to RM 2,500 per month, thus the club is entitled to deduct RM 500 from the player’s salary each month until June 2020. The club claims to have paid the February rental and the deposit for the apartment in the amount of RM 6,875 and to have paid directly to the landlord the rent for the months of March to June 2020. Thus, there are no accommodation payments outstanding.

(c) Working visa:

In this respect, the club claims that the player arrived in Malaysia on 6 February 2020 and that the “normal lifetime for prepare for the visa approval for any import football player in Malaysia is between 1-3 months”. All government entities were closed as from 18 March 2020 due to the pandemic and the immigration office only re-opened on 13 May 2020. Thus, the club claims that it would manage to arrange the player’s visa approval on 17 June 2020, but he terminated the contract on 24 June 2020.

(d) Deduction of salaries due to Covid-19:

The club claims that the decision to reduce the players’ salaries was only taken by the club’s management on 10 August 2020. Prior to that decision, the club only tried to negotiate the deduction of 20% of the player’s salary as from May to July 2020. The club further claims that its letter to the player of 30 June 2020 was “merely to inform that the [player] has terminate his contract without just cause and to inform the direction given by Football Association of Malaysia (FAM) and FIFA. There is no confirmation on deduction of salary in that letter. We strongly believe that the Claimant has misunderstood the meaning of that letter”. In fact, the club claims that as per the FIFA and the FAM Covid-19 Guidelines it is entitled to reduce the player’s salary by 20%, since:

“a. The Respondent had attempted to reach a mutual agreement with the Claimant;

b. The economic situation of the Club is severely affected due to COVID-19 pandemic;

c. 20% deduction is proportionate;

d. Net income of the Claimant after deduction is RM25,740.00;

e. the decision applied to the entire squad”.

(e) Partial payment of April 2020 salary:

The club rejects having paid the player’s salary on April 2020 (RM 10,000) on 24 June 2020 “as an 'afterthought' to justify that the Claimant has terminate his contract without just cause”.

(f) No reply to first, second, third and termination notices:

The club vehemently denies not having replied to the player’s default and termination notices. In particular, it claims to have replied to the termination notice of 18 April 2020 requesting the player to provide evidence of the flight costs, which was only provided on 15 June 2020, including several amounts which are not due by the club as per the contract. Following the player’s default notice of 18 May 2020, the club claims to have made “two payment equivalents to RM32,300.00 in the same month to the Claimant for balance of February salary and part payment for March. Also in reaction to the player’s notice of 8 June 2020 the club claims to have paid RM 10,000 as part of the April salary. “Therefore, the Respondent has acted in good faith and has reasonably responded to any of the Claimant demands. It is the Claimant who refused to meet the Respondent's officer to try and find any amicable settlement between parties”.

(g) Player’s request for procedural costs:

This request should be rejected in line with art. 18 par. 4 of the Procedural Rules.

(h) Egregious circumstances:

The club rejects the player’s allegation that the case displays egregious circumstances, since the club always tried to minimise the damages arising from the Covid situation and find an amicable settlement with the player, which refused to cooperate, unlike other players.

35. In conclusion, the club requests the DRC judge to decide that the player’s claim is dismissed and its counterclaim accepted.

36. In his replica, the player fully rejected the club’s counterclaim.

37. First, the player claims that the club “misapplied the FIFA Covid 19 Guidelines on suspension of contract for reasons as follows:

“6.1 the Claimant was never once notified that the Contract has been suspended. On the contrary, the Claimant was given weekly home workout programs to perform;

6.2 The Respondent’s 30 June 2020 letter expressly states that part payment of the March 2020 and April 2020 salaries have been made. Additionally, it also states that the Respondent have the right to deduct a maximum thirty percent (30%) of salary and that this portion shall be deemed “deferred” and payable once the MSL resumes. This obviously evidence the Respondent’s position that the Contract was never suspended;

6.3 It is a lie that the total sum of RM52,300 was paid prior to Termination. As at Termination, only RM42,300 was paid. The remaining sum of RM10,000 was transferred in the evening of 24 June 2020, after the deadline of the Article 14bis notice (i.e. 23 June 2020) had expired and also after the Contract was terminated (at noon2);

6.4 it is ridiculous and contrary to the spirit and intention of the FIFA Covid-19 Guidelines which requires “proper insurance coverage and adequate alternative income support arrangements” during the period of suspension if payment of the Claimant’s overdue salaries (February 2020 and part of March 2020) paid during the alleged period of suspension is deemed as part of the adequate alternative income support!

6.4.1 It is obvious that the full salary for February 2020 in the sum of RM32,800 and pro-rated salary of March 2020 in the sum of RM16,400 both of which fell due before the suspension of the MSL, ought to be deducted from the RM42,300 paid prior to Termination to show the real “adequate alternative income support” during the period of the MSL suspension.

6.4.2 Once these amounts are deducted, it is crystal clear that there was NO income support during the period of suspension and in fact, a deficit, forcing the Claimant and his family to live off the Claimant’s own savings!”

38. The player further rejected the club’s argument according to which, due to the alleged suspension of the contract, the requirements of art. 14bis of the RSTP were not met. Furthermore, the player points out that the club’s statement according to which only the amounts displayed in point 32 above were outstanding by the time of termination are “nothing but lies. In fact, this contradicts the evidence and submissions of the Respondent. The Respondent:

9.1 at the preceding paragraph [23] of its Reply expressly admits to paying the balance for March 2020 salary on 15 July 2020, and part payment for April 2020 salary on 24 June 2020. These were clearly made after the prescribed 15 days deadline (i.e. 23 June 2020) in the Claimant’s Final Demand dated 8 June 20203 had lapsed and after the Contract was Terminated; and

9.2 in its 30 June 2020 letter4 expressly admits to having only paid the February 2020 in full and RM10,000 each for March 2020 and April 2020 salaries (the Claimant again reiterates that the RM10,000 as part payment of April 2020 salary was paid only after Termination)”.

39. In any case, the player points out that even if only the amounts indicated by the club in point 32 above were outstanding by the time of termination he would still have a just cause as per art. 14bis of the RSTP as they correspond to more than 2 monthly salaries. Finally, the player deems that any payment made after 23 June 2020 is irrelevant to the determination of the just cause, since they were made after the deadline of 15 days granted for payment.

40. The player further rejects the club’s decision to deduct 20% of the player’s salary. If such decision was indeed made on 10 August 2020, as claimed by the club, it is in fact irrelevant for the present case since the contract was terminated on 24 June 2020 and the decision cannot apply retroactively.

41. Furthermore, the player deems that “the FIFA Covid-19 Guidelines and FAM Guidelines are not applicable in this case as:

13.4.1 There was no attempt to reach a mutual agreement or to negotiate in good faith to vary the financial terms of the Contract. Whilst the Claimant acknowledges that a meeting on 16 April 2020 to propose a salary reduction took place, as evidenced by the Respondent’s own letter to FAM dated 20 April 2020,6 the Claimant did not provide any immediate response and on 18 April 2020 counter proposed different options to vary the Club’s financial obligations. No response was received on this. There is clearly no attempt by the Respondent to negotiate.

13.4.2 After follow-up demands for the outstanding salaries (in full amounts) were made, the Respondent, one (1) month after the 18 April 2020 letter contacted the Claimant to inquire if the Claimant can accept two (2) months compensation for the mutual termination of the Contract. The Claimant counter proposed on a without prejudice basis a more reasonable amount as compensation but did not receive any response from the Respondent. In any event, these negotiations obviously are not envisaged under the umbrella of the FIFA Covid 19 Guidelines encouraging clubs and employees to negotiate a variation to the financial terms of the Contract and thus are irrelevant in assessing whether parties had attempted to negotiate in good faith prior to any unilateral salary deduction […].”.

42. In reply to the specific arguments made by the club in point 35 above, the player stated the following:

(a) Reimbursement of flight ticket, airport transfer and hotel:

The player rejects this argument of the club, since it was “obvious that the toddler will be accompanying his mother (the Claimant’s wife) when travelling to Malaysia prior to the Covid 19 lockdown. As for the airport transfer and overnight hotel stay, the Claimant repeats paragraph 18 of his Statement of Claim”.

(b) Apartment rental:

The player “admits to renting an apartment for RM2,500 per month and that the Respondent had unilaterally decided to deduct RM500 from his salary to pay the landlord directly. Oddly, according to the Respondent’s own evidence at Exhibit Musa-9, the Respondent only paid the May and June 2020 rental on 16 July 2020, three (3) weeks after the Termination”.

(c) Egregious Circumstances:

In this respect, the player mentions that the club “disputes the existence of egregious circumstances because:

20.1 There Contract was suspended and there was adequate income support. The Claimant repeats paragraph [6.4] above. There was NO income support. The Claimant and his family had to live off the Claimant’s own savings. This was repeatedly communicated to the Respondent;

20.2 The progress payment were made after the Termination;

20.3 The visa ought to have been arranged immediately after the execution of the Contract. The Respondent had more than one (1) month after the execution of the Contract and before the Covid-19 lockdown to organise this. The Respondent took more than (1) month after the governmental offices were re-open to organise this;

20.4 The Claimant at all material times patiently waited for the Respondent to fulfil its promises to pay the outstanding salaries. It is bad faith for the Respondent to allege that the Claimant is the only import player who refused to give his cooperation”.

(c) Amounts to be deducted

The player admits to receiving the following amounts:

- RM 22,300 on 15 July 2020;

- RM 10,000 on 24 July 2020;

- RM 22,300 on 7 August 2020;

- RM 15,740.00 on 11 August 2020; and

- RM15,740 on 10 September 2020.

(Total: RM 86,080)

In this respect, the player states to have “no issues to have these amounts deducted from the compensation due to him”.

43. In conclusion, the player “requests that the FIFA DRC allows its prayer for relief at paragraph [85] of its Statement of Claim less such amounts received”.

44. The player informed FIFA that he remains unemployed up until today.

II. CONSIDERATIONS OF THE DRC JUDGE

1. First of all, the Dispute Resolution Chamber (DRC) judge (hereinafter also referred to as judge) analysed whether she was competent to deal with the case at hand. In this respect, she took note that the present matter was submitted to FIFA on 7 July 2020. Taking into account the wording of art. 21 of the June 2020 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.

2. Subsequently, the DRC judge referred to art. 3 par. 1 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition August 2020), the DRC judge is competent to deal with the matter at stake. The matter concerns an employment-related dispute with an international dimension between a Thai player and a Malaysian club, and the competence is not disputed by the parties.

3. In continuation, the DRC judge analysed which regulations 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 2 of the Regulations on the Status and Transfer of Players (August 2020 edition), and considering that the claim was lodged on 7 July 2020, the March 2020 edition of the aforementioned regulations (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 it will refer only to the facts, arguments and documentary evidence, which it considered pertinent for the assessment of the matter at hand.

5. Having said that, the DRC judge acknowledged that on 7 February 2020, the player and the club signed an employment agreement valid as from the date of signature until 30 November 2020, pursuant to which the club undertook to pay to the player, inter alia, the following amounts:

 A monthly salary of USD 8,000, payable no later than the 7th day of the following month, paid out via a fixed currency rate of USD 1 = MYR 4.10, therefore, the amount of MYR 32,800.

 MYR 32,800 as a sign-on fee;

 MYR 1,000 as car allowance;

 MYR 2,000 as housing allowances;

 Flight tickets as follows ‘1 flight ticket economy class for the player from the player’s hometown at the beginning of the season and 1 flight ticket economy class for the player and spouse to the player’s hometown at the end of the season’.

6. What is more, the DRC judge noted that the player explained that on 24 June 2020, he had terminated the contract in force between the parties, invoking a just cause based on art. 14bis of the FIFA Regulations, because of several outstanding salaries. On 18 April, 24 April, 18 May and 8 June 2020, the player had put the club in default, requesting the payment of the overdue amount, corresponding to several amounts due in the period between June 2019 and March 2020, and providing – on 27 May and 8 June 2020 - a 15 days’ deadline to comply with said request, however to no avail.

7. The player, on the one hand, maintained that the club – throughout the entire duration of the contract - failed to timely pay him some of the amounts he was contractually entitled to and that on 15 March 2020, just before the lockdown due to the COVID-19 pandemic, he returned from Malaysia to Thailand to escort his wife and toddler. Thereafter, on 16 March 2020, the Malaysian league was suspended according to the player, and – according to the player – on 16 June 2020, the club requested the players to come back to Malaysia to undergo a COVID-19 test.

8. Moreover, the player argues that he did not return to the club, but terminated the contract on 24 June 2020, after the club had ignored several of his default letters and the parties were not able to find an amicable solution to the pending outstanding salaries.

9. The DRC judge noted that the club, on the other hand, rejected the claim put forward by the player and lodged a counterclaim against him, claiming the total amount of MYR 164,000 as compensation or breach of contract without just cause by the player, as well as that sporting sanctions would be imposed on the player.

10. In this respect, the club argued that the COVID-19 pandemic is a force majeure situation as per the FIFA COVID-19 Guidelines and that it could unilaterally decide to reduce the salaries of the player’s contract with 30% during the suspension of the Malaysian league, as instructed by the Football Association of Malaysia.

11. What is more, the club argues that it could not accept any of the amicable settlement solutions offered by the player and that on 24 June 2020, the day the player unilaterally terminated the contract, the sign-on fee, as well as the salaries for April, May and June 2020 were outstanding. However, the club also argues that the sign-on fee has no due date, so therefore cannot be considered as outstanding salary, and that as a result, only 1.5 monthly salary was outstanding at the date of the termination of the contract by the player.

12. The club finally argues that the player terminated the contract without just cause, as the contract was suspended, the contractual financial obligations of the club were also suspended and that it paid in total 53% from the total salary during the suspension period. As such, the club deems that it provided adequate income support to and maintained insurance coverage for the player.

13. The DRC judge highlighted that the underlying issue in this dispute, considering the diverging position of the parties, was to determine as to whether the contract had been terminated, with or without just cause, by the player on 24 June 2020. The DRC judge also underlined that, subsequently, it would be necessary to determine the consequences of the early termination of the contractual relation.

14. The DRC judge, first of all, wished to highlight that the unilateral termination of the contract by the player on 24 June 2020, was based on the fact that several contractually agreed amounts due to the player, were not timely paid by the club. The club, on the other hand, while not contesting the outstanding amounts in the player’s claim, pointed out that the contract was suspended and that it had the right to reduce the player’s salaries, in light of the COVID-19 pandemic. Therefore, the club deems that the unilateral termination was made by the player without just cause.

15. Having said that, the DRC judge wished to refer to the fact that, in light of the worldwide COVID-19 outbreak, FIFA issued a set of guidelines, the COVID-19 Guidelines, which aim at providing appropriate guidance and recommendations to member associations and their stakeholders, to both mitigate the consequences of disruptions caused by COVID-19 and ensure that any response is harmonised in the common interest. Moreover, on 11 June 2020, FIFA issued an additional document, referred to as FIFA COVID-19 FAQ, which provides clarification about the most relevant questions in connection with the regulatory consequences of the COVID-19 outbreak and identifies solutions for new regulatory matters.

16. Analysing the concept of a situation of force majeure, the DRC judge pointed out that, based on the contents of the FIFA COVID-19 Guidelines and the FIFA COVID-19 FAQ, FIFA did not declare that the COVID-19 outbreak was a force majeure situation in any specific country or territory, or that any specific employment or transfer agreement was impacted by the concept of force majeure.

17. In other words, in any given dispute, it is for a party invoking force majeure to establish the existence of said event under the applicable law/rules as well as the consequences that derive in connection thereto. The analysis of whether a situation of force majeure existed has to be considered on a case-by-case basis, taking into account all the relevant circumstances.

18. Furthermore, the DRC judge recalled that the aforementioned COVID-19 documents issued by FIFA - as per the explicit wording of FAQ no. 16, as well as pages 6 and 7 of the FIFA COVID-19 Guidelines - are only applicable to “unilateral variations to existing employment agreements”. Therefore, except where a termination of a contract occurred following a unilateral variation made as a result of COVID-19 (in which case the validity of the variation must first be assessed under the guidelines), said guidelines do not apply to assess unilateral terminations of existing employment agreements. The DRC judge further noted that for the assessment of disputes that are presented before the FIFA judicial bodies concerning the unilateral termination of a contract, the FIFA Regulations as well as the established jurisprudence of the Chamber, shall apply.

19. Following these general observations, the DRC judge went on to analyse whether in the matter at hand, the parties had made a unilateral variation to their existing employment agreement.

20. In this respect, the DRC judge noted that the club is of the opinion that the contract is suspended and that it validly reduced the player’s salaries with 30%, in line with the Football Association of Malaysia (FAM) COVID-19 Guidelines, and that such allegation could be considered as a unilateral variation to the employment relationship between the parties. As a result, the DRC judge concluded that the FIFA COVID-19 Guidelines and the FIFA COVID-19 FAQ are applicable to the matter at hand.

21. Following these conclusions, the DRC judge analysed the factual circumstances that eventually led the player to unilaterally terminate his contract.

22. First of all, the DRC judge reiterated the contents of art. 12 par. 3 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.

23. What is more, the DRC judge deemed it important to outline that from the information on file, it could not be clearly established that the club tried to negotiate the unilateral variation with the player in good faith. From the information on file, it merely follows that the club unilaterally decided to suspend the contract of the player and to impose a salary reduction of 30%.

24. In addition, despite the fact that the club was of the opinion that the suspension of the contract and the reduction of the salary was made in line with the COVID-19 Guidelines from the FAM, it failed to provide a copy of the Decree of the Malaysian FA which allegedly allowed for the reduction of the player’s remuneration, and further only provided an untranslated version of the FAM COVID.19 Guidelines.

25. Furthermore, the DRC judge also noted that the club did not provide any evidence on the basis of which it could be concluded that the unilateral variation was valid based on national law was provided, or that it was the result of fair negotiations with a player’s union.

26. The DRC judge further wished to pointed out (a) the document dated 20 April 2020, submitted together with the club’s reply, clearly mentions that no agreement was found with the player for the reduction of his salary and (b) that the club also claims that a decision to reduce the salaries was formally taken by the club only on 10 August 2020, i.e. much after the termination.

27. Finally, the DRC judge noted that the club claims to have maintained a proper insurance coverage and provided an adequate income support, but that it did not provides evidence of such insurance coverage. What is more, the DRC judge wished to point out that the amounts the club paid after the suspension and /or termination were meant to settle outstanding remuneration due as per the contract, so those payments cannot be considered as “income support”.

28. In view of the above, the DRC judge concluded that the club was not able to demonstrate to her satisfaction that as per the FAM COVID-19 Guideline and/or national Malaysian law, it was allowed to (temporarily) suspend the employment contract of the player and/or to reduce his salaries.

29. Having analysed the alleged suspension of the contract and salary reduction as from 16 April 2020, the DRC judge turned their attention to the outstanding amounts that are claimed by the player and that fell due (partially) before this date. As to the position of the club whether there exists any justification for the non-payment of the salaries before the suspension of the contract, the DRC judge noted that the club did not bring forward any valid arguments in this respect.

30. Likewise, the DRC judge pointed out that the salary payment for March 2020 should have been paid already before the alleged suspension of the contract and/or the outbreak of the pandemic. Specifically, the DRC judge concluded that the COVID-19 outbreak shall not be used as an opportunity to escape from debts that fell due already at an earlier stage.

31. Bearing in mind the above considerations, the DRC judge concluded that the club had not provided any valid justification for the non-payment of the amounts that were outstanding at the time of the unilateral termination of the contract by the player.

32. Subsequently, the DRC judge observed that the player had unilaterally terminated the contract on 24 June 2020, after he had put the club in default on 18 April 2020 (for the salaries for February and March 2020, as well as the flight ticket for his wife and the sign-on fee) and on 8 June 2020. In both default letters, the player granted the club a deadline of 15 days to comply with its financial obligations.

33. In this respect, reference was made to art. 14bis par. 1 of the Regulations, which, inter alia, stipulates that, in the case of a club unlawfully failing 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).

34. What is more, apart from the fact that it remained uncontested by the club that the salaries for March, April and May 2020 were not paid, the DRC judge deemed it vital to outline that the club’s argument that the sign-on fee had no pay date and could be paid until the end of the season, cannot be sustained. Even though no pay date is stipulated in the contract, the DRC judge deemed that it is the very nature of the sign-on fee to be due for the signature of the contract, at the start of it.

35. Additionally, the DRC judge deemed it important to point out that it remained undisputed between the parties that the club did not manage to provide the player with a proper visa at the start of the contract, which is also one of the club’s obligations.

36. On account of all the above-mentioned considerations, specifically considering that, when the player terminated the contract on 24 June 2020, more than two salary payments were due, i.e. the salaries for April, May and June 2020, as well as the sign-on fee and also the costs for the reimbursement of the flight ticket or the player’s wife, despite the fact that the player provided the club with 15 days to remedy the default.

37. As a result, the DRC judge decided that the player had just cause to unilaterally terminate the employment relationship on 24 June 2020 based on art. 14bis par. 1 of the Regulations. Consequently, the club is to be held liable for the respective consequences.

38. First of all, the DRC judge concurred that the club must fulfil its obligations towards the player as per the employment contract up until the date of termination of the contract in accordance with the general legal principle of “pacta sunt servanda”.

39. In this respect, the DRC judge noted that the player claimed that he was entitled to MYR 32,800 as sign-on fee, two monthly salaries of MYR 22,300 each for March and April 2020, and an amount of MYR 32,300 as salary for May 2020. Furthermore, the DRC judge took into account that an amount of MYR 86,060 was made by the club to the player after the claim in the matter at hand was lodged, the receipt of which was confirmed by the player.

40. In addition, the DRC judge established that there is also a contractual basis, as well as documentary evidence submitted by the player on file, on the basis of which the amount of THB 5,560.72, related to a flight ticket for the player’s wife, could be awarded to the player.

41. On this basis the DRC judge decided that the club is liable to pay to the player the salaries that were outstanding at the time of the termination, i.e. the amount of MYR 23,620, as the remaining debt for the period between the signing of the contract and May 2020, as well as the amount of THB 5,560.72 as reimbursement of the costs of the flight tickets for the player and his wife.

42. In addition, taking into account the player’s claim as well as the Chamber’s longstanding jurisprudence in this respect, it was decided to award the player interest of 5% p.a. on the amount of MYR 23,620 as of from 7 June 2020, as well as 5% p.a. on the amount of THB 5,560.72 as of from 25 June 2020.

43. In continuation, the DRC judge decided that, taking into consideration art. 17 par. 1 of the Regulations, the player is entitled to receive from the club compensation for breach of contract in addition to any outstanding remuneration on the basis of the relevant employment contract.

44. In this context, the DRC judge outlined that, in accordance with said provision, 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.

45. In application of the relevant provision, the DRC judge held that it first of all had to clarify whether the pertinent employment contract contained any clause, by means of which the parties had beforehand agreed upon a 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.

46. Subsequently, and in order to evaluate the compensation to be paid by the club, the DRC judge took into account the remuneration due to the player in accordance with the employment contract as well as the time remaining on the same contract, along with the professional situation of the player after the early termination occurred. In this respect, the DRC judge pointed out that at the time of the termination of the employment contract on 24 June 2020, the contract would run until 30 November 2020.

47. Consequently, taking into account the financial terms of the contract, as well as the claimed amounts and the reference period referred to by the player, the DRC judge concluded that the remaining value of the contract in the period between 24 June 2020 until the regular expiry of the contract on 30 November 2020 can be specified as follows:

- 6 x MYR 32,800 = MYR 196,800 as 6 monthly salaries in the period between June and November 2020;

- 6 x MYR 2,000 = MYR 12,000 as 6 monthly housing allowances in the period between June and November 2020.

As a result, the DRC judge decided that the amount of MYR 208,800 shall serve as the basis for the final determination of the amount of compensation for breach of contract.

48. In continuation, the DRC judge remarked that following the early termination of the employment contract at the basis of the present dispute, the player was not able to find new employment. As a result, the player was not able to mitigate his damages.

49. In view of all of the above, the DRC judge decided that the club must pay the amount of MYR 208,800 to the player as compensation for breach of contract without just case, which is considered by the DRC judge in this particular matter, given the circumstances described above, to be a reasonable and justified amount as compensation.

50. In addition, taking into account the player’s claim as well as the Chamber’s longstanding jurisprudence in this respect, it was decided to award the player interest of 5% p.a. as of 7 July 2020 on the compensation payable.

51. Finally, the DRC judge decided to reject the request for additional compensation was rejected, since the members did not find any particular reason for such adjustment. Furthermore, reference was also made to art. 17 par 1. lit ii of the Regulations, which provides for additional compensation only in case the player was able to mitigate his damage and the early termination of the contract being due to overdue payables. None of these cumulative conditions are met in the matter at hand.

52. In conclusion, the DRC judge decided that the club is liable to pay the amounts of MYR 23,620 and THB 5,560.72, corresponding to the player’s outstanding remuneration at the time of the unilateral termination of the contract with just cause by the player and the amount of MYR 208,800 corresponding to compensation for breach of contract.

53. Moreover, the Dispute Resolution Chamber (DRC) judge decided to reject the player’s claim pertaining to legal costs in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s respective longstanding jurisprudence in this regard.

54. The DRC judge concluded her deliberations in the present matter stipulating that any further claim lodged by the player is rejected. In conclusion, the player’s claim is partially accepted and the club’s counterclaim is rejected.

55. 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 her 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

56. 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

57. Therefore, bearing in mind the above, the DRC judge decided that, in the event that the club does not pay the amounts due to the player within 45 days as from the moment in which the player, following the notification of the present decision, communicates the relevant bank details to the club, 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 club in accordance with art. 24bis par. 2 and 4 of the Regulations.

58. 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.

III. DECISION OF THE DRC JUDGE

1. The claim of the Claimant/Counter-Respondent, Narupon Wild, is partially accepted.

2. The counterclaim of the Respondent/Counter-Claimant, Persuatan Bolasepak Melaka, is rejected.

3. The Respondent/Counter-Claimant has to pay to the Claimant/Counter-Respondent, the following amounts:

- Malaysian Ringgit (MYR) 49,860 as outstanding remuneration plus 5% interest p.a. as follows:

o on MYR 23,620 as from 8 June 2020 until the date of effective payment;

o on MYR 26,240 as from 25 June 2020 until the date of effective payment;

- Thai Baht (THB) 14,938.12 as flight tickets plus 5% interest p.a. as from 25 June 2020 until the date of effective payment;

- MYR 182,560 as compensation for breach of contract without just cause plus 5% interest p.a. as from 25 June 2020 until the date of effective payment.

4. Any further claims of the Claimant/Counter-Respondent are rejected.

5. The Claimant/Counter-Respondent is directed to immediately and directly inform the Respondent/Counter-Claimant of the relevant bank account to which the Respondent/Counter-Claimant must pay the due amount.

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

7. In the event that the amount due, plus interest as established above is not paid by the Respondent/Counter-Claimant within 45 days, as from the notification by the Claimant/Counter-Respondent of the relevant bank details to the Respondent/Counter-Claimant, the following consequences shall arise:

 1.

The Respondent/Counter-Claimant shall be banned from registering any new players, either nationally or internationally, up until the due amount is 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 amount is paid.

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

In the event that the payable amount as per in this decision is 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 (DRC) judge:

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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