Labour Disputes
Texto da decisão
REF FPSD-3339
Decision of the
Dispute Resolution Chamber
passed on 24 November 2021
regarding an employment-related dispute concerning the player Islamnur
Abdulavov
BY:
Jérôme Perlemuter, France
CLAIMANT:
Islamnur Abdulavov, Russia
RESPONDENT:
FC Okzhetpes, Kazakhstan
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REF FPSD-3339
I.
Facts of the case
1.
On 3 February 2020, the Russian player, Mr Islamnur Abdulavov (hereinafter: the player or
the Claimant) and the Kazakhstani club, FC Okzhetpes (hereinafter: the club or the
Respondent) concluded an employment contract valid as from the date of signature until 9
November 2020 (hereinafter: the employment contract).
2.
In accordance with clauses 3.1 and 3.2 of the employment contract, the club undertook to
pay the player a monthly remuneration of KZT 3,045,000, payable by no later than the 10th
day of the subsequent month.
3.
Furthermore, clauses 3.4, 3.5, 3.8 and 5.2 of the employment contract read as follows:
“3.4. All payments due to the Employee and reflected in the text of this employment
contract are indicated taking into account with holding (NET) taxes and other
mandatory payments provided for by the laws of the Republic of Kazakhstan.
3.5. The employer independently calculates, withhold and transfers taxes and other
mandatory payments from the employee's income, provided for by the legislation of
the Republic of Kazakhstan and received during the validity period of this employment
contract.
[…] 3.8. Payment for downtime for reasons beyond the control of the Employer and
the Employee is established in the amount of the minimum salary, in accordance with
the current legislation of the Republic of Kazakhstan and is paid within the time frame
provided for by the legislation of the Republic of Kazakhstan.
[…] 5.2. The Employer provides the Employee with basic paid annual leave of 28
(Twenty eight) calendar days. By agreement between the Parties, paid annual leave may
be divided into parts. In this case, one of the parts of paid labor leave must be at least
two calendar weeks of the duration of the leave provided for in this paragraph”.
4.
On 13 March 2020, representatives of the club and of its employees took part in a meeting
in order to approve amendments to a collective agreement previously signed by the parties.
Said commission established inter alia the following:
“1. To supplement Article III of the collective agreement with clause 3.7 with the following
content:
1.1. The payment terms for downtime for a reason beyond the control of the employer
and the employee are set at 50% of the employee’s salary for all specialists, professional
footballers, coaching staff of the main football team, the Second League team, the [club’s]
football center, the women's football team, futsal teams.
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1.2. The payment terms for downtime for reasons beyond the control of the employer and
the employee our set at 80% of the employee’s salary for all employees of administrative
personnel”.
5.
On 15 March 2020, the government of Kazakhstan declared state of emergency due to the
COVID-19 outbreak valid as from 16 March 2020 and 15 April 2020.
6.
On 16 March 2020, the management of the Kazakhstan League also announced the
suspension of the championship from 16 March 2020 and 15 April 2020.
7.
On 18 March 2020, the management of the Kazakhstan League recommended the
suspension of its participating club’s trainings until further notice.
8.
On 3 July 2020, the management of the Kazakhstan League informed that restrictive
measures would be implemented for 14 days starting on 5 July 2020, due to the worsening
of the pandemic.
9.
On 20 July 2020, the management of the Kazakhstan League announced that the
championship would resume as from 3 August 2020. Subsequently, on 29 and 31 July 2020,
the management of the Kazakhstan League issued new communications regarding the new
structure of the championship.
10. On 1 June 2021 and due to the claims lodged by its employees before the Kazakhstan labor
courts, the “Office of Labor Inspection of Akmola region” conducted an inspection in the
club, regarding potential violations in the context of the pandemic – and especially the
measures adopted by its management to address the consequences of the pandemic.
11. On 4 August 2021, the player sent the club a default notice and granted it with a 7 days’
deadline in order to proceed the payment of the following amounts:
a. KZT 9,857,345 net as “salary outstanding debts”, plus a penalty based on “the
1.25-fold official refinancing rate of the National Bank of the Republic of
Kazakhstan”; and
b. KZT 2,436,000 net as compensation for the unused days of annual paid labor
vacation, plus a penalty based on “the 1.25-fold official refinancing rate of the
National Bank of the Republic of Kazakhstan”.
II. Proceedings before FIFA
12. On 17 August 2021, the player filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
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a. Claim of the player
13. In his claim, the player explained that the club provided him with a calculation of his
outstanding remuneration amounting to KZT 3,488,250.21. Nevertheless, the player held
that said document did not take into consideration: (i) the pro rata salary from 1 to 9
November 2020; and (ii) the personal income tax (PIT) for each month, that should be of the
club’s liability. Furthermore, the player maintained that his salaries from March to July 2020
were illegally reduced in the context of the COVID-19 pandemic.
14. Therefore, the player stated that he should be awarded the balance between the amounts
contractually agreed (i.e. KZT 28,135,800) and the total effectively paid by the club in
accordance with the pay slips provided (i.e. KZT 18,278,455), corresponding to KZT
9,857,345 net.
15. In continuation, the player also submitted his calculations as to the compensation for the
unused days of annual paid labor vacation, indicating a credit of KZT 2,436,000 net.
16. Finally, the player referred to the Kazakhstani labour law and alleged that he should be
entitled to a penalty based on the national index, as follows:
a. KZT 9,857,345 net as “salary outstanding debts”, plus a penalty based on “the
1.25-fold official refinancing rate of the National Bank of the Republic of
Kazakhstan”; and
b. KZT 2,436,000 net as compensation for the unused days of annual paid labor
vacation, plus a penalty based on “the 1.25-fold official refinancing rate of the
National Bank of the Republic of Kazakhstan”.
b. Reply of the club
17. In its reply, the club stressed that it made a mistake and deducted 10% from the player’s
salaries.
18. Additionally, the club referred to the COVID-19 pandemic and to the national law.
Accordingly, it pointed out that the player’s salaries were validly reduced by 50% during the
months of March, April, May and July 2020, in line with clause 3.8 of the employment
contract. The club made further reference to the jurisprudence of the national labour courts
on the matter.
19. To this extent, the club confirmed that it owes the player KZT 6,136,163 net (being KZT
4,406,794 for outstanding salaries and KZT 1,729,369.05 for the unused vacation), as well
as a penalty of KZT 516,011.07 net.
c. Rejoinder of the player
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20. In his rejoinder, the player opposed the club’s allegations as to the unilateral variation of the
employment contract. In this regard, the player highlighted that he had never been informed
by the club about the reduction of his salaries, as well as that the club did not comply with
the requirements set forth in the national law. Likewise, the player indicated that the
jurisprudence of the local courts was not relevant to this dispute bearing in mind that they
did not involve him.
21. Subsequently, the player stated that we had not been notified either of the terms of the
collective agreement. Moreover, he claimed that he and his colleagues (i.e. football players)
were not represented by the relevant commission.
22. Finally, the player reiterated his requests for relief as per the statement of claim.
d. Final comments of the club
23. In its final comments, the club rejected the player’s allegations and repeated that the
unilateral variation of the salary was made in line with the employment contract and the
national law. It clarified, in this respect, that:
a. the trainings were suspended initially from 16 March 2020 until May 2020, and
then from 1 July 2020 until August 2020;
b. the local labour courts had already ruled that the variation of other players’ salaries
was legal; and
c. the player was provided with a copy of the collective agreement in person.
24. In light of the above, the club provided a new calculation taking into consideration the
minimum salary in Kazakhstan and stressed that the amount due to the player is KZT 976,914.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
25. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to
as Single Judge) analysed whether he was competent to deal with the case at hand. In this
respect, he took note that the present matter was presented to FIFA on 17 August 2021 and
submitted for decision on 24 November 2021. Taking into account the wording of art. 34 of
the October 2021 edition of the Procedural Rules Governing the Football Tribunal
(hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is
applicable to the matter at hand.
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26. Subsequently, the Single Judge referred to art. 2 par. 1 of the Procedural Rules and observed
that in accordance with art. 23 par. 1 in combination with art. 22 lit. b) of the Regulations on
the Status and Transfer of Players (August 2021 edition), the Dispute Resolution Chamber is
competent to deal with the matter at stake, which concerns an employment-related dispute
with an international dimension between a Russian player and Kazakhstani club.
27. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he confirmed that, in accordance with art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Player (August 2021 edition), and
considering that the present claim was lodged on 17 August 2021, the February 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
28. The Single Judge recalled the basic principle of burden of proof, as stipulated in art. 13
par. 5 of the Procedural Rules, according to which a party claiming a right on the basis of an
alleged fact shall carry the respective burden of proof. Likewise, the Single Judge stressed the
wording of art. 13 par. 4 of the Procedural Rules, pursuant to which he may consider evidence
not filed by the parties, including without limitation the evidence generated by or within the
Transfer Matching System (TMS).
c. Merits of the dispute
29. His competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, the Single Judge started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Single Judge emphasised that in the following
considerations he will refer only to the facts, arguments and documentary evidence, which
he considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
30. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that it pertains to claim lodged by the player against the
club for outstanding remuneration.
31. In particular, the Single Judge noted that the player, on his part, maintained that he should
be entitled to outstanding salaries and compensation for unused annual leave, accrued by
the relevant penalties. On the other hand, the Single Judge was also observant that the club
disputed the quantum claimed by the player and alleged that part of his salaries was validly
reduced due to the COVID-19 outbreak.
32. In this context, the Single Judge deemed that it was his task to determine the following:
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a. Were the player’s salaries from March, April, May and July validly reduced by the
club?
b. Is the player entitled to outstanding salaries?
c. Is the player entitled to compensation for unused leave?
33. Therefore, the Single Judge proceeded to examine each matter, as follows.
A. Were the player’s salaries from March, April, May and July
validly reduced by the club?
34. First and foremost, the Single Judge carefully analysed the club’s position as to the COVID19 pandemic.
35. In this respect, the Single Judge deemed it essential recall that 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 has issued an
additional document, referred to as FIFA COVID-19 FAQ, which provides clarifications on the
most relevant questions in connection with the regulatory consequences of the COVID-19
outbreak and identifies solutions for new regulatory matters.
36. Said guidelines – 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”. Additionally, analysing the concept of a situation of force
majeure, the Single Judge noted 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.
37. 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.
38. Following these general observations, the Single Judge went on to analyse whether in the
matter at hand, any of the parties to the employment contract had made a unilateral variation
to their existing agreement. In this respect, the Single Judge deemed that the decision of the
club to unilaterally reduce 50% of the player’s salary for March (pro rata), April, May and July
had to be considered as a unilateral variation to the employment relationship between the
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parties. It was clear to the Single Judge that the club did not terminate the employment
contract, but only altered the salary payment.
39. As a result, the Single Judge concluded that the FIFA COVID-19 Guidelines and the FIFA
COVID-19 FAQ are applicable to the matter at hand when having to assess the legitimacy of
the pertinent unilateral alteration. Accordingly, the Single Judge outlined that unilateral
decisions to vary agreements will only be recognised where they are made in accordance with
national law or are permissible within collective bargained agreements (CBA) structures or
another collective agreement mechanism.
40. Likewise, the Chamber stressed the contents of art. 13 par. 5 of the Procedural Rules,
pursuant to which a party that asserts a fact has the burden of proving it. As an example, in
the context of the unilateral variation at hand, a party should provide independent legal
advice from a qualified legal practitioner in the relevant jurisdiction which confirms that the
unilateral variation was a valid exercise of the national law referred to in the agreement, CBA,
or other collective agreement mechanism.
41. Turning to the evidence on file as well as the submissions of the parties, the Single Judge
took due consideration of the fact that the club provided evidence that it tried to find a
solution with its employees regarding the salary reduction in a meeting held on 13 March
2020. Accordingly, the Single Judge observed that the representatives of the club and its
employees decided to supplement the collective agreement previously concluded between
them and established, inter alia, that: “The payment terms for downtime for reasons beyond
the control of the employer and the employee are set at 50% of the employee’s salary for all
specialists, professional footballers, coaching staff of the main football team, the Second
League team, the [club’s] football center, the women’s football team, futsal teams.”
42. Nevertheless, while carefully analysing the submissions and documentation brought forward
by the parties, the Single Judge acknowledged that the club did not provide any evidence
that the player was ever notified or informed of his salaries’ reduction (i.e. the amount, the
period, the reasoning and etc.).
43. On the contrary, the Single Judge noted that the “Office of Labor Inspection of Akmola
region” conducted an investigation in connection with proceedings lodged by other club’s
employees before the Kazakhstani labour courts and issued its report on 1 June 2021. At this
point, the Single Judge wished to highlight that the aforementioned document indicated,
inter alia, that the club:
a. incurred in a violation of sub-clause 5 clause 2 of article 115 of the Labor Code of
the Republic of Kazakhstan, because there was no written notification and written
consent of employees to deductions; and
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b. did not provide the employees with notifications about the components of wages,
deductions made and the amount to be paid (cf. clause 2 of Article 113 of the Labor
Code of the Republic of Kazakhstan).
44. To this extent, the Single Judge was firm to conclude that – even though the club, could in
principle justify the reduction of the player’s salaries based on the amendment to the
collective agreement – it failed to inform or notify him of said reduction, in violation of the
national law applicable in Kazakhstan. Therefore, it was the Single Judge’s conclusion that
the club could not establish to a comfortable satisfaction degree that the unilateral variation
of the employment contract was made in agreement with the national law.
45. Based on the foregoing considerations, the Single Judge decided that the unilateral variation
of the employment contract could not be considered licit. It follows that, in line with the
general legal principle of pacta sunt servanda, the club should have paid the player’s agreed
remuneration as established in the employment contract.
B. Is the player entitled to outstanding salaries?
46. In accordance with the employment contract, the club undertook to pay the player a monthly
salary of KZT 3,045,000 net.
47. As a consequence, the player was entitled to receive the following amounts net:
a. KZT 2,740,500 as the salary of February 2020 (pro rata);
b. KZT 3,045,000 as the salary of March 2020;
c. KZT 3,045,000 as the salary of April 2020;
d. KZT 3,045,000 as the salary of May 2020;
e. KZT 3,045,000 as the salary of June 2020;
f. KZT 3,045,000 as the salary of July 2020;
g. KZT 3,045,000 as the salary of August 2020;
h. KZT 3,045,000 as the salary of September 2020;
i.
KZT 3,045,000 as the salary of October 2020; and
j.
KZT 913,500 as the salary of November 2020 (pro rata).
48. However, it remained undisputed between the parties that only following amounts were
delivered by the club to the player (cf. pay slips found on file):
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a. KZT 4,576,455 in May 2020;
b. KZT 2,740,500 in June 2020;
c. KZT 5,481,000 in August 2020;
d. KZT 2,740,500 in September 2020; and
e. KZT 2,740,500 in October 2020.
49. Therefore, the Single Judge decided that the player should be entitled to receive the balance
between the amounts established in the employment contract and the amounts effectively
paid by the club, namely KZT 9,735,045 net.
50. Finally, the Single Judge noted that the player requested a penalty for the late payment in line
with the national law. In this respect, the Single Judge observed that said penalty should be
based on the “official refinancing rate of the National Bank of the Republic of Kazakhstan”,
however the player did not provide further information in this regard.
51. Consequently, by recalling the well-established jurisprudence of the Dispute Resolution
Chamber, the Single Judge decided to award him the standard interest of 5% p.a. as from
the date of the claim (i.e. 17 August 2021) until the date of effective payment.
C. Is the player entitled to compensation for unused leave?
52. In continuation, the Single Judge took due consideration of the fact that the club did not
deny that the player was entitled to compensation for unused leave or filed any evidence to
challenge the amounts sought by the player. On the contrary, the club did only state that the
amount was lower than the one claimed without specifying its calculation.
53. In light of the above, the Single Judge outlined that the calculation submitted by the player
appeared to be reasonable. Likewise, the proposed calculation was not substantially
challenged by the club thus was deemed to be accepted.
54. Therefore, the Single Judge decided to award the player the amounts claimed. Alike with the
outstanding salaries, the Single Judge stressed that interest should be awarded at a rate of
5% p.a. as from the date of the claim (i.e. 17 August 2021) until the date of effective
payment.
ii. Compliance with monetary decisions
55. Finally, taking into account the applicable Regulations, the Single Judge referred to art. 24bis
par. 1 and 2 of the Regulations, which stipulate that, with its decision, the pertinent FIFA
deciding body shall also rule on the consequences deriving from the failure of the concerned
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party to pay the relevant amounts of outstanding remuneration and/or compensation in due
time.
56. In this regard, the Single Judge highlighted that, against clubs, the consequence of the failure
to pay the relevant amounts in due time shall consist of a ban from registering any new
players, either nationally or internationally, up until the due amounts are paid. The overall
maximum duration of the registration ban shall be of up to three entire and consecutive
registration periods.
57. Therefore, bearing in mind the above, the Single Judge decided that the club must pay the
full amount due (including all applicable interest) to the player within 45 days of notification
of the decision, failing which, at the request of the player, a ban from registering any new
players, either nationally or internationally, for the maximum duration of three entire and
consecutive registration periods shall become immediately effective on the club in accordance
with art. 24bis par. 2, 4, and 7 of the Regulations.
58. The club shall make full payment (including all applicable interest) to the bank account
provided by the player in the Bank Account Registration Form, which is attached to the
present decision.
59. The Single Judge recalled that the above-mentioned ban will be lifted immediately and prior
to its complete serving upon payment of the due amounts, in accordance with art. 24bis par.
8 of the Regulations.
d. Costs
60. The Single Judge referred to art. 25 par. 1 of the Procedural Rules, according to which
“Procedures are free of charge where at least one of the parties is a player, coach, football
agent, or match agent”. Accordingly, the Single Judge decided that no procedural costs were
to be imposed on the parties.
61. Likewise and for the sake of completeness, the Single Judge recalled the contents of art. 25
par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
62. Lastly, the Single Judge rejected any other requests for relief made by any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Islamnur Abdulavov, is partially accepted.
2.
The Respondent, FC Okzhetpes, has to pay to the Claimant, the following amount:
-
KZT 12,171,045 net as outstanding remuneration plus 5% interest p.a. as from 17 August
2021 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
5.
Pursuant to art. 24bis of the Regulations on the Status and Transfer of Players if full payment
(including all applicable interest) is not made within 45 days of notification of this decision,
the following consequences shall apply:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration the ban shall
be of three entire and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee in the event that full payment (including all applicable interest) is still not
made by the end of the three entire and consecutive registration periods.
6. The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24bis par. 7 and 8 and art. 24ter of the Regulations on the Status and Transfer of
Players.
7. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this
decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a
party within five days of the notification of the motivated decision, to publish an anonymised or a
redacted version (cf. article 17 of the Procedural Rules).
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