Labour Disputes
Texto da decisão
REF FPSD-4642
Decision of the
Dispute Resolution Chamber
passed on 24 February 2022
regarding an employment-related dispute concerning the player Ebonh
Nhome Afryd Maks
BY:
Clifford J. Hendel (USA / France), Chairperson
Gonzalo de Medinilla (Spain), member
Jorge Gutierrez (Costa Rica), member
CLAIMANT:
Ebonh Nhome Afryd Maks, Belarus
Represented by Mr Mikhail Lebedev
RESPONDENT:
Club Astana, Kazakhstan
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I.
Facts of the case
1.
On 10 January 2020, the Belarusian player, Ebonh Nhome Afryd Maks (hereinafter: the player
or the Claimant) and the Kazakh club, FC Astana (hereinafter: the club or the Respondent)
concluded an employment contract (hereinafter: the contract), valid as from the date of its
signature until 31 December 2023.
2.
In accordance with clause 3 of the contract, the club undertook to pay to the player, inter
alia, the following remuneration:
-
For the year 2020 (as from 13 January 2020 until 31 December 2020): a monthly
salary of KZT 11,779,000 or EUR 27,728;
For the year 2021: a monthly salary of KZT 14,135,000 or EUR 33,334;
For the year 2022: a monthly salary of KZT 14,135,000 or EUR 33,334;
For the year 2023: a monthly salary of KZT 16,489,000 or EUR 38,889.
3.
In accordance with clause 3.3 of the contract, the salary would be paid in KZT.
4.
On 23 April 2021, the parties concluded an agreement (hereinafter: the additional
agreement), which clause 1 states that the club undertook to pay to the player, due to his
performance during the season 2020, the amount of KZT 22,250,928 (EUR 42,500 as per the
Claimant), as follows:
-
KZT 7,416,976 tenge by 15 June 2021;
KZT 7,416,976 tenge by 15 July 2021;
KZT 7,416,976 tenge by 15 August 2021.
5.
Clause 2 of the additional agreement states that, during the whole term of the contract, the
club would pay the amounts due to the player in KZT as per the contract but, every 6 months,
the club would review the amounts paid to the player and would proceed with any necessary
“corrective additional payment” in order to make sure that the amounts paid to the player
amount to the amounts expressed in EUR as per clause 3 of the contract.
6.
Clause 3 of the additional agreement provides that the salary debt and further debts incurred
by the cub during the in season 2021 will be paid to the player by no later than 15 June 2021.
7.
By means of his letter dated 10 June 2020, the player informed the club that the latter had
only made partial payments, not fulfilling its contractual obligations and reminded the club
that, even though the latter is allowed to pay the monthly salary in KZT, the salary shall equal
to the amount indicated in EUR; however, to no avail.
8.
On 19 April 2021, the player put the club in default of payment concerning the salaries of
February and March 2021, thereby requesting the club to remedy the default within the
following 15 days.
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9.
On 27 September 2021, the player put the club in default of payment in the amount of KZT
22,250,928, corresponding to the lump sums payable as per clause 2 of the additional
agreement, thereby granting the club a 15 days’ deadline to remedy the default; however, to
no avail.
10. On 7 December 2021, the player put the club in default of payment in the amount of EUR
96,000 corresponding to the lump sums due as per clause 1 of the additional agreement (EUR
42,500) plus the unpaid part of the salaries due between January and June 2021 (EUR 53,500
– cf. point 11 infra) thereby granting the club a final deadline until 22 December 2021;
however, to no avail.
II. Proceedings before FIFA
a. Position of the Claimant
11. On 24 December 2021, the player lodged a claim against the club before FIFA, requesting to
be awarded outstanding remuneration and compensation for breach of contract in the total
amount of EUR 1,048,834 broken down as follows:
Outstanding remuneration: EUR 183,093
-
EUR 53,500 corresponding to the difference between the amount due and the amount
paid for the period between 1 January and 30 June 2021 (cf. point 12 infra);
EUR 42,500, corresponding to the lump sums payable as per clause 1 of the additional
agreement;
EUR 33,334 as salary of December 2021;
EUR 53,500 corresponding to the difference between the amount due and the amount
paid for the period between 1 July and 31 December 2021.
Compensation for breach of contract: EUR 866,000 (residual value of the contract)
-
-
EUR 400,008 corresponding to the value of the contract for the year 2022 (i.e. 12
salaries of EUR 33,338 each) – calculated by the Claimant himself, the value of the
contract for the same period seems to be slightly higher;
EUR 466,000 corresponding to the value of the contract for the year 2023 (i.e. 12
salaries of EUR 38,889 each) – calculated by the Claimant himself, the value of the
contract for the same period seems to be slightly higher.
12. In his claim, the player explained that, during the first 6 months of the year 2021, he should
have received a salary of EUR 33,334 as per clause 3 of the contract, i.e. an amount of EUR
200,000 in total for the said timeframe. In this respect, the player stressed that he only
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received the amount of EUR 146,500 from the club for the said period. Consequently, while
referring to clause 2 of the additional agreement, he argued that the club owes him the
amount of EUR 53,500 as outstanding salaries for the said period (200,000 – 146,500 =
53,500).
13. In addition, the player held that the club failed to pay the amount of KZT 22,250,928, which
was due as per clause 1 of the additional agreement. In this respect, the player assured that
the said amount corresponds to EUR 42,759.
14. In this context, the player explained that, despite the club’s breaches, he decided to remain
with the club until the end of the season 2021, wince only 2 months remained until the end
of the championship.
15. Notwithstanding all of the above, the player argued that, acting in good faith, he put the
club in default of payment one last time on 7 December 2021, but to no avail.
b. Position of the Respondent
16. Despite having been invited to reply to the claim, during the relevant deadline granted to the
Respondent for it to present its comments as to the claim lodged by the Claimant, the
Respondent only submitted documentation in Kazakh without any translation into any of the
FIFA official languages (English, French, Spanish or German).
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
17. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC)
analysed whether it was competent to deal with the case at hand. In this respect, it took note
that the present matter was presented to FIFA on 24 December 2021 and submitted for
decision on 24 February 2022. 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.
18. Subsequently, the members of the Chamber 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
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employment-related dispute with an international dimension between a Belorussian player
and a Kazakh club.
19. Subsequently, the Chamber analysed which regulations should be applicable as to the
substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Players (August 2021 edition) and
considering that the present claim was lodged on 24 December 2021, the August 2021
edition edition of said regulations (hereinafter: the Regulations) is applicable to the matter at
hand as to the substance.
b. Burden of proof
20. The Chamber 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 Chamber stressed the wording
of art. 13 par. 4 of the Procedural Rules, pursuant to which it may consider evidence not filed
by the parties, including without limitation the evidence generated by or within the Transfer
Matching System (TMS).
c. Merits of the dispute
21. Its competence and the applicable regulations having been established, the Chamber entered
into the merits of the dispute. In this respect, the Chamber started by acknowledging all the
above-mentioned facts as well as the arguments and the documentation on file. However,
the Chamber emphasised that in the following considerations it will refer only to the facts,
arguments and documentary evidence, which it considered pertinent for the assessment of
the matter at hand.
i. Main legal discussion and considerations
22. The foregoing having been established, the Chamber moved to the substance of the matter,
and firstly wished to note that the claim of the Claimant remained uncontested, considering
that the club, as reply to the claim, only submitted documentation in Kazakh, despite having
been informed that submissions from the parties must be sent along with a translation into
one of the 4 FIFA official languages, ex. art. 13.1 of the Procedural Rules.
23. Thus, the DRC determined that the allegations of the Claimant will be considered as
uncontested facts, provided that they are supported with the sufficient documentary
evidence.
24. Moving to the substance of the matter at hand, the DRC pointed out that, in accordance with
the contract, the player was entitled to a fixed salary of KZT 14,135,000 or EUR 33,334 during
the year 2021 and that, in accordance with clause 3.3 of the contract, the salary would be
paid in KZT.
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25. Thus, the Chamber unanimously concluded that the salary of the player for the said year
needed to be paid in KZT, despite the player requesting the amounts due to him in EUR, in
application of the legal principle pacta sunt servanda.
26. The Chamber further noted that it remained undisputed that, for the first half of the year
2021, the club failed to pay the amount of EUR 53,500 to the player, despite the parties
having agreed, in clause 2 of the additional agreement that the club would review the
amounts paid to the player every 6 months and would proceed with any necessary “corrective
additional payment” in order to make sure that the amounts paid to the player amount to
the amounts expressed in EUR as per clause 3 of the contract. Thus, the DRC decided that
the player is entitled to the amount of EUR 53,500 as remainder of this salary for the first half
of the year 2021. However, it must be noted that the said amount shall be converted into
KZT, ex. clause 2 of the additional agreement in combination with clause 3.3. of the contract.
In this context, using the appropriate means at the disposal of the Chamber concerning the
conversion of currencies, the DRC determined that the amount of EUR 53,500 equals to KZT
26,115,300.
27. Moreover, the Chamber highlighted that it also remained undisputed that the club failed to
pay any of the instalments due as per clause 1 of the additional agreement. In this respect,
even though the player held that the amount thereunder payable amounts to EUR 42,500,
the additional agreement only indicates the amount in KZT. Thus, the DRC concluded that
the amount due to the player in this respect is KZT 22,250,928 (cf. clause 1 of the additional
agreement).
28. As to the salary of December 20201, requested by the player in the amount of EUR 33,338,
even though the contract states that the salary in KZT amounts to 14,135,000, considering
the content of clause 2 of the additional agreement, the Chamber decided that the salary of
the player needs to be adjusted to the accurate conversion from EUR to KZT. In this respect,
the Chamber verified -again using the appropriate means at the disposal of the Chamber
concerning the conversion of currencies- that the amount of EUR 33,338 amounts to KZT
16,271,600. Thus, the Chamber determined that the player shall be awarded the amount of
KZT 16,271,600 as salary of December 2021.
29. Concerning the amount of EUR 53,500 requested by the player as unpaid part of his salaries
for the second half of the year 2021, the Chamber underscored that the same reasoning as
the one followed for the amounts due during the first half of the year 2021 applies, and,
consequently, the amount of KZT 26,115,300 shall be awarded to the player.
30. In view of the above, the Chamber observed that, when summed up, the club was in default
of payment of an amount of KZT 90,753,128, that it should have remitted to the player.
31. As to the termination of the contract, the Chamber observed that the player did not formally
terminate the contract.
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32.
In this respect, in application of the jurisprudence of the DRC, the latter recalled that a
contract which termination has not been formally communicated is to be deemed as
terminated, the latest, on the date on which one of the parties lodges a claim against the
other in front of a deciding body.
33.
Thus, considering that the player lodged a claim against the club before FIFA on 24
December 2021, it is to be presumed that the contract terminated on the said date.
34.
In view of the above-mentioned considerations and bearing in mind that it remained
undisputed that the amount of KZT 90,753,128 remained outstanding at the date of
termination of the contract (even though the salary of December 2021 was not yet due on
the 24th of December 2021, the Chamber decided that, since the player had rendered his
services to the club until the 24th day of December 2021, the full salary of December 2021
can be considered as outstanding) and that the said amount largely exceeds the amount
equal to 2 monthly salaries of the player, the Chamber determined that, in view of all the
above-mentioned circumstances (also considering the several default notices sent by the
player to the club) it is to be considered that the player terminated the contract with just
cause on 24 December 2021 ex. art. 14 of the Regulations.
ii. Consequences
35. Having stated the above, the members of the Chamber turned their attention to the question
of the consequences of such unjustified breach of contract committed by the Respondent.
36. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are equivalent to KZT 90,753,128
(cf. points 24 - 30 supra).
37. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the Respondent is liable to pay to the Claimant the amounts which
were outstanding under the contract at the moment of the termination, i.e. KZT 90,753,128.
38. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the player by the club in the case at stake. In doing so, the Chamber
firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the amount of
compensation shall be calculated, in particular and unless otherwise provided for in the
contract at the basis of the dispute, with due consideration for the law of the country
concerned, the specificity of sport and further objective criteria, including in particular, the
remuneration and other benefits due to the player under the existing contract and/or the new
contract, the time remaining on the existing contract up to a maximum of five years, and
depending on whether the contractual breach falls within the protected period.
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39. In application of the relevant provision, the Chamber held that it first of all had to clarify as
to whether the pertinent employment contract contained a provision by means of which the
parties had beforehand agreed upon an amount of compensation payable by the contractual
parties in the event of breach of contract. In this regard, the Chamber established that no
such compensation clause was included in the employment contract at the basis of the matter
at stake.
40. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the club to the player had to be assessed in application of the other
parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that said
provision provides for a non-exhaustive enumeration of criteria to be taken into consideration
when calculating the amount of compensation payable.
41. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded
with the calculation of the monies payable to the player under the terms of the contract from
the date of its unilateral termination until its end date. Consequently, the Chamber concluded
that the amount of EUR 866,676, which equals KZT 423,057,000 (cf. clause 3 of the contract)
serves as the basis for the determination of the amount of compensation for breach of
contract.
42. In continuation, the Chamber verified as to whether the player had signed an employment
contract with another club during the relevant period of time, by means of which he would
have been enabled to reduce his loss of income. According to the constant practice of the
DRC as well as art. 17 par. 1 lit. ii) of the Regulations, such remuneration under a new
employment contract shall be taken into account in the calculation of the amount of
compensation for breach of contract in connection with the player’s general obligation to
mitigate his damages. In this respect, the Chamber noted that the player did not sign any
new contract with any third club and, consequently, the player was not able to mitigate his
damages.
43. Notwithstanding the considerations made in point 41 supra, the Chamber observed that the
Claimant requested to be awarded the amount of EUR 866,000 as compensation for breach
of contract, which equals KZT 422,727,000. Thus, in order not to incur in an ultra petita
practice, the Chamber determined that the player shall be awarded KZT 422,727 as
compensation for breach of contract, since he limited his petitum when requesting the said
amount.
44. Consequently, on account of all of the above-mentioned considerations and the specificities
of the case at hand, the Chamber decided that the club must pay the amount of KZT
422,727,000 to the player, which was to be considered a reasonable and justified amount of
compensation for breach of contract in the present matter.
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45. Lastly, the Chamber wished to stress that, since the Claimant did not request to be granted
any default interest in connection with the amounts requested in his claim, no default interest
shall be awarded to the player.
iii. Compliance with monetary decisions
46. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24 par.
1 and 2 of the Regulations, which stipulate that, with its decision, the pertinent FIFA deciding
body shall also rule on the consequences deriving from the failure of the concerned party to
pay the relevant amounts of outstanding remuneration and/or compensation in due time.
47. In this regard, the DRC 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.
48. Therefore, bearing in mind the above, the DRC decided that the Respondent must pay the
full amount due (including all applicable interest) to the Claimant within 45 days of
notification of the decision, failing which, at the request of the Claimant, a ban from
registering any new players, either nationally or internationally, for the maximum duration of
three entire and consecutive registration periods shall become immediately effective on the
Respondent in accordance with art. 24 par. 2, 4, and 7 of the Regulations.
49. The Respondent shall make full payment (including all applicable interest) to the bank account
provided by the Claimant in the Bank Account Registration Form, which is attached to the
present decision.
50. The DRC recalled that the above-mentioned ban will be lifted immediately and prior to its
complete serving upon payment of the due amounts, in accordance with art. 24 par. 8 of the
Regulations.
d. Costs
51. The Chamber 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 Chamber decided that no procedural costs were to
be imposed on the parties.
52. Likewise and for the sake of completeness, the Chamber recalled the contents of art. 25
par. 8 of the Procedural Rules and decided that no procedural compensation shall be
awarded in these proceedings.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Ebonh Nhome Afryd Maks, is accepted.
2.
The Respondent, Club Astana, has to pay to the Claimant, the following amount(s):
- KZT 90,753,128 as outstanding remuneration;
- KZT 422,727,000 as compensation for breach of contract.
3.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
4.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players if full payment
(including all applicable interest) is not made within 45 days of notification of this decision,
the following consequences shall apply:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration 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.
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5. The consequences shall only be enforced at the request of the Claimant in accordance
with article 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
6. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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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