Labour Disputes
Texto da decisão
REF. FPSD-13159
Decision of the
Dispute Resolution Chamber
passed on 22 February 2024
regarding an employment-related dispute concerning
the player Bachana Arabuli
BY:
Frans DE WEGER (The Netherlands), Chairperson
Tarek BRAUER (Germany), member
Johan VAN GAALEN (South Africa), member
CLAIMANT:
Bachana Arabuli, Georgia
Represented by 14 Sports Law
RESPONDENT:
FC Neftchi, Uzbekistan
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REF. FPSD-13159
I. Facts of the case
1.
On 26 July 2023, the Georgian player Bachana Arabuli (hereinafter: the Claimant or the
player) and the Uzbeki club FC Neftchi (hereinafter: the Respondent or the club) concluded
an employment agreement (hereinafter: the Contract) valid as from the same date until 30
December 2024.
2.
In accordance with the employment contract, the Respondent undertook to pay to the
Claimant inter alia a monthly net salary of USD 20,000.
3.
Furthermore, arts. 9.2 and 9.3 of the Contract established conditional bonuses as follows:
“9.2. According to the decision of the [Club] and the order of payment of bonus funds, the
[the Claimant] shall be additionally awarded the net amount of 1500 US dollars as bonus for
each winning game of the [Respondent]. The amount is transferred to the [Claimant] current
account in Uzbek soums at the exchange rate of the Central Bank of the Republic of
Uzbekistan on the day of payment. The payable amount of the bonus shall be calculated in
accordance with the following scheme: (i) the [Claimant] is listed in the starting line-up far
the respective winning match: he is entitled to 100 % of the bonus; (ii) the [Claimant] is on the
bench but he participates in the respective winning match as a substitute: he is entitled to 75
% of the bonus; (iii) the [Claimant] is on the bench and he does not participate in the
respective winning match: he is entitled to 50 % of the bonus.
9.3. In order to encourage the [Claimant] work, the [Respondent] sets an incentive amount
of 20,000 (twenty thousand) US dollars in case the club finishes in top 3 places in the
Championship of Uzbekistan”.
4.
Furthermore, on 28 July 2023, the Claimant and the Respondent (hereinafter jointly
referred to as: the parties) concluded a supplementary agreement pursuant to which
the Respondent undertook to pay to the Claimant a sign-on fee amounting to UZS
292,500,000, which corresponds approx. to USD 23,760.
5.
By correspondence dated 7 December 2023, the Claimant put the Respondent in default
of payment of USD 41,875 setting a time limit expiring on 22 December 2023 in order to
remedy the default.
6.
On 23 December 2023, the Claimant notified the unilateral termination of the Contract to
the Respondent.
7.
On 23 December 2023, the Claimant filed the claim at hand before FIFA. A brief summary
of the position of the parties is detailed in continuation.
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REF. FPSD-13159
8.
According to the Claimant, the Respondent did not comply with its financial obligations
under the Contract to the extent of leaving no alternative to the Claimant but to terminate
the employment agreement prematurely.
9.
In particular, the Claimant stated that the Respondent failed to pay the salaries related to
October 2023 and November 2023 as well as part of the relevant bonuses stipulated under
clause 9.2 of the Contract.
10. In this respect, the Claimant held having had just cause to terminate the Contract on 23
December 2023 due to the Respondent’s default of more than two salaries at the time.
11. The requests for relief of the Claimant, accordingly, were the following:
-
USD 41,875 as outstanding remuneration;
USD 260,000 as compensation for breach of contract;
USD 60,000 as additional compensation;
5% interest per annum over the above amounts.
12. In spite of having invited to do so, the Respondent failed to reply to the claim.
13. By the time this decision was passed (i) the player informed FIFA that he had not signed
any new employment agreement and (ii) no relevant transfer instruction regarding the
player has been entered by any club in the Transfer Matching System (TMS).
II. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
14. 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 23 December 2023 and
submitted for decision on 22 February 2024. Taking into account the wording of art. 34 of
the March 2023 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.
15. 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 (February 2024 edition), the Dispute
Resolution Chamber is competent to deal with the matter at stake, which concerns an
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REF. FPSD-13159
employment-related dispute with an international dimension between a Georgian player
and an Uzbek club.
16. 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 (February 2024 edition), and
considering that the present claim was lodged on 23 December 2023, the May 2023 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
17. 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 TMS.
c. Merits of the dispute
18. 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
19. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the Claimant alleged a breach of the Contract by the
Respondent, to the extent of entitling the Claimant to terminate the relevant employment
agreement prematurely.
20. In this context, the Chamber noted that the Respondent failed to present its response to
the claim of the Claimant, in spite of having been invited to do so. By not presenting its
position to the claim, the Chamber was of the opinion that the Respondent renounced its
right of defence and, thus, accepted the allegations of the Claimant. The DRC therefore
confirmed it shall decide on the basis of the allegations and evidence filed by the Claimant
alone per art. 14 and 21 of the Procedural Rules.
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REF. FPSD-13159
21. Consequently, after having thoroughly analysed the submission of the Claimant as well as
the documentation at his disposal, the Chamber deemed that the first question to be
addressed in the present matter was whether the Claimant had just cause to terminate the
contract on 23 December 2023.
22. To this end, the Chamber referred to the wording of art. 14bis par.1 of the Regulations, in
accordance with which, if a club unlawfully fails 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 their financial obligation(s).
23. In this context, the Chamber noted that the Claimant claims having not received, inter alia,
his remuneration corresponding to the salaries due for October 2023 and November 2023.
Furthermore, the Chamber noted that the Claimant provided written evidence of having
put the Respondent in default on 7 December 2023, i.e., at least 15 days before unilaterally
terminating the Contract on 23 December 2023.
24. Furthermore, the Chamber noted that in the case at hand the Respondent bore the burden
of proving that it indeed complied with the financial terms of the contract concluded
between the parties. Nonetheless, the Respondent failed to provide any evidence in this
regard.
25. With the foregoing in mind, the Chamber concluded that the Claimant had a just cause to
unilaterally terminate the contract, based on art. 14bis par.1of the Regulations.
ii. Consequences
26. 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.
27. 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 two salaries
under the contract, amounting to USD 40,000.
28. Furthermore, the Chamber noted that the Respondent failed to pay the relevant bonuses
stipulated under clause 9.2 of the Contract in the amount of USD 1,875.
29. 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. USD
41,875.
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REF. FPSD-13159
30. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award the Claimant interest at the rate
of 5% p.a. on the outstanding amounts as from the respective due dates until the date of
effective payment.
31. 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.
32. 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.
33. 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.
34. 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 USD 260,000 (i.e. the residual value) serves as the basis for
the determination of the amount of compensation for breach of contract.
35. 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.
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REF. FPSD-13159
36. In this respect, by the time this decision was passed, the Chamber noted that the player
remained unemployed since the unilateral termination of the Contract.
37. 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 USD 260,000 to the player, which was considered a reasonable and justified amount of
compensation for breach of contract in the present matter.
38. Lastly, taking into consideration the player’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the player interest on said
compensation at the rate of 5% p.a. as of 23 December 2023 until the date of effective
payment.
iii. Compliance with monetary decisions
39. 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.
40. 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.
41. 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.
42. 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.
43. 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
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REF. FPSD-13159
44. 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.
45. 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.
46. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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REF. FPSD-13159
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Bachana Arabuli, is accepted.
2.
The Respondent, FC Neftchi, must pay to the Claimant the following amount(s):
USD 41,875 as outstanding remuneration plus interest p.a. as follows:
- 5% interest p.a. over the amount of USD 20,000 as from 1 November 2023 until the
date of effective payment;
- 5% interest p.a. over the amount of USD 1,500 as from 10 November 2023 until the
date of effective payment;
- 5% interest p.a. over the amount of USD 375 as from 24 November 2023 until the
date of effective payment;
- 5% interest p.a. over the amount of USD 20,000 as from 1 December 2023 until the
date of effective payment;
USD 260,000 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 24 December 2023 until the date of effective payment.
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 of the ban shall
be of up to 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.
5.
The consequences shall only be enforced at the request of the Claimant in accordance
with art. 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
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REF. FPSD-13159
NOTE RELATED TO THE FINDINGS OF THE DECISION
In accordance with art. 15 of the Procedural Rules Governing the Football Tribunal (hereinafter:
the Procedural Rules), this correspondence only communicates the findings of the decision
without grounds.
Should any of the parties wish to receive the grounds of the decision, a written request must
be received by FIFA, within 10 days of receipt of notification of the findings of the decision.
Failure to do so within the stated deadline will result in the decision becoming final and binding
and the parties being deemed to have waived their rights to file an appeal.
Whenever procedural costs are ordered, the grounds of the decision will only be notified (a)
to the party requesting the grounds; and (b) upon confirmation of payment of the relevant
procedural costs, if any (cf. art. 15 par. 6 of the Procedural Rules).
It is the burden of the party requesting the grounds of the decision to demonstrate that its
share of the procedural costs, if any, has been paid within 10 days of the notification of the
findings (cf. art. 25, par. 7 of the Procedural Rules). Failure to do so will result in the request for
the grounds being withdrawn. As a result, the decision will become final and binding and the
relevant party will be deemed to have waived their right to file an appeal.
No costs shall be charged if a party decides not to ask for the grounds of the decision and,
where applicable, the advance of costs will be reimbursed to the relevant party (cf. art. 25 par.
6 lit. a) of the Procedural Rules).
NOTE RELATING TO THE PAYMENT OF THE PROCEDURAL COSTS
If applicable, payments to FIFA should be made by wire transfer in US dollars (USD) to the
following bank account:
UBS Zurich
Account number 230-366677.61N (FIFA Players’ Status)
Clearing number 230
IBAN: CH12 0023 0230 3666 7761 N
SWIFT: UBSWCHZH80A
Please mention the applicable reference number
CONTACT INFORMATION
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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