Labour Disputes
Texto da decisão
REF. FPSD-11237
Decision of the
Dispute Resolution Chamber
passed on 13 September 2023
regarding an employment-related dispute concerning
the player Vilius Armanavicius
BY:
André dos Santos Megale (Brazil), Single Judge
CLAIMANT:
Vilius Armanavicius, Lithuania
Represented by Martynas Kalvelis
RESPONDENT:
Caspiy, Kazakhstan
pg. 2
REF. FPSD-11237
I. Facts of the case
1.
The parties to the dispute are the Lithuanian player, Vilius Armanavicius (hereinafter: the
Claimant or the player) and the Kazakhstani club, Caspiy (hereinafter: the Respondent or the
club).
2.
On 8 January 2023, the Claimant and the Respondent concluded an employment contract
(hereinafter: the contract), valid as from the same date until 30 November 2023.
3.
Clause 3 of the contract reads as follows:
“1. PAYMENT
1.1. The [Respondent] shall set the [Claimant]’s monthly basic wages in the amount of
KZT4,738,000 (four million seven hundred and thirty-eight thousand tenge).
1.2. The wages shall be paid by bank transfer no later than the second decade of the month
following the reporting.
1.3. When paying the wages, the [Respondent] shall be obliged to notify the [Claimant] of
the components of the wages due to him for the relevant period, the amount and grounds
for the deductions made, as well as of the total amount due, in writing or electronically.
1.4. All payments due to the [Claimant] and reflected herein shall be specified considering
the deduction (payable, net) of taxes and other obligatory payments provided for by the
laws of the Republic of Kazakhstan.”
4.
On 2 July 2023, the Claimant and the Respondent concluded a termination agreement
(hereinafter: the termination agreement) by means of which they established as follows:
“1. The Parties have agreed to terminate [the contract] from 02 July 2023. The last working
day shall be 01 July 2023.
2. The [Respondent] shall recognize the wage arrears to the [Claimant] as of today in the
amount of KZT 12,951,999 (twelve million nine hundred fifty-one thousand nine hundred
and ninety-nine tenge) and shall undertake to pay it by 31 July 2023, inclusive
3. The [Respondent] shall pay the compensation to the [Claimant] in the amount of KZT
5,031,630 (five million thirty-one thousand six hundred and thirty tenge) for the termination
of [the contract] by 31 July 2023, inclusive.
4. The total debt hereunder shall amount to KZT 17,983,629 (seventeen million nine
hundred eighty-three thousand six hundred and twenty-nine tenge).
pg. 3
REF. FPSD-11237
5. All sums specified herein shall be net amounts, that is, after tax.
6. The [Claimant] shall not have any claims of financial and liability nature against the
[Respondent], with the exception of the financial conditions stipulated by the Parties in
clauses 2 and 3 hereof.
7. In case of late payment, i.e. delays in payment within the specified time period, the
[Claimant] shall be entitled to demand from the club the entire amount specified in [the
contract].
8. The Parties shall resolve all disputes and disagreements hereunder in the legal bodies of
FIFA and CAS.”
5.
On 6 August 2023, the player lodged a claim before FIFA against the club, and sought the
following relief:
“In accordance to the circumstances and arguments presented in this Claim and pursuant
to the FIFA RSTP and the Procedural Rules, the Claimant hereby requests the DRC:
To award to the Claimant from the Respondent outstanding amount of KZT 17,983,629
(seventeen million nine hundred and eighty-three thousand six hundred and twenty-nine
tenge) net;
To award to the Claimant from the Respondent contractual penalty as per Clause 7 of the
Agreement in the amount of KZT 23,690,000 (twenty-three million six hundred ninety
thousand tenge) net;
To award to the Claimant from the Respondent interest at the rate of 5 (five) percent per
annum from the awarded amounts (KZT 41,673,629) as from 31 July 2023 until the day of
effective payment;
To impose sporting sanctions against the Respondent for overdue payments”.
6.
In his claim, the Claimant explained that the Respondent failed to pay his salary and other
expenses in a timely manner, which gave him grounds to terminate the contract
unilaterally. However, the Claimant alleged having acted in good faith and agreed to
terminate the contract amicably by signing the termination agreement.
7.
In continuation, the Claimant argued that the termination agreement also stipulated that
if the Respondent failed to pay the agreed amount by the deadline, he would have the right
to claim the entire amount specified in the original contract as a contractual penalty. The
Claimant contended that the Respondent did not pay any part of the agreed amount by 31
July 2023, thus breaching the agreement and triggering the contractual penalty clause.
pg. 4
REF. FPSD-11237
8.
As such, the player claims both the outstanding amount of KZT 17,983,629 per the
termination agreement as well as KZT 23,690,000 as the residual value of the contract (i.e.,
KZT 4,738,000 * 5 months).
9.
In its reply dated 28 August 2023, the club filed a short statement as follows:
“1. Indeed, on July 2, 2023, the Player and the Professional Football Club "Kaspiy"
(hereinafter referred to as the Club) concluded an Agreement on termination of the
Contract, according to which the club undertook to pay the salary arrears in the amount
of 12,951,999 (twelve million nine hundred and fifty–one thousand nine hundred and
ninety tenge). It should be noted that due to a lack of funding, the Club did not pay the
player's salary in full, the last payment in the amount of 2,000,000 (two million) tenge was
credited to the Player's account on 01.07.2023, according to the payment order.
2. According to clause 3 of the Agreement, the Club also undertook to pay 5,031,630 (five
million thirty-one thousand six hundred and thirty) tenge as compensation for termination
of the Contract.
3. The total amount of debt is 17,983,629 (seventeen million nine hundred eighty-three
thousand six hundred twenty-nine) tenge and had to be paid by July 31, 2023.
4. The Club was unable to fulfill its financial obligations arising from the Agreement in a
timely manner and in full, this is due to the fact that the Club is a state institution and
receives financial resources from the state budget, undergoing various procedures related
to the state budget.
5. In accordance with the above, the Club did not receive timely funds from the state budget
and was unable to fulfill all the conditions of the [termination agreement].
6. It is worth noting that due to the timely termination of the Agreement with the Club, the
Player was able to conclude an agreement with another football club and continue his
professional activity continuously, while the Club did not cause any obstacles for the Player
to continue his professional activity.
7. The Club undertakes to pay the full amount of debt in the amount of 17,983,629
(seventeen million nine hundred eighty-three thousand six hundred twenty-nine) tenge by
September 10, 2023 after receipt of funds to the Club's accounts. We remind you that the
Club is a state institution and state bodies allocate funds to the Club for its functioning.
RELIEFS SOUGHT
In accordance with the above, the Club undertakes to pay the full amount of debt in the
amount of 17,983,629 (seventeen million nine hundred eighty-three thousand six hundred
twenty-nine) tenge by September 10, 2023 and requests DRC not to apply penalties for
overdue payments”.
pg. 5
REF. FPSD-11237
10. On 1 August 2023, the Respondent sent an unsolicited correspondence in which it argued
it paid KZT 17,983,629 to the player on 29 August 2023.
11. Upon request of the FIFA general secretariat, the player confirmed having received the
abovementioned amount but maintained that because the termination agreement was not
complied with, the penalty set therein should be enforced (i.e., payment of KZT 23,690,000).
II. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
12. 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 6 August 2023
and submitted for decision on 13 September 2023. 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.
13. Subsequently, the Single Judge referred to art. 2 par. 1 and art. 24 par. 1 lit. a) of the
Procedural Rules and observed that in accordance with art. 23 par. 1 in combination with
art. 22 par. 1 lit. b) of the Regulations on the Status and Transfer of Players (May 2023), he
is competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between an Lithuanian player and a Kazakhstani
club.
14. 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 Players (May 2023 edition), and
considering that the present claim was lodged on 6 August 2023, the same edition of said
regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
15. 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).
pg. 6
REF. FPSD-11237
c. Merits of the dispute
16. The 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
17. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that with the confirmation from the player of overdue
amounts having being paid by the club, the dispute between the parties essentially lies in
the application of clause 7 of the termination agreement.
18. On this note, the Single Judge highlighted that the club admits having failed to timely pay
the amount agreed in the termination agreement as compensation for the termination of
the contract.
19. Given the circumstances of the case and the fact that the club both does not challenge the
explanation for the conclusion of the termination agreement and admits to its breach of
the same, the Single Judge decided on the basis of the principle pacta sunt servanda to
partially uphold the claim of the player, with the following particularities: (a) the entire
residual value of the contract amounting to KZT 23,690,000 should be awarded per clause
7 of the termination agreement; and (b) as the player himself recognizes the clause in
question as a penalty one, no interest shall apply over the penalty in line with the principle
of ne bis in idem and the jurisprudence of the Football Tribunal.
ii. Compliance with monetary decisions
20. Finally, taking into account the applicable Regulations, the Single Judge 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.
21. 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.
pg. 7
REF. FPSD-11237
22. Therefore, bearing in mind the above, the Single Judge 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.
23. 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.
24. 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. 24 par.
8 of the Regulations.
d. Costs
25. 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.
26. 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.
27. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
pg. 8
REF. FPSD-11237
III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Vilius Armanavicius, is partially accepted.
2.
The Respondent, Caspiy, must pay to the Claimant KZT 23,690,000.
3.
Any further claims of the Claimant are rejected.
4.
Full payment shall be made to the bank account indicated in the enclosed Bank Account
Registration Form.
5.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, if full payment
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 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. 24 par. 7 and 8 and art. 25 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
pg. 9
REF. FPSD-11237
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 Governing the Football
Tribunal).
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
pg. 10