Labour Disputes
Texto da decisão
REF FPSD-5731
Decision of the
Dispute Resolution Chamber
passed on 8 June 2022
regarding an employment-related dispute concerning the player David
Atanaskoski
BY:
Daan De Jong (The Netherlands)
CLAIMANT:
David Atanaskoski, Bulgaria
Represented by Toni Jovchevski
RESPONDENT:
Shakhter, Kazakhstan
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REF FPSD-5731
I.
Facts of the case
1.
On 4 March 2021, the Bulgarian player David Atanaskoski (hereinafter: the Claimant) and
Kazakhstani club Shakhter (hereinafter: the Respondent) concluded an employment contract
(hereinafter: the Contract) until 30 November 2021.
2.
Art. 1 of Annex 2 reads inter alia as follows:
3.
On 16 November 2021, the Respondent issued a letter of guarantee (hereinafter "the First Letter of
guarantee") which states as follows:
FC Shakhtar JSC (registration certificate No. 20885-1930-AO dated 20.09.2007), represented by Executive
Director Ye.Zh. Urazayev, guarantees to pay a bonus for participation in OLIMPBET Football
Championship among Premier League teams and The RK Cup drawing in the amount of 2 600 000 (two
million six hundred thousand) tenge. I undertake to pay this amount after the receipt of sponsorship
funds to the current account of the JSC until February 20, 2022. Payment of the bonus will be made by
the Employer by transferring funds to your card account. We reserve the right to make payment earlier
than the specified date.
4.
On 25 November 2021, the Respondent issued a second letter of guarantee (hereinafter "the
Second Letter of guarantee") which states as follows:
FC Shakhtar JSC (registration certificate No. 20885-1930-AO dated 20.09.2007), represented by Executive
Director Ye.Zh. Urazayev, guarantees to pay wage arrears under labor contract No. 28- 2021-0 dated
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04.03. 2021 in the amount of 3 661 349 (three million six hundred sixty-one thousand three hundred
forty-nine) tenge. I undertake to pay this amount after the receipt of sponsorship funds to the settlement
account of the JSC until 20 February 2022. Payment of the debt will be made by the Employer by
transferring funds to your card account. We reserve the right to make payment earlier than the specified
date.
5.
On 28 March 2022, the Claimant put the Respondent in default requesting the amount of KZT
3,461,349 granting a deadline of 10 days to comply.
6.
On 29 March 2022, the Respondent paid the amount of KZT 812,307.
II. Proceedings before FIFA
7.
On 8 April 2022, the Claimant filed the claim at hand before FIFA. A brief summary of the position
of the parties is detailed in continuation.
a. Position of the Claimant
8.
The Claimant states that the Respondent has not paid to the Player the outstanding due amount
of KZT 2,600,000 regarding the club's obligation for payment determined with the 1st Letter of
guarantee.
9.
The Claimant states that “a general rule, the basic legal principle of pacta sund servanda applies to all
football stakeholders, "small" and "big" clubs, unknown and top players, employees and employers,
notwithstanding their importance, role or power. In casa, in accordance with the principle of pacta sund
servanda, the Claimant is entitled to receive all due and outstanding amounts under the Employment
Contract and all additional documents”.
10. The Claimant filed the following requests for relief:
On these grounds, the Player hereby respectfully asks from the FIFA DRC to order to the Respondent Club
JSC "Football club "SHAKHTER" unconditionally to pay to the Player the outstanding debt on the grounds
of the 1st (first) Letter of guarantee calculated in total NET amount of KZT 2,600,000, which equals EUR
5.134,00 plus interest of 5% p.a. on the outstanding debt calculated as from the date when the
outstanding debt became due, as from 20 February 2022 until the date of effective payment on the
following Player's bank account given in enclose to this Claim (Bank Account Registration Form, exhibit
7) in North Macedonian Bank where the Player is domicile.
In addition, the Club (Respondent) to be sanctioned in accordance with paragraph 4 of Art. 12bis.
b. Position of the Respondent
11. The Respondent states that “According to clause 1.1. Appendix No. 2 Bonus payments to the Employee
are paid by the decision of the Club administration;”
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12. The Respondent deems that it has complied with its financial obligations towards the Player in full.
13. The Respondent further states that “the amount of bonus payments is not determined, and the
Employee agrees to this condition by signing the Employment Contract, then the bonus payments
themselves are not a guaranteed part of the Employee's remuneration, but are paid by the Employer,
depending on the availability of certain conditions”.
14. The Respondent argues that “from the wording of the Letter of Guarantee submitted by the
Claimant regarding the payment of bonus remuneration, it can be seen that the Employer
"guarantees to pay a bonus for participation in the OLIMPBET Football Championship among the
Premier League teams and the Cup of the Republic of Kazakhstan in the amount of 2 600 000 tenge .
after the receipt of sponsorship funds to the settlement account of JSC" it is clear that it was interpreted
as the intention of the Employer to pay premium bonus, but which depends on the receipt of sponsorship
funds to the current account of the Club”.
15. In the Respondent’s view, “the party signing a document of legal significance (Contract), without
specifying a specific amount of the bonus, as a rule, does this at its own responsibility. It is clearly seen
from the text”.
16. The Respondent filed the following requests for relief:
Based on the foregoing, Respondent hereby requests FIFA DRC to decide:
1. To satisfy the claims of the Plaintiff, David Atanaskoski - refuse
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 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 8 April 2022 and submitted for decision on 8 June 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 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 (March 2022), the Single Judge is competent to deal with the matter at
stake, which concerns an employment-related dispute with an international dimension between a
Bulgarian player and a Kazakh club.
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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 (March 2022) and considering that the present
claim was lodged on 8 April 2022, the same edition of said regulations (hereinafter: the Regulations)
is applicable to the matter at hand as to the substance.
b. Burden of proof
20. 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.
c. Merits of the dispute
21. 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
22. The foregoing having been established; the Single Judge moved to the substance of the matter and
took note of the fact that the parties strongly dispute the entitlement of the Claimant to the
requested amount.
23. In this context, the Single Judge acknowledged that his task was to determine if the Claimant is
entitled to the requested amount and if based on the evidence presented by the parties, whether
the claimed amounts had in fact remained unpaid by the Respondent and, if so, whether the latter
had a valid justification for not having complied with its financial obligations.
24. The Single Judge observed that the Respondent alleged that the Claimant is not entitled to the
amounts claimed since the payment of the amount was subject to the successful receipt of
sponsorships.
25. However, the Single Judge underlined that against the arguments of the Respondent, the parties
did not establish specific conditions upon which the Respondent was to receive the said
sponsorships and more importantly, the Claimant had no influence over the receipt of the sums.
Hence, the Single Judge found that the Claimant was entitled to the amount requested as per the
terms of the First Letter of Guarantee.
26. In view of the foregoing and bearing in mind the basic legal principle of pacta sunt servanda, which
in essence means that agreements must be respected by the parties in good faith, the Respondent
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is held liable to pay the Claimant the outstanding amounts deriving from the contract concluded
between the parties and the First Letter of Guarantee, namely KZT 2,600,000.
27. Lastly, taking into consideration the Claimant’s request as well as the constant practice of the
Football Tribunal in this regard, the Single Judge decided to award the Claimant interest on the
previous amount at the rate of 5% p.a. as of the due date until the date of effective payment.
ii. Compliance with monetary decisions
28. 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.
29. 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.
30. 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.
31. 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.
32. 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
33. 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.
34. 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.
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35. Lastly, the Single Judge concluded its deliberations by rejecting 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, David Atanaskoski, is partially accepted.
2.
The Respondent, Shakhter, has to pay to the Claimant, the following amount(s):
- Kazakhstan Tenge (“KZT”) 2,600,000 as outstanding remuneration plus 5% interest p.a. as from 21
February 2022 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. 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.
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
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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).
CONTACT INFORMATION
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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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