Labour Disputes
Texto da decisão
REF FPSD-3071
Decision of the
Dispute Resolution Chamber
passed on 25 November 2021
regarding an employment-related dispute concerning the player Ziguy Badibanga
BY:
Frans DE WEGER (Netherlands), Chairperson
Mario FLORES CHEMOR (Mexico), member
Stefano SARTORI (Italy), member
CLAIMANT:
Ziguy Badibanga, Belgium
RESPONDENT:
FC Shakhter, Kazakhstan
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REF FPSD-3071
I.
Facts
1.
On 26 March 2021, the parties concluded valid as from the date of signature until 30 November 2021.
2.
As per clause 3.1. of the Contract, the Club undertook an obligation to pay to the Player the salary of
KZT 800,000 (eight hundred thousand) net per month.
3.
According to annex 2 to the contract, the player was entitled to the following:
“2. (…) the Employer undertakes to pay the Employee a monthly amount of money from sponsorship
funds in proportion to the hours worked in the following amount: 5 080 000 (five million eighty
thousand) tenge ("netto").
3. The employee is additionally set a lump sum payment in the amount of 3 360 000 (three million three
hundred sixty thousand) tenge, which is paid in the following order by 15.04.2021.”
4.
The contract further stipulated the following:
“7.5. In case of early termination of the Contract at the initiative of the Employee in the absence of guilty
actions of the Club, or at the initiative of the Club, but in the presence of guilty actions of the Employee,
the Employee is obliged to pay the Club compensation for early termination of the Contract in the
amount of no more than the employee’s monthly salary for 1 (one) months in tenge. This compensation
is final and cannot be reduced or increased depending on the further employment of the Employee.
7.6. In the event of early termination of the Contract at the initiative of the Club in the absence of guilty
actions of the Employee, or at the initiative of the Employee, but in the presence of guilty actions of the
Club, the Club is obliged to pay the Employee compensation for early termination of the Contract in the
amount of no more than the employee’s monthly salary for 1 (one) months in tenge.”
5.
On 23 May 2021, the club sent a draft agreement to the player terminate the contract.
6.
On 13 July 2021, the club handed a termination notice to the player, dated 8 July 2021, with the
following contents:
“Football club "Shakhter" (hereinafter: the "Club'') hereby notifies you of the early termination of the
employment contract No. 30-2021-0 of "26" March 2021 (hereinafter: the "Contract'') on the initiative
of the Club. The date of termination of the Contract and the last working day will be "09" July 2021.
In accordance with the terms of clause 7 .6 of the Contract, upon dismissal, you will be paid
compensation for the early termination in the amount of a monthly salary for 1 (one) month in tenge.
7.
On 7 September 2021, the player declared that he remained unemployed.
8.
On 17 July 2021, the Claimant lodged a claim before FIFA and requested the following;
- KZT 8,873,143.9 as outstanding remuneration “on account of salary arrears for the period worked
from March 26, 2021 to July 13, 2021”. In particular, the player noted that, from 26 March 2021
until 13 July 2021, he received the following amounts:
27.04.2021 - KZT 3 360 000 (one-time payment)
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-
04.05.2021 - KZT 3 516 923
17.05.2021 - KZT 553 846.15
28.05.2021- KZT 350,000
28.06.2021 - KZT 591 304.35
09.07.2021 - KZT 3 754 782.60
KZT 29,400,000 as compensation (i.e. 5,880,000*5);
KZT 17,640,000 as additional compensation, or KZT 35,280,000 as increased additional
compensation.
5% interest p.a.
9.
According to the Claimant, “the actions of the Club violated the Constitutional rights, provisions and
norms of the current labor legislation, as well as exceeded the official powers and competence of
responsible officials of the Club in the exercise of rights and obligations in the field of labor relations.
10.
The Claimant insisted that he never agreed on the termination of the contract.
11.
In its reply to the claim, the Respondent argued that, from 25 May 2021 until 10 June 2021, the Player
was absent from the Club’s premises for unknown reasons, and explained that this can be verified with
his passport.
12.
The club further confirmed that it terminated the contract on the basis of clause 7.6 of the contract.
13.
As to the alleged existence of outstanding payments, the club denied having any debt towards the player.
14.
In this regard, the club underlined that the contract stipulated that the player would be remunerated “in
proportion to the hours worked”.
15.
According to the club, as per the facts of the case, the Player was absent from the Club’s premises from
25 May 2021 till 10 June 2021 and on 19 June 2021. Hence, bearing in mind the wording of the contract,
the Club argued that it had grounds to remunerate the Player only for the work that he actually provided
to the Club.
16.
The club therefore argued that it paid the player as follows:
April 2021: The period of the Player’s employment commenced on 10 April 2021, therefore in April the
Player worked from 10 April till 30 April with a total of 18 working days. In this regard, the calculation
of the Player’s remuneration for April is the following: KZT 5,880,000 / 26 total working days in April x
18 working days of the Player = KZT 4,070,769.22 net.
May 2021: the Player was absent from the Club’s premises and the country from 25 May, therefore the
Player worked from 1 May till 24 May, which made a total of 17 working days excluding the public
holidays. According to the working calendar for 2021 in Kazakhstan, there were three holidays in May:
1 May, 7 May, and 9 May. For the 5-day working week the holidays on 1 May and 9 May were extended
for one day each on the following Mondays. However, for the 6-day working week the only extension
was made for the holiday on 9 May 2021.
In this regard, the calculation of the Player’s remuneration for May is the following: KZT 5,880,000 / 23
total working days in May x 17 working days of the Player = KZT 4,346,086.95 net.
June 2021: The Player returned to the Club’s premises on 11 June 2021, therefore the Player worked
since 11 June till 30 June except for 19 June 2021. The calculation of the Player’s remuneration for June
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is the following: KZT 5,880,000 / 26 total working days in June x 16 working days of the Player = KZT
3,618,461.53 net.
July 2021: The Player’s last working day as per the Notification was 9 July 2021, therefore in July the
Player had a total of 7 working days except for the public holiday on 6 July 2021 which was the Capital
Day in Kazakhstan. In this regard, the calculation of the Player’s remuneration for July is the following:
KZT 5,880,000 / 25 total working days in July x 7 working days of the Player + compensation for unused
annual leave = KZT 1,646,400 net + KZT 160,535.12 = KZT 1,806,935.12 net total.
17.
In his replica, the player argued that, in any case, a contract between a professional and a club can be
terminated only after the expiration of the contract or by mutual agreement.
18.
The player further denied that he was absent on an unauthorized basis, since it was agreed and
confirmed with the club via a “Whatsapp” correspondence. In particular, the player submitted a
screenshot of a conversation with “dado”, where the latter stated the following:
“I spoke with the president, you can fly home for treatment”,
19.
In addition, the player attached a medical report from a doctor in Brussels, Belgium, dated 1 June 2021,
referring to an injury that occurred on 22 May 2021.
20.
As final comments, the club contested the evidence presented by the player and, in particular, concerning
the “Whatsapp” conversation.
21.
Moreover, the club considered that , the medical documents attached to the Response do not serve as
evidence of the fact that the Club authorized the Player’s treatment or was even aware of it.
22.
The Respondent underlined that it did not deny the fact that the maximum monthly payment to the
Player under the Contract was KZT 5,880,000 net. However, as it was explained in the Answer, the
calculation of payment for every month was made according to the number of days worked for the Club
in accordance with clause 2 of the Annex No. 2.
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II. Considerations of the Dispute Resolution Chamber
a.
Competence and applicable legal framework
1.
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 17 July 2021 and submitted for decision on 27
October 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.
2.
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. a) OR 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 Belgian player and a Kazakh club.
3.
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 Player (August 2021 edition), and considering that the
present claim was lodged on 17 July 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
4.
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
5.
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 abovementioned 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
6.
The foregoing having been established; the Chamber moved to the substance of the matter.
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7.
In this context, the Chamber acknowledged, on 26 March 2021, the parties concluded valid as
from the date of signature until 30 November 2021.
8.
Subsequently, the Chamber noted that the player lodged a claim against the club for breach of
contract without just cause and outstanding remuneration, noting that the club unilaterally
terminated the contract by handing him a termination notice on 13 July 2021 (date 8 July 2021)
(cf. point I. 7 above).
9.
On the other hand, the Chamber took note of the position of the Respondent, according to
which, from 25 May 2021 until 10 June 2021, the Player was absent from the Club’s premises
for unknown reasons. The Chamber further observed that the club confirmed that it terminated
the contract on the basis of clause 7.6 of the contract.
10. In view of the above, the Chamber understood that the main legal issue at stake is to determine
whether the club had a just cause to terminate the contract.
11. In this respect, the Chamber went on to analyse the contents of the termination letter of 13 July
2021, and noted that the club did not mention any substantive reason to terminate the contract,
apart from referring to art. 7.6 of the contract, which is fundamentally a clause determining the
amount of payable compensation. Therefore, the Chamber established that the termination of
the contract was without just cause, and the player is therefore entitled to compensation.
ii. Consequences
12. 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.
13. The Chamber observed that, according to the player the outstanding remuneration at the time of
termination (i.e. 13 July 2021), amounts to KZT 8,873,143.9 (cf. point I 9 above).
14. In this respect, the Chamber took note of the Respondent’s position, according to which the
contract stipulated that the player was to be paid for the effectively worked hours.
15. However, the Chamber noted that the evidence provided by the club in this respect is insufficient,
and therefore it assumed that the player should receive his salary in full.
16. The Chamber further observed that the club further performed deductions for public holidays. In
the opinion of the Chamber, public holidays, by definition, are payable. Hence, the Chamber
established that the club could not perform said deduction.
17. In sum, the Chamber established that the player should have received KZT 5,880,000 in total per
month, plus a payment of KZT 3,360,000 on 15 April 2021. Thus, from April to June 2021, he
should have received 3*5,880,000 + 3,360,000 = KZT 21,000,000.
18. However, the Chamber observed that the player was paid KZT 12 126 856,10 as follows:
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REF FPSD-3071
27.04.2021 KZT 3 360 000 (one-time payment)
04.05.2021 KZT 3 516 923
17.05.2021 KZT 553 846.15
28.05.2021 KZT 350,000
28.06.2021 KZT 591 304.35
09.07.2021 - KZT 3 754 782.60
19. 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 8,873,143.9 (i.e.
21,000,000 – 12,126,856.10).
20. 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 due dates until the date of effective payment.
21. 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.
22. 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 observed that art. 7.6 established
that, for such situations, the player would be entitled to one monthly salary. The Chamber verified
that the contents of said clause are proportional and reciprocal.
23. 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 5,880,000 to
the player (i.e. one monthly salary, in accordance with clause 7.6 of the contract), which was to
be considered a reasonable and justified amount of compensation for breach of contract in the
present matter.
24. 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 the date of the claim until the date of effective payment.
iii. Compliance with monetary decisions
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25. Finally, taking into account the applicable Regulations, the Chamber 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 party to pay the
relevant amounts of outstanding remuneration and/or compensation in due time.
26. 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.
27. 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. 24bis par. 2, 4, and 7 of the Regulations.
28. 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. 24bis par. 8 of the
Regulations.
d.
Costs
29. 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.
30. 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.
31. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any
of the parties.
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III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Ziguy Badibanga, is partially accepted.
2.
The Respondent, FC Shakhter, has to pay to the Claimant, the following amount:
- KZT 8,873,143.90 as outstanding remuneration plus 5% interest p.a. as from 13 July 2021
until the date of effective payment.
- KZT 5,880,000 as compensation for breach of contract without just cause plus 5% interest
p.a. as from 17 July 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 (February 2021
edition), 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. 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 58 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 20 of the Procedural Rules).
CONTACT INFORMATION
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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