Labour Disputes
Texto da decisão
REF. FPSD-8423
Decision of the
Dispute Resolution Chamber
passed on 15 February 2023
regarding an employment-related dispute concerning
the player Artem Baranovskyi
BY:
Angela Collins (Australia), Single judge of the DRC
CLAIMANT:
Player Artem BARANOVSKYI, Ukraine
RESPONDENT:
Club Caspiy, Kazakhstan
pg. 2
REF. FPSD-8423
I. Facts of the case
1.
On 1 February 2022, the parties concluded an employment contract (hereinafter: the
contract), valid as from the date of its signature until 30 November 2022.
2.
In accordance with clauses 3.1 and 3.6 of the contract, the club undertook to pay to the
player, inter alia, a monthly salary of KZT 2,500,000 net (approx.: USD 5,400), payable by
the 10th day of the following month to its accrual.
3.
Moreover, along with the contract, the parties concluded an appendix to the contract,
whereunder the parties agreed, inter alia, as follows:
-
The club undertook to pay to the player a bonus in the amount of KZT 200,000 net
(approx.: USD 430) for every game won.
-
The club undertook to provide the player with 2 flight tickets (return tickets) per
season (economy class) “from home to the Employer’s location and back”.
4.
By means of his letter dated 18 October 2022, the player put the club in default of payment
in the amount of KZT 7, 500,000 net corresponding to the outstanding salaries of July,
August and September 2022, thereby granting the club a deadline until 5 November 2022
to remedy its default.
5.
The club replied thereto via its letter dated 28 October 2022, whereby the latter explained
that it was waiting to receive funds and that the player would be paid by 15 December
2022.
6.
Thereafter, on 31 October 2022, the club sent another letter to the player whereby the club
undertook to pay the player’s dept in an alleged amount of KZT 13,192,500 by no later than
25 December 2022.
7.
Subsequently, the player unilaterally terminated the contract by means of his letter of 7
November 2022.
8.
The player remained unemployed following the termination of the contract, i.e. during the
remaining part of the month of November 2022.
pg. 3
REF. FPSD-8423
II. Proceedings before FIFA
a. Position of the Claimant
9.
On 30 November 2022, 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 KZT 15,664,480 net (approx.: USD 34,000), plus 5% interest p.a. as from 1
December 2022 until the date of effective payment, broken down by the Claimant as
follows:
Outstanding remuneration: KZT 11,340,156
- KZT 2,500,000 as salary of June 2022;
- KZT 2,500,000 as salary of July 2022;
- KZT 2,500,000 as salary of September 2022;
- KZT 2,500,000 as salary of October 2022;
- KZT 800,000 as victory bonuses (3 games won);
- KZT 540,156 as reimbursement of flight tickets.
Compensation for breach of contract: KZT 4,324,324
- KZT 2,500,000 as compensation for breach of contract corresponding to the salary of
November 2022;
- KZT 1,824,324 as “compensation for annual unused paid leave”.
10. In his claim, the player argued that despite having validly entered into the contract (along
with its appendix), the club failed to comply with its financial obligations towards him. In
addition, the player stressed that the club kept on postponing the payment by assuring to
the player that his overdue moneys would be paid at a later stage upon receipt of funds,
which did not occur.
11. In this context, while referring to the default notices sent to the club, the player maintained
that he terminated the contract with just cause on 7 November 2022.
b. Position of the Respondent
12. Despite having been invited to reply to the claim, the club failed to do so.
pg. 4
REF. FPSD-8423
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
13. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter referred to as
the Single Judge) analysed whether she was competent to deal with the case at hand. In this
respect, she took note that the present matter was presented to FIFA on and submitted
for decision on 30 November 2022. Taking into account the wording of art. 34 of the
October 2022 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.
14. 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 (October 2022 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 Ukranian player
and a Kazakh club.
15. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, she confirmed that, in accordance with art. 26 par.
1 and 2 of the Regulations on the Status and Transfer of Players (October 2022 edition) and
considering that the present claim was lodged on 30 November 2022, the October 2022
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
16. 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 she 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
17. Its 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, she will refer only to the facts, arguments and documentary evidence,
which it considered pertinent for the assessment of the matter at hand.
pg. 5
REF. FPSD-8423
i. Main legal discussion and considerations
18. The foregoing having been established, the Single Judge noted that the Claimant is
requesting to be awarded outstanding remuneration and compensation for breach of
contract from the Respondent in the amount of KZT 15,664,480 net corresponding to
outstanding salaries, bonuses, reimbursement of flight tickets’ expenses, compensation for
breach of contract and compensation for unused paid leave.
19. Moreover, the Single Judge observed that, on its part, the Respondent failed to reply to the
claim. Thus, the allegations of the Claimant, if supported with the necessary evidence, will
be considered as uncontested facts.
20. As for the outstanding salaries requested, the Single Judge noted that the request of the
Claimant has a legal basis (clause 3.1 of the contract) and acknowledged that it has
remained uncontested that the Respondent failed to pay them. Thus, continued the Single
Judge, the amount of KZT 10,000,000 (salaries of June, July, September and October 2022
can be awarded to the Claimant).
21. In connection with As for the reimbursement of flight tickets, the Single Judge took note of
the fact that the appendix to the contract states that the club undertakes to provide the
player with return tickets from his “home to the Employer’s location and back”. However,
explained the Single Judge, the player has provided evidence of having incurred in flight
tickets’ expenses to travel from Istambul to Miami, neither of which correspond to the
home city of the player nor to the city where the Respondent club is based. Thus, the Single
Judge determined that the request of the Claimant in this regard needs to be rejected.
22. As for the bonuses pertaining to games won (3 in total), the Single Judge highlighted that
the Claimant has not provided evidence of the victories to which he is referring. Hence, the
Single Judge decided that the player has not met his burden of proof cf. art. 13.5 of the
Procedural Rules and, therefore, his request to receive KZT 800,000 needs to be rejected.
23. As for the compensation for breach of contract, the Single Judge underscored that it
remained undisputed that the player, by means of his letter of 18 October 2022, put the
club in default of payment of 3 monthly salaries (June, July and September 2022) and
granted the club more than 15 days to cure its breach; to no avail. Thus, the Single Judge
decided that the Claimant terminated the contract with just cause on 7 November 2022 cf.
art. 14bis of the Regulations.
24. In this context, the Single Judge decided that the player is entitled to receive the salary of
November 2022 as compensation for breach of contract in the amount of KZT 2,500,000,
which the player could not mitigate insofar as he did not find a new employment before
the end of the month of November 2022.
pg. 6
REF. FPSD-8423
25. As for the compensation for unused paid leave, the Single Judge underscored that no
amounts can be awarded on top of the already defined economical value of a contract. In
this regard, the Single Judge stressed that, whereas it is the right of the employee to be on
holidays, no further amounts beyond the actual value of a contract can be granted as
compensation for unused paid leave. Thus, the Single Judge decided that this petitum needs
to be rejected.
ii. Consequences
26. Having stated the above, the members of the Single Judge turned their attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent.
27. The Single Judge observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are equivalent to 4 salaries (June,
July, September and October) under the contract, amounting to KZT 10,000,000 net in total.
28. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Single Judge 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
10,000,000 net.
29. 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 1 December 2022 (as requested) until the
date of effective payment.
30. Having stated the above, the Single Judge 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 Single
Judge 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.
31. In application of the relevant provision, the Single Judge 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.
pg. 7
REF. FPSD-8423
32. In this regard, the Single Judge 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 Single Judge 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 Single Judge 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 Single Judge 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 Single Judge
concluded that the amount of KZT 2,500,000 (i.e. the salary of November 2022) serves as
the basis for the determination of the amount of compensation for breach of contract.
35. In continuation, the Single Judge 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.
36. In this respect, the Single Judge noted that the player did not find any new employment
during the month of November 2022 and, hence, that the player could not mitigate his
damages.
37. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Single Judge decided that the club must pay the amount
of KZT 2,500,000 net to the player (i.e. the non-mitigated salary of November 2022), which
was to be 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 1 December 2022 until the date of effective
payment.
iii. Compliance with monetary decisions
39. Finally, taking into account the applicable Regulations, the Single 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
pg. 8
REF. FPSD-8423
to pay the relevant amounts of outstanding remuneration and/or compensation in due
time.
40. 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.
41. 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.
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 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
44. 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.
45. 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.
46. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
pg. 9
REF. FPSD-8423
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Artem BARANOVSKYI, is partially accepted.
2.
The Respondent, Club Caspiy, has to pay to the Claimant, the following amount(s):
- KZT 10,000,000 net as outstanding remuneration, plus 5% interest p.a. as from 1
December 2022 until the date of effective payment;
- KZT 2,500,000 net as compensation for breach of contract, plus 5% interest p.a. as
from 1 December 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.
pg. 10
REF. FPSD-8423
7.
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 Governing the Football
Tribunal).
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
pg. 11