DRC - Preliminary Decisions
Texto da decisão
REF. FPSD-13407
Decision of the
Dispute Resolution Chamber
passed on 3 July 2024
regarding an employment-related dispute concerning the player Ruslan
Bolov
BY:
André Dos Santos Megale (Brazil)
CLAIMANT:
Ruslan Bolov, Russia
Represented by Sila International Lawyers
RESPONDENT:
Okzhetpes, Kazakhstan
pg. 2
REF. FPSD-13407
I.
Facts of the case
1.
On 1 November 2021, the Russian player, Ruslan Bolov (hereinafter: Claimant or player) and
the Kazakh club, Okzhetpes (hereinafter: club or Respondent) concluded an employment
contract (hereinafter: contract) valid as from 1 November 2021 until 30 November 2022.
2.
According to the contract, the club undertook to pay the player a monthly base salary of
KZT 4,500,000 net, payable by the 10th day of each month.
3.
On 13 June 2022, the player and the club concluded an additional agreement (hereinafter:
1st additional agreement) which established, inter alia, the following:
"In case "Okzhetpes" football team promotes to the Premier League following the results of the
Championship of the Republic of Kazakhstan among the teams of the First League of the sports
season of 2022, the Employment Contract with the Employee is extended until November 2023".
This Additional Agreement is an integral part of the Employment Contract No. 130 of 1 November
2021, made and signed in three copies having the same legal force, one copy for each of the
Parties, one copy for the PFLK.”
4.
On 1 March 2023, the coach and a club concluded a further agreement (hereinafter: 2nd
additional agreement) which established, the amount of bonuses for the matches of the
sports season of 2023.
5.
On 26 December 2023, the player sent a default notice to the club, requesting payment of
the total amount of KZT 40,083,630,60 net, granting it a deadline of 10 days to comply,
however to no avail.
6.
On 4 January 2024, the club replied requesting a calculation of the player’s debt as it does
not agree with the amount of debt.
7.
On 9 January 2024, the player provided the calculation to the club and provided an
additional deadline of 5 days to the club for payment of the said debt.
8.
On 17 January 2024, the club sent a further correspondence to the player, only
acknowledging a debt of KZT 14,703,322.
II. Proceedings before FIFA
9.
On 19 January 2024, the player filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a.
Position of the Player
10. According to the player, the club failed to comply with its contractual financial obligations.
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REF. FPSD-13407
11. The requests for relief of the player, were the following:
1)
The claim of the Claimant, Mr. Ruslan Bolov, is accepted.
2)
The Respondent, Football club Okzhetpes, Kazakhstan, has to pay to the Claimant, Mr. Ruslan
Bolov, the amount of KZT 29,535,914 net plus 5% interest p.a. as outstanding remuneration as
follows:
-
5% interest p.a. on the amount of KZT 785,912.61 net as from 11 June 2023 until the date of
effective payment;
5% interest p.a. on the amount of KZT 4,500,000 net as from 11 July 2023 until the date of
effective payment;
5% interest p.a. on the amount of KZT 4,500,000 net as from 11 August 2023 until the date of
effective payment;
5% interest p.a. on the amount of KZT 4,750,000.20 net as from 11 September 2023 until the
date of effective payment;
5% interest p.a. on the amount of KZT 5,250,000.60 net as from 11 October 2023 until the date
of effective payment;
5% interest p.a. on the amount of KZT 5,250,000.60 net as from 11 November 2023 until the
date of effective payment;
5% interest p.a. on the amount of KZT 4,500,000 net as from 1 December 2023 until the date of
effective payment.
-
3)
The Respondent, Football club Okzhetpes, Kazakhstan, has to pay to the Claimant, Mr. Ruslan
Bolov, the amount of KZT 9,116,140.70 net as compensation for unused leave, plus 5% interest
p.a. as from 1 December 2023 until the date of effective payment.
4)
Sanctions according to article 12bis of the FIFA Regulations on the Status and Transfer of Players
is imposed on the Respondent, Football club Okzhetpes, Kazakhstan.
b.
Position of the Club
12. In its reply, the club states that since commencement of the contract, the club has paid the
total amount of KZT 81,779, 039.7 to the player.
13. The club indicated that the player was not entitled to the salaries of November 2023 as he
did not work at this time.
14. Bonus payments for sport results:
-
As to the bonus payments, the club disagreed with this claim and indicated that the
contract and additional agreement did not guarantee the payment to the player, the player
failed to provide additional evidence to proof his entitlement. i.e. report of the head coach
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REF. FPSD-13407
15. Late payment interest
-
The club agreed with the interest of 5%.
16. Compensation for unused Labor Leave
-
The club argued that this request does not find contractual basis.
17. Forum Shopping
-
-
-
-
The Club also inform Football Tribunal that the Player used "Forum Shopping" strategy by
lodging two claims before different competent deciding bodies with a view to obtain the
most advantageous possible outcome. This goes against the principle of electa una via, non
datur recursus ad alteram.
Because of to delays in the payment of wages, 160 Club's workers in October 2023 filed a
complaint with the State Institution Labor Inspectorate of the Akmola Region (hereinafter
referred to as the Inspectorate). As a result, the Inspectorate issued an order to pay wages
to 160 employees of the enterprise for a total amount.
Among these 160 workers there is the name of the Player - Ruslan Bolov and the amount
due to him for payment - 19 785 913 KZT.
Due to financial difficulties, the Club was unable to comply with the inspection order within
the allotted time and on January 8, 2024, the state bailiff initiated enforcement
proceedings to enforce the order. (Attachment 5) The Club's accounts and property were
banned.
As of February 15, 2024, due to absence of funding, the Club had not fulfilled this order.
The Player Mr. Ruslan Bolov is No. 124 in list of the Order.
The appeal to the Inspectorate, the inspection and the order were issued before the appeal
to the FIFA Football Tribunal. The player, in his claim sent to the Football Tribunal, asks for
wages for the same period that was checked by the Inspectorate - July, August, September
2023.
-
The player did not refuse to collect the amount of debt through the state bailiff.
The Player's appeal to the FIFA Football Tribunal (FIFA Football Tribunal) is nothing more
than an attempt to obtain the most beneficial decision for himself, which is contrary to the
legal principle of electa una via, non datur recursus ad alteram.
-
Based on the foregoing the claim of the Player is inadmissible.
18. In conclusion the request of relief of the club were the following:
-
Admit the Player's claim as inadmissible.
If the claim is accepted approve the debt owed to the player in the amount no more then
12 283 682,3 KZT
Determine the interest for late payments in the amount of no more than 5% per annum,
as required by Swiss law
pg. 5
REF. FPSD-13407
-
Reject all other Player's requirements
c.
Additional Comments of the player
19. The Claimant mentioned the following:
(a) “As was also already mentioned in the Claim the Club has miscalculated the amount of debt
towards the Player by not including in the calculation of the total amount due to the Player
during the Contract the following payments:
-
Salary for November 2023 in the amount of KZT 4,500,000 net;
Bonus payments for results in matches in 2022 and 2023 sports season which were stipulated
by the relevant annexes to the Contract;
1
Part of the salary for 10 days of work in November 2022 in the amount of KZT 1,500,000.
(b) Salary for November 2023
-
-
(c)
The Club sated that the salary for November 2023 shall not be paid to the Player as far as the
Player was absent from workplace during November 2023.
At the same time, as was already mentioned in the paras. 48-50 of the Claim the Player’s absence
at the Club’s premises in November 2023 was authorized by the Club itself and the Club did not
object to such an absence, e.g. demand the Player to return to the location of the Club.
Therefore, the Club shall pay to the Player a salary for November 2023 in the amount of KZT
4,500,000 net and this sum shall be included in the amount of payments which the Club should
have been made under the Contract while calculating the total due amount.
Bonus obliged to pay as per additional agreements.
(d) the Club is obliged to pay to the Player compensation for unused leave in the amount of KZT
9,116,140.70 net.
(e) Forum shopping
-
-
the State Labor Inspectorate is a supervisory body in the sphere of labor relations in the Republic
of Kazakhstan, but in no way a judicial body capable of resolving disputes.
Moreover, in accordance with para. 4 and para. 11 of art. 193 of the Code "In exercising state
control over compliance with the labor legislation of the Republic of Kazakhstan, state labor
inspectors have the right to issue instructions and conclusions binding on employers, as well as
to draw up protocols and resolutions on administrative offences, impose administrative
penalties, and send information, statements of claim and other material to the relevant law
enforcement agencies and courts”.
Thus, the State Labor Inspectorate of the Republic of Kazakhstan is not a forum for dispute
resolution – it is an administrative supervisory authority.
pg. 6
REF. FPSD-13407
-
Furthermore, the Player in any case has not initiated the abovementioned inspection and
enforcement procedure against the Club.
The Club has also not proved the Player's involvement in triggering the inspection procedure
Conversely, the abovementioned procedures have taken place not by the will of the Player and
the only reason for them is the Club’s violation of the employees’ rights, i.e., non-payment of
salaries and other payments which was found by the State Labor Inspector during the
inspection. “
20. In conclusion the Claimant reiterated his request for relief.
pg. 7
REF. FPSD-13407
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
21. 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 19 January
2024 and submitted for decision on 3 July 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.
22. 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 February 2024 edition), the Single Judge
is competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a Russian player and a Kazakh club.
23. 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 (February 2024 edition),
and considering that the present claim was lodged on 19 January 2024, the May 2023
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
24. The Single Judge acknowledged that the club, firstly, contested the competence of FIFA’s
deciding bodies on the basis that the player already brought the same claim before a
different institution i.e., the State Institution Labor Inspectorate of the Akmola Region in
Kazakhstan (Kazakhstan Inspectorate) prior to the lodgement of the claim at FIFA.
25. The Single Judge noted that in this regard the club indicated that the player together with
a group of 160 employees filed a claim before the Kazakhstan Inspectorate for “arrear
wages”, which instituted an order to pay, amongst others, the player the amount of KZT
19,785,913.
26. The Single Judge further noted that the player mentioned that the Kazakhstan Inspectorate
is a supervisory body in the sphere of labour relations in the Republic of Kazakhstan, but
not a judicial body capable of resolving dispute and that that he never “initiated the
abovementioned inspection and enforcement procedure against the club, additionally that the
club has also not proved the player's involvement in triggering the inspection procedure.”
27. In this context, the Single Judge was of the opinion that the player did not deny that the
order was issued or that he was part of the group of employees seeking restitution, he
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REF. FPSD-13407
merely indicated that he did not initiate or was involved in triggering the inspection, hence
did not deny active participation to the said proceedings at the Kazakhstan Inspectorate.
28. Moreover, the Single Judge indicated that the player did not object to the procedure at the
Kazakhstan Inspectorate, additionally it can be observed that the process did not happen
without his knowledge.
29. In continuation, the Single Judge duly observed that in October 2023, an order was already
issued by the Kazakhstan Inspectorate relating to a major portion of the outstanding
remuneration of the player in the total amount of KZT 19 785 913.
30. The Single Judge concluded that FIFA is not in a position to deal with the substance of a
matter which has already dealt with by another institution by passing a final and binding
decision on it i.e., outstanding remuneration until October 2023.
31. Taking the above into account, the Single Judge pointed out that the abovementioned
considerations suffice to determine that the Football Tribunal does not have jurisdiction to
decide over the requested remuneration dealt with under the said order except for the
outstanding remuneration claimed for the month of November 2023, which did not form
part of the initial proceedings at the Kazakhstan Inspectorate.
32. As to the outstanding remuneration request for the month of November 2023, the Single
Judge took note that the club argued that the player is not entitled to the said salary on
account that he was absent from the workplace during the month of November 2023.
33. In this regard, the Single Judge noted that the player argued that his absence was
authorized by the club itself and that the club allegedly did not object to such an absence.
34. The Single Judge noted that the player failed to provide any documentary evidence to
corroborate or proof that he was authorised by the club to be absent for the month of
November 2023, it seems that he therefore departed the club prior to expiry of his contract,
therefore the Single Judge decided to reject this part of the player’s claim.
b. Costs
35. 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 Chamber decided that no procedural costs were to be
imposed on the parties.
36. 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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REF. FPSD-13407
37. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
pg. 10
REF. FPSD-13407
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Ruslan Bolov, is rejected insofar it is admissible.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-13407
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
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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