DRC Overdue Payables
Texto da decisão
REF FPSD-5950
Decision of the
Dispute Resolution Chamber
passed on 6 July 2022
regarding an employment-related dispute concerning the player Alan
Chochiev
BY:
Jorge GUTIERREZ (Costa Rica)
CLAIMANT:
Alan Chochiev, Belarus
RESPONDENT:
Shakhter, Kazakhstan
Page 2
REF FPSD-5950
I.
1.
Facts of the case
On 6 May 2021, the Belarusian player Alan Chochiev (hereinafter: the Claimant) and the Kazakh
club Shakhter (hereinafter: the Respondent) concluded an employment contract (hereinafter: the
Contract) valid until 30 November 2021.
2.
On 16 November 2021, the Respondent issued a letter of guarantee (hereinafter: the Letter) which
states as follows:
“JSC FC Shakhter <…>, represented by its Executive director Urazaev E. Zh., guarantees to pay the bonus
for participation in the OLIMPBET Football Championship among the teams of the Premier League and
the Kazakhstan Football Cup in the amount of 1,881,250 (one million eight hundred eighty-one thousand
two hundred fifty) Tenge. I commit myself to pay this sum upon receipt of the sponsorship money to the
settlement account of the JSC until 20 February 2022. The bonus payment will be made by the Employer
via money transfer to your card account. We reserve the right to proceed with the payment earlier”.
3.
On 22 April 2022, the Claimant sent a default notice to the Respondent, requesting the amount of
KZT 1,881,250 and granted a deadline of 10 days to comply, to no avail.
II. Proceedings before FIFA
4.
On 5 May 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
5.
The Claimant states that as of 30 November 2021, the total amount of the Club’s debt was KZT
1,881,250 and the Club “unlawfully failed to pay the Player the bonus payment in the amount of KZT
1,881,250”.
6.
The Claimant filed the following requests for relief:
Taking the aforementioned into account, the Claimant, Alan Chochiev, hereby respectfully asks the FIFA
DRC to rule as follows:
1. The claim of the Claimant, Alan Chochiev, is accepted.
2. The Respondent, Football Club Shakhter, Kazakhstan, has to pay to the Claimant, Alan Chochiev, the
amount of KZT 1,881,250 net as outstanding payables plus 5% interest p.a. as from 1 December 2021
until the date of effective payment.
3. A sanction according to article 12bis of the FIFA Regulations on the Status and Transfer of Players is
imposed on the Respondent, Football Club Shakhter, Kazakhstan.
Page 3
REF FPSD-5950
b. Position of the Respondent
7.
The Respondent states that it has no overdue payables towards the Claimant.
8.
The Respondent submits that “[the Letter] serves more to indicate the intentions of the Club but is not
equated to an agreement and similar legally significant documents. Based on the wording of the Letter
of Guarantee, which contains a clause on the receipt of sponsorship funds, it can only be interpreted as
the Club's intention to pay a bonus, depending on the condition for the receipt of such funds to the
Club's settlement account.”
9.
The Respondent deems that “since any changes in the main document must be executed in the same
way that they were drawn up, since the contract itself indicates the ways in which it can be amended. If
there is no clause about a letter of guarantee, you cannot change the document using a letter. This once
again confirms that the Letter of Guarantee issued to the Player was only an expression of the Club's
intention and did not change the conditions of the Player's remuneration.”
10. The Respondent requests as follows:
Based on the foregoing, Respondent hereby requests FIFA DRC to decide:
1. To satisfy the claims of the Plaintiff, Alan Chochiev – refuse.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
11. 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 5 May 2022 and submitted for decision on 6 July 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.
12. 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
Belarusian player and a Kazakh club.
13. Subsequently, the Single Judge 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
Page 4
REF FPSD-5950
present claim was lodged on 5 May 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
14. 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
15. 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
16. 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.
17. 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.
18. 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.
19. 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 Letter.
20. 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
is held liable to pay the Claimant the outstanding amounts deriving from the contract concluded
between the parties and the Letter, namely KZT 1,881,250.
Page 5
REF FPSD-5950
21. 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. Art. 12 bis
22. In continuation, the Single Judge referred to art. 12bis par. 2 of the Regulations, which stipulates
that any club found to have delayed a due payment for more than 30 days without a prima facie
contractual basis may be sanctioned in accordance with art. 12bis par. 4 of the Regulations.
23. To this end, the Single Judge confirmed that the player put the club in default of payment of the
amounts sought, which had fallen due more than 30 days before, and granted the club a 10-day
deadline to cure such breach of contract.
24. Accordingly, the Single Judge confirmed that the club had delayed a due payment without a prima
facia contractual basis. It followed that the criteria enshrined in art. 12bis of the Regulations was
met in the case at hand.
25. The Single Judge further established that by virtue of art. 12bis par. 4 of the Regulations he has
competence to impose sanctions on the club. On account of the above and bearing in mind that
this is the 1st offense by the club within the last two years, the Single Judge decided to impose a
warning on the club in accordance with art. 12bis par. 4 lit. a) of the Regulations.
26. In this connection, the Single Judge highlighted that a repeated offence will be considered as an
aggravating circumstance and lead to a more severe penalty in accordance with art. 12bis par. 6
of the Regulations.
iii. Compliance with monetary decisions
27. 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.
28. 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.
29. 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,
Page 6
REF FPSD-5950
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.
30. 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.
31. 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
32. 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.
33. 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.
34. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
Page 7
REF FPSD-5950
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Alan Chochiev, is partially accepted.
2.
The Respondent, Shakhter, has to pay to the Claimant, the following amount(s):
- KZT 1,881,250 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.
8.
A warning is imposed on the Respondent.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
Page 8
REF FPSD-5950
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
Page 9