Labour Disputes
Texto da decisão
REF FPSD-5193
Decision of the
Dispute Resolution Chamber
passed on 9 June 2022
regarding an employment-related dispute concerning the player Abdoulaye
Diakhate
COMPOSITION:
DE WEGER Frans (The Netherlands), Chairperson
COLUCCI Michele (Italy), member
RIESTRA Iñigo (Mexico), member
CLAIMANT:
Abdoulaye Diakhate, Senegal
Represented by Kasalo & Raic
RESPONDENT:
FC Ordabasy, Kazakhstan
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I. Facts of the case
1.
On 8 February 2021, the Senegalese player Abdoulaye Diakhate (hereinafter: the Claimant)
and the Kazakh club FC Ordabasy (hereinafter: the Respondent) concluded an employment
contract valid from until 30 November 2022 (hereinafter: the contract).
2.
Art 3.2 of the Contract reads inter alia as follows:
“The salary is issued to the Employee no later than the 25th day of the next month with tax
withholding and other obligatory payments and assignments according to the Legislation.”
3.
Art 7.3 of the Contract reads inter alia as follows:
7.3. The bases of the termination of the Employment contract are:
(…)
3) termination of the employment contract at the initiative of the Employer, while
compensation for the early termination of the employment contract cannot exceed two
monthly salaries of the Employee;
4.
Annex 1 of the Contract reads inter alia as follows:
“The Employer pays the Employee a monthly salary the amount of KZT 11,700,000”
(…)
“All payments which are due to the Employee and reflected in the text of this Appendix No.1 to
the Employment contract are specified taking into account tax withholding and other
obligatory payments provided by laws of the Republic of Kazakhstan (gross).”
5.
On 26 November 2021, the Claimant put the Respondent in default for the total amount
of KZT 83,947,500 a gave a deadline of 15 days to comply, to no avail.
6.
On 21 December 2021, the Claimant sent a notice of termination to the Respondent,
adducing just cause.
7.
On 13 February 2022, the Claimant signed a contract with the Kazakh club Turan valid
until 30 November 2022. The Claimant is entitled to a monthly salary of KZT 4,222,800.
II. Proceedings before FIFA
8.
On 18 February 2022, the Claimant filed the claim at hand before FIFA. A brief summary
of the position of the parties is detailed in continuation.
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a. Position of the Claimant
9.
The Claimant states that the Respondent had failed to pay its contractual obligations for
more than 8 months in the total of KZT 83,947,500.00.
10. The Claimant filed the following requests for relief
I. to ascertain that the Claimant terminated the Employment contract signed with the
Respondent with just cause; and
II. to condemn the Respondent to pay in favor of the Claimant contractual outstandings of KZT
103,573,306.00 which matured as follows:
- KZT 2,047,500.00, on 25/4/2021, and
- KZT 11,700,000.00, on 25/5/2021, and
- KZT 11,700,000.00, on 25/6/2021, and
- KZT 11,700,000.00, on 25/7/2021, and
- KZT 11,700,000.00, on 25/8/2021, and
- KZT 11,700,000.00, on 25/9/2021, and
- KZT 11,700,000.00, on 25/10/2021, and
- KZT 11,700,000.00, on 25/11/2021, and
- KZT 19,625,806.00, on 21/12/2021;
within 45 days as from the date of notification of the decision in the matter of the reference to
the Respondent; and
III. to condemn the Respondent to pay in favor of the Claimant compensation of KZT
132,474,194 which matured on 21/12/2021, while at the same time taking into account
provisions of Article 17. of FIFA RSTP, within 45 days as from the date of notification of the
decision in the present matter to the Respondent; and
IV. to condemn the Respondent to pay in favor of the Claimant default interest of 5% per year
on the aforementioned amounts starting from the respective date of maturity until the effective
date of the payment, within 45 days as from the date of notification of the decision in the
matter of the reference to the Respondent; and
V. to impose sporting sanctions against the Respondent, all in the light of FIFA RSTP.
b. Position of the Respondent
11. According to the Respondent, it had recently experienced serious financial difficulties due
to the coronavirus crisis, the decision of the Government of the Republic of Kazakhstan
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of reducing state funding in professional sports and a fine imposed on the Respondent
by the tax authorities.
12. The Respondent also stated that it “began a state lawsuit to apply a rehabilitation procedure
to the Club for further distribution of debts for the next 5 years”.
13. The Respondent admits it owes certain amounts to the Claimant although it stated that
the amount claimed is disputable and excessive.
14. According to the Respondent, it has made two payments to the Claimant since the
signature of the Contract for the salaries of February (prorata) and March 2021.
15. The Respondent also states that as per the terms of the Contract, the Claimant is entitled
to a salary of KZT 11,700,000 tenge (gross), which equates to KZT 10,530,000 tenge (net)
per month.
16. Based on the above, the Respondent recognizes wage arrears from April to December
2021 in the amount of KZT 100,620,000 (gross) according to the following schedule:
- 11,700,000 tenge for April 2021;
- 11,700,000 tenge for May 2021;
- 11,700,000 tenge for June 2021;
- 11,700,000 tenge for July 2021;
- 11,700,000 tenge for August 2021;
- 11,700,000 tenge for September 2021;
- 11,700,000 tenge for October 2021;
- 11,700,000 tenge for November 2021;
- 7,020,000 tenge for the period from 1 to 21 December 2021.
17. The Respondent states that the amount of compensation required by the Claimant is
“excessively huge and unaffordable” for the Respondent.
18. The Respondent further requests to “apply clause 7.2. of the Contract, according to which,
in case of unilateral termination of the Contract by the Club, compensation for unilateral
termination is equal to 3 (three) official salary of the Employee”.
c. Comments of the Claimant
19. The Claimant was requested to provide comments on the alleged payments by the
Respondent.
20. In this regard, the Claimant states that “the alleged payments made by the Club to the Player
with regards to his February and March 2021 salary are not related to the arrears from the
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Employment Contract, but to the arrears from the contract signed between the Parties before
the conclusion of the Employment Contract, i.e. the Player signed his first employment contract
with the Club in January 2016”.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
21. 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 18 February 2022 and
submitted for decision on 9 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.
22. 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.
b) of the Regulations on the Status and Transfer of Players (March 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
Senegalese player and a Kazakh club.
23. 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 edition), and
considering that the present claim was lodged on 18 February 2022, the August 2021
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
24. 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
25. 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
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acknowledging all the above-mentioned 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
26. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the parties strongly dispute the justice of the early
termination of the contract by the Claimant, based on the alleged non-payment of certain
financial obligations by the Respondent as per the contract, in accordance with art. 14bis
of the Regulations.
27. In this context, the Chamber acknowledged that its task was to determine, 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 formal pre-requisites of art. 14bis of
the Regulations had in fact been fulfilled.
28. The Chamber then referred to the wording of art. 14bis par. 1 of the Regulations, in
accordance with which, if a club unlawfully fails to pay a player at least two monthly
salaries on their due dates, the player will be deemed to have a just cause to terminate
his contract, provided that he has put the debtor club in default in writing and has granted
a deadline of at least 15 days for the debtor club to fully comply with its financial
obligation(s).
29. The Chamber noted that the Claimant claims not having received his remuneration
corresponding to 8 months. Furthermore, the Chamber noted that the Claimant has
provided written evidence of having put the Respondent in default on 26 November 2021,
i.e. more than 15 days before unilaterally terminating the contract on 21 December 2021.
30. The Chamber also noted that in the case at hand the Respondent bore the burden of
proving that it indeed complied with the financial terms of the contract concluded
between the parties. Nonetheless, the evidence provided by the Respondent, solely
proves the payments for the months February and March 2021.
31. Regarding the said payments, the Chamber referred itself to art. 13. Par 5 of the
Procedural Rules and deemed that the justification provided by the Claimant, that the
said amounts corresponded to a previous contract, had not been sufficiently
substantiated and therefore found that the said payments made by the Respondent shall
be taken into consideration for the purposes of calculating the amounts due.
32. Having stated the above, the DRC underlined that Respondent was still in default for the
salaries of April to November 2021, as also admitted by the Respondent.
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33. Thus, the Chamber concluded that the Claimant had a just cause to unilaterally terminate
the contract, based on art. 14bis of the Regulations.
ii. Consequences
34. 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.
35. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are equivalent to 9 monthly
salaries (April to December 2021) under the contract, amounting to KZT 105,300,000.
36. 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 105,300,000.
37. 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 respective due dates (the
25th day of the subsequent month) until the date of effective payment.
38. 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.
39. 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
established that no such compensation clause was included in the employment contract
at the basis of the matter at stake.
40. In this regard, the Chamber referred to the argument made by the Respondent to apply
art. 7.2 of the Contract. However, the DRC underlined that the termination of the Contract
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had undisputedly been executed by the Claimant and therefore the said clause was not
applicable to the matter at hand.
41. As a consequence, the members of the Chamber 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 Chamber recalled that
said provision provides for a non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable.
42. Bearing in mind the foregoing as well as the claim of the player, the Chamber 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 Chamber
concluded that the amount of KZT 128,700,000 (i.e. the salaries from January until
November 2022) serves as the basis for the determination of the amount of
compensation for breach of contract.
43. In continuation, the Chamber 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.
44. Indeed, the player found employment with the club Turan in February 2022. In
accordance with the pertinent employment contract, the player was entitled to KZT
4,222,800 per month. Therefore, the Chamber concluded that the player mitigated his
damages in the total amount of KZT 42,228,000, that is, 10 times KZT 4,222,800.
45. Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according
to which a player is entitled to an amount corresponding to three monthly salaries as
additional compensation should the termination of the employment contract at stake be
due to overdue payables. In the case at hand, the Chamber confirmed that the contract
termination took place due to said reason i.e. overdue payables by the club, and therefore
decided that the player shall receive additional compensation.
46. In this respect, the DRC decided to award the amount of additional compensation of USD
KZT 35,100,000, i.e. three times the monthly remuneration of the player.
47. 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 121,572,000 to the player (i.e. KZT 128,700,000 minus KZT 42,228,000 plus KZT
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35,100,000), which was to be considered a reasonable and justified amount of
compensation for breach of contract in the present matter.
48. 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 18 February 2022 until the date of effective
payment.
iii. Compliance with monetary decisions
49. Finally, taking into account the applicable Regulations, the Chamber 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.
50. The DRC noted that the Respondent had provided evidence of having filed a “rehabilitation
plan” at the local courts. However, the Chamber found that the Respondent had failed to
provide clear and concise evidence that it is legally unable to comply with this decision.
Thus, the DRC underlined that the consequences of art. 24 shall still be applied as
indicated below.
51. 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.
52. 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. 24 par. 2, 4, and 7 of the Regulations.
53. 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.
54. 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. 24 par. 8 of
the Regulations.
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d. Costs
55. 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.
56. 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.
57. Lastly, the DRC 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, Abdoulaye Diakhate, is partially accepted.
2.
The Respondent, FC Ordabasy, has to pay to the Claimant, the following amount(s):
- Kazakhstan Tenge (“KZT”) 105,300,000 as outstanding remuneration plus 5% interest p.a.
as follows:
On KZT 11,700,000 as from 25 May 2021 until the date of effective payment;
On KZT 11,700,000 as from 25 June 2021 until the date of effective payment;
On KZT 11,700,000 as from 25 July 2021 until the date of effective payment;
On KZT 11,700,000 as from 25 August 2021 until the date of effective payment;
On KZT 11,700,000 as from 25 September 2021 until the date of effective payment;
On KZT 11,700,000 as from 25 October 2021 until the date of effective payment;
On KZT 11,700,000 as from 25 November 2021 until the date of effective payment;
On KZT 11,700,000 as from 21 December 2021 until the date of effective payment;
On KZT 11,700,000 as from 21 December 2021 until the date of effective payment.
- KZT 121,572,000 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 18 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.
2.
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.
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.
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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).
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