Labour Disputes
Texto da decisão
REF FPSD-2421
Decision of the
Dispute Resolution Chamber (DRC) judge
passed on 11 August 2021
regarding an employment-related dispute concerning the player Plamen Dimov
BY:
Stijn Boeykens (Belgium), DRC Judge
CLAIMANT:
Plamen Dimov, Bulgaria
Represented by Georgi Gradev & Marton Kiss
RESPONDENT:
Okzhetpes, Kazakhstan
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REF FPSD-2421
I.
FACTS OF THE CASE
1.
On 15 January 2020, the Bulgarian player, Plamen Dimov (hereinafter: Claimant or player),
and the Kazakh club, FC Okzhetpes (hereinafter: Respondent or club) concluded an
employment contract (hereinafter: contract) valid as from the date of signature until 9
November 2020.
2.
Pursuant to art. 3.1 of the contract, the Claimant was entitled to a monthly salary of KZT
5,335,500.
3.
On 3 November 2020, the parties concluded an additional agreement in terms of which the
duration of the contract was extended to 1 December 2020.
4.
A document issued by the Respondent confirmed that the contract of the player expired on
30 November 2020 is available in TMS.
5.
On 15 April 2021, the Claimant sent a default notice to the Respondent to pay the
outstanding amount of KZT 21,001,762 (i.e. 10.5 x KZT 5,333,500 = KZT 56,001,750 as
the total amount due for wages from 15 January to 1 December 2020 minus KZT
34,999,988 as the total sum received for salaries during the same period) , granting it a
deadline of 11 days to comply, however to no avail.
II.
PROCEEDINGS BEFORE FIFA
6.
On 1 May 2021, the Claimant filed the claim at hand before FIFA.
a.
The claim of the Claimant
7.
According to the Claimant, the Respondent had to pay the Claimant for the period, 15
January to 1 December 2020 the total amount of KZT 56,001,750, however the Respondent
only made the following payments in the total amount of KZT 34,999,98:
a)
b)
c)
d)
e)
f)
g)
h)
KZT 2,600,000 on 3 April 2020;
KZT 8,399,988 on 5 May 2020;
KZT 4,800,000 on 10 June 2020;
KZT 4,800,000 on 21 July 2020;
KZT 2,112,000 on 25 August 2020;
KZT 2,688,000 on 25 August 2020;
KZT 4,800,000 on 10 September 2020;
KZT 4,800,000 on 8 October 2020.
8.
The requests for relief of the Claimant, were that the Respondent pay the amount of KZT
21,001,762 net as outstanding remuneration, plus 5% interest p.a. as from the respective
due dates, as follows:
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REF FPSD-2421
on the amount of KZT 5,001,262 net as of 10 September 2020;
on the amount of KZT 5,333,500 net, as of 10 October 2020;
on the amount of KZT 5,333,500 net, as of 10 November 2020;
on the amount of KZT 5,333,500 net, as of 1 December 2020.
9.
Additionally the Claimant requested that sanctions based on art.12bis to be imposed on
the Respondent.
b.
10.
Position of the Respondent
In its reply to the claim, the Respondent acknowledged a debt to the Claimant of KZT
7,306,490 and stipulated the following:
“The Player mislead and keep silent the next facts:
1.
2.
3.
In July 15, 2020 the club pay him 800 000 KZT
In October 16, 2020 the Club pay to the Player 3 000 000 KZT
So the total payment that Club pay to the player is 38 799 988 KZT.”
11.
The Respondent indicated that on 15 March 2020, the Republic of Kazakhstan issued a
decree, by means of which a state of emergency in view of the COVID-19 pandemic was
declared.
12.
Furthermore, on 16 March 2020, the Respondent suspended all its activities including that
of the main team and on 18 March 2020, the Professional League of Kazakhstan
recommended clubs to stop all training.
13.
Moreover, the club explained that the Claimant’s remuneration was reduced by 50% during
the following periods 16 March to 31 May 2020 and 4 July to 8 August 2020, on the basis
of the “legislation of the Republic of Kazakhstan, contracts (point 3 .8), [and] the economic
situation of the club”.
14.
The Respondent argued that the decrease of 50% of the salary was equal for all its
employees.
15.
The Respondent confirmed that it would pay to the Claimant the amount of KZT 7,306,490
by no later than 30 August 2021.
c.
16.
Additional comments of the Claimant
On 7 June 2021, the Claimant acknowledged the payments made by the Respondent as
indicated in its reply, and accordingly amended its relief as follows:
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REF FPSD-2421
(a) The Respondent pay to the Claimant the amount of KZT 17,201,762 net as outstanding
remuneration, plus 5% interest p.a. as from the respective due dates, as follows:
on the amount of KZT 1,201,262 net, as of 10 September 2020,
on the amount of KZT 5,333,500 net, as of 10 October 2020,
on the amount of KZT 5,333,500 net, as of 10 November 2020, and
on the amount of KZT 5,333,500 net, as of 1 December 2020
d.
17.
Additional Comments of the Respondent
The Claimant’s amended relief request was submitted to the Respondent and the
Respondent indicated the following:
“(a)
There were some publications of the sports web-sites about the FC Okzhetpes
downtime and the payable of 50% of salary in that period;
(b)
At the March 13, 2020 the group of workers initiated the addition to the Collective
agreement and improve the position of employees in comparison with the terms of
employment agreement where the point 3.8 allowed that the wage can be reduced
to a minimum salary ( 42 500 KZT);
(c)
There was the inspection of FC Okzhetpes by the State institution "Office of Labor
Inspection of Akmola region" during the period of May 21 till June 1, 2021. Act on
verification results no. 243/6 dated June 1, 2021. The State institution "Office of
Labor Inspection of Akmola region'' did not found violations in payable of 50% of
salary during downtime period: "According to timesheets of March, April, May and
July the periods from March 16 to March 31,from April 01 to April 30, from May
01 to May 31, from July 04 to July 31 denoted as downtime for reasons beyond
the control of the employer and the employee. During the indicated periods,
.footballers and coaches did not carry out their professional activities; the Football
Club did not function. No changes in working conditions have been established.
Downtime is a temporary suspension of work due to economic, technological,
organizational, other production or natural reasons. The training process was
resumed.from August 2020 by order of the employer No. 73a old dated August
07, 2020. An addition to the collective agreement of the State utility company on
the right of economic management "Okzhetpes" Football club dated March 13,
2020 established the payment terms for downtime for reasons beyond the control
of the employer and the employee in the amount of 50% of the employee's wages
for all specialists. Professional football players, coaching staff etc. These additions
improve the position of employees in comparison with the terms of employment
agreement, the fulfillment of the terms of the collective agreement is obligatory for
the parties.”
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III.
CONSIDERATIONS OF THE DRC JUDGE
a.
Competence and applicable legal framework
18.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC Judge)
analysed whether it was competent to deal with the case at hand. In this respect, it took
note that the present matter was submitted to FIFA on 1 May 2021 and presented for
decision on 11 August 2021. Taking into account the wording of art. 21 of the January
2021 edition of the Rules Governing the Procedures of the Players’ Status Committee and
the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned
edition of the Procedural Rules is applicable to the matter at hand.
19.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules
and observed that in accordance with art. 24 par. 1 and par. 2 in combination with art. 22
lit. b) of the Regulations on the Status and Transfer of Players (February 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 an Bulgarian
player and a Kazakh club.
20.
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 (February 2021 edition), and
considering that the present claim was lodged on 1 May 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
21.
The DRC Judge recalled the basic principle of burden of proof, as stipulated in art. 12
par. 3 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 DRC Judge stressed
the wording of art. 12 par. 4 of the Procedural Rules, pursuant to which he may consider
evidence not filed by the parties.
22.
In this respect, the DRC Judge also recalled that in accordance with art. 6 par. 3 of Annexe
3 of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence generated
or contained in TMS.
c.
23.
Merits of the dispute
The competence of the DRC Judge and the applicable regulations having been established,
the DRC Judge entered into the merits of the dispute. In this respect, the DRC Judge started
by acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC Judge emphasised that in the following
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considerations he 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
24.
The foregoing having been established, the DRC Judge moved to the substance of the
matter, and took note of the fact that the parties on 15 January 2020, concluded an
employment contract valid as from the date of signature until 9 November 2020 by means
of which the Claimant was entitled to a monthly salary of KZT 5,335,500 net.
25.
In this context, the DRC Judge observed that the Claimant lodged a claim against the
Respondent, by means of which he requested payment of the amount of KZT 17,201,762
net as outstanding remuneration, plus 5% interest p.a. as from the respective due dates,
as follows:
on the amount of KZT 1,201,262 net, as of 10 September 2020,
on the amount of KZT 5,333,500 net, as of 10 October 2020,
on the amount of KZT 5,333,500 net, as of 10 November 2020, and
on the amount of KZT 5,333,500 net, as of 1 December 2020
26.
On the other hand, the DRC Judge noted the position of the Respondent, who
acknowledged a debt of KZT 7,306,490 , while noting that the Claimant’s remuneration
was reduced by 50% within the context of the outbreak of the COVID-19 pandemic and
during the following periods - 16 March to 31 May 2020 and 4 July to 8 August 2020 - in
line with “the legislation of the Republic of Kazakhstan, contracts (point 3 .8), [and] the
economic situation of the club”.
27.
In this context, the DRC Judge acknowledged that its task was to determine whether the
Respondent could validly reduce the Claimant’s salary between the aforementioned
periods.
28.
Having said that, the DRC Judge wished to refer to the fact that, in light of the worldwide
COVID-19 outbreak, FIFA issued a set of guidelines, the COVID-19 Guidelines, which aim
at providing appropriate guidance and recommendations to member associations and their
stakeholders, to both mitigate the consequences of disruptions caused by COVID-19 and
ensure that any response is harmonised in the common interest. Moreover, on 11 June
2020, FIFA has issued an additional document, referred to as FIFA COVID-19 FAQ, which
provides clarification about the most relevant questions in connection with the regulatory
consequences of the COVID-19 outbreak and identifies solutions for new regulatory
matters.
29.
With this framework in mind, the Chamber noted that, based on the contents of the FIFA
COVID-19 Guidelines and the FIFA COVID-19 FAQ, FIFA did not declare that, the
COVID-19 outbreak as a force majeure situation in any specific country or territory, or
that any specific employment or transfer agreement was impacted by the concept of force
majeure.
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In other words, in any given dispute, it is for a party invoking force majeure to establish the
existence of said event under the applicable law/rules as well as the consequences that
derive in connection thereto. The analysis of whether a situation of force majeure existed
has to be considered on a case by-case basis, taking into account all the relevant
circumstances.
30.
According to the FIFA COVID-19 Guidelines, unilateral decisions to vary the terms of an
agreement are allowed if they are made in line with national law or permissible within the
CBA structures. . Thus, if the parties involved cannot reach an amicable settlement, or the
issue is not addressed in national law and CBA’s with a players’ union are not an option, a
variation to the contract can only be allowed if it is made in good faith, are reasonable and
proportionate.
31.
The DRC Judge noted that in the matter at hand, it appears that in a meeting held on 13
March 2020, the Respondent made an attempt to find a solution with its employees
regarding the salary reduction and that the outcome of the said meeting was to supplement
the collective agreement, inter alia, with the following content:
“The payment terms for downtime for reasons beyond the control of the employer and the
employee are set at 50% of the employee’s salary for all specialists, professional footballers,
coaching staff of the main football team, the Second League team, the “Okzhetpes”
football center, the women’s football team, futsal teams.”
32.
In this context, the Respondent submitted satisfactory documentary evidence, on the basis
of which the DRC judge was comfortable in concluding that the aforementioned meeting
indeed took place and that the 50% reduction of its players’ salaries was approved.
33.
However, the DRC Judge further noted that the Claimant was never notified or informed
of the proposed reduction to his salary, which was further confirmed by the report of the
State institution “Office of Labor Inspection of Akmola region” during their inspection at
the Respondent on 1 June 2021. In said report, the Labor Inspection highlighted the
following violations of the national law of Kazakhstan of the Respondent:
“violation of sub-clause 5 clause 2 of article 115 of the Labor Code of the Republic of
Kazakhstan, there is no written notification and written consent of employees to
deductions; and
the employer did not provide the applicants with notifications about the components of
wages, deductions made and the amount to be paid (clause 2 of Article 113 of the Labor
Code of the Republic of Kazakhstan)”
34.
Moreover, the DRC Judge observed that - even though the Respondent, based on the
amendments to the Collective Agreement, could in principle validly reduce the salary of the
Claimant - it failed to inform or notify the Claimant of the proposed reduction, which was
also to be considered a violation of the national law applicable in Kazakhstan. As such,
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the DRC Judge concluded that the Respondent had not sufficiently demonstrated that
the variation to the Claimant’s contract was made in line with national legislation.
35.
In view of all the above, the DRC Judge established that the Respondent could not validly
justify the unilateral variation of the contract, and therefore it shall remunerate the
Claimant as agreed in the contract.
ii. Consequences
36.
Having stated the above, the members of the DRC Judge concurred that the Respondent
must fulfil its obligations in accordance with the general legal principle of “pacta
sunt servanda”.
37.
Consequently, the DRC Judge decided that the Respondent is liable to pay to the Claimant
his outstanding remuneration, in the amount of net KZT 17,201,762.
38.
Furthermore, based on its well-established jurisprudence as well as taking into account the
Claimant’s request, the Chamber decided to award 5% interest p.a. on the above amount
from the respective due dates until the date of effective payment.
39.
The DRC Judge concluded his deliberations in the present matter by establishing that any
further claim lodged by the Claimant is rejected.
iii. Compliance with monetary decisions
40.
Finally, the DRC Judge referred to par. 1 lit. and 2 of art. 24bis 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.
41.
In this regard, the DRC 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.
42.
Therefore, bearing in mind the above, the DRC 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. 24bis par. 2, 4, and 7 of the Regulations.
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43.
The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Registration Form, which is attached to the
present decision.
44.
The DRC 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. 24bis
par. 8 of the Regulations.
d.
Costs
45.
The DRC Judge referred to article 18 par. 2 of the Procedural Rules, according to which
“DRC proceedings relating to disputes between clubs and players in relation to the
maintenance of contractual stability as well as international employment related disputes
between a club and a player are free of charge”. Accordingly, the DRC Judge decided that
no procedural costs were to be imposed on the parties.
46.
Likewise and for the sake of completeness, the DRC Judge recalled the contents of art. 18
par. 4 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
47.
Lastly, the DRC Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
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IV.
DECISION OF THE DRC JUDGE
1.
The claim of the Claimant, Plamen Dimov, is partially accepted.
2.
The Respondent, Okzhetpes, has to pay to the Claimant, the following amount:
-
-
net KZT 17,201,762 as outstanding remuneration, plus 5% interest p.a. as from
the respective due dates, as follows:
-
net KZT 4,201,262, as from 11 September 2020;
net KZT 5,333,500, as from11 October 2020;
net KZT 2,333,500, as from 11 November 2020; and
net KZT 5,333,500, as from 1 December 2020
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account set out in
the enclosed Bank Account Registration Form.
5.
Pursuant to article 24bis of the Regulations on the Status and Transfer of Players if full
payment (including all applicable interest) is not paid 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 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
paid by the end of the of the three entire and consecutive registration periods.
6.
The consequences shall only be enforced at the request of the Claimant in accordance
with article 24bis paragraphs 7 and 8 and article 24ter of the Regulations on the Status and
Transfer of Players.
7.
This decision is rendered without costs.
For the DRC Judge:
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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