Labour Disputes
Texto da decisão
REF FPSD-2480
Decision of the
Dispute Resolution Chamber
passed on 10 November 2021
regarding an employment-related dispute concerning the player
Magomed-Emi Said-Emievich Dzhabrailov
BY:
Clifford J. HENDEL (USA & France), Chairperson
Alejandro ATILIO TARABORELLI (Argentina), member
Stella MARIS JUNCOS (Argentina), member
CLAIMANT:
Magomed-Emi Said-Emievich Dzhabrailov, France
RESPONDENT:
FC Okzhetpes, Kazakhstan
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REF FPSD-2480
I.
Facts
1.
The parties concluded an employment contract valid as from 8 September 2020 until 9 November 2020.
2.
Following the contract, the player was entitled to the following:
“3. SALARY
3.1 The Employer establishes a monthly salary to the Employee in the amount of 941 200 (nine hundred forty-one
thousand two hundred) tenge.
3.2 The salary is paid via wire transfer in cash in the national currency of the Republic of Kazakhstan, at least once
a month, no later than the first decade of the next month.
(…)
2.4 All payments due to the Employee and stated in the text of this Employment Agreement are indicated not
taking into account taxes and other mandatory payments provided for by the legislation of the Republic of
Kazakhstan.
1.4 The Employer independently calculates, withholds and transfers taxes and other mandatory payments provided
for by the legislation of the Republic of Kazakhstan from the Employee’s income obtained during the period
of this Employment Agreement.”
3.
Art. 5.2 of the contract stipulated the following:
“The Club pay attention that on the point 5.2 of the contract: The Employer provides the Employee with the main
annual paid leave of 28 calendar days.”
4.
On 30 November 2020, the club issued a document with the following contents:
“Football Club Okzhetpes” guarantees to pay you,
Dzhabrailov Magomed-Emi Said-Emievich, the salaries payable as of November 30,
2020, until January 31, 2021.”
5.
6.
On 09 May 2021, the Claimant lodged a claim for outstanding remuneration and requested the payment of the
total amount of KZT 3,754,800:
- KZT 941,200 for the salary of September 2020;
- KZT 941,200 for the salary of October 2020;
- KZT 941,200 for the salary of November 2020;
- KZT 941,200 for “unused days of annual paid leave”
According to the player, the contract de facto expired on 30 November 2020.
7.
In its reply to the claim, the Respondent stated that “the debt of [the player] was repaid June 16,2021”.
8.
In this respect, the club attached a bank document dated 16.06.2021, reflecting a payment of KZT 2,560,539.
9.
In his replica, the player acknowledged having received the amount of KZT 2,560,539.
10.
However, the Claimant insisted to be paid with the following amounts:
“1. The salary debt is 263,061 (two hundred sixty-three thousand sixty-one) tenge, plus 5% per annum.
2. The amount of 68,450 tenge illegally withheld by the Defendant under the order of 275 bos dated 23.12.2020,
plus 5% per annum
3. Compensation for unused and not provided vacation in the amount of 941,200 (nine hundred forty-one
thousand two hundred) tenge plus a penalty of 5% per annum.
4. The amount of 500,000 tenge as compensation for moral damage.
5. The amount in the amount of 336,000 tenge as incurred expenses for attracting legal assistance.”
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REF FPSD-2480
11.
As final comments, the club indicated that the player only worked for 20 days in September 2020, and therefore
he was entitled only to KZT 724,000 for said month.
12.
The club further acknowledged that the player was entitled to KZT 941,200 for October and November 2020.
13.
As to the unused vacation, the club stated that, “as the contract expired November 30, 2020 the compensation of
unused leave was calculated for the 5 (five) days. The amount of gross compensation was 181 000 KZT ( 5 days *
3 6 200 KZT average daily earnings).”
14.
In the opinion of the club, given the length of the contract, the player cannot claim that he was entitled to 28
calendar days as leave, since “paying for annual leave in full for an employee who has worked for only three months
is absurd”.
15.
The club further stated that the player was subject to 10% income tax, and therefore it deducted the following
amounts:
• 72 400 KZT in September 2020;
• 94 120 KZT in October 2020;
• 94 120 KZT in November 2020;
• 18 100 KZT in December for the amount of compensation for unused leave.
16.
Therefore, the club considered that the player was entitled to the following net amounts:
651 600 KZT for September 2020
847 080 KZT for October 2020
847 080 KZT for November 2020
162 900 KZT for compensation for unused leave.
Total: KZT 2,508,660
17.
The club further rejected to pay moral damages or legal fees.
18.
The club wished to apologize for the delay in paying the wages.
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REF FPSD-2480
II. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
First of all, the Chamber (hereinafter also referred to as Chamber or DRC) analysed whether it was
competent to deal with the case at hand. 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.
2.
Subsequently, the Chamber referred to art. 2 par. 1 and art. 24 par. 1 lit. b) of the Procedural
Rules and observed that in accordance with art. 23 par. 1 in combination with art. 22 par. 1 lit.
b) of the Regulations on the Status and Transfer of Players (August 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 a French player and a
Kazakh club.
3.
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 (August 2021 edition), and considering the date
when the present claim was lodged, 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
4.
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
5.
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 acknowledging all the abovementioned 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
6.
In this respect, the Chamber noted that the parties concluded an employment contract valid as
from 8 September 2020 until 9 November 2020 with the condition stipulated in point I.3 above.
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REF FPSD-2480
7.
Subsequently, the Chamber noted that the Claimant lodged a claim for outstanding
remuneration and requested the payment of the total amount of KZT 3,754,800:
- KZT 941,200 for the salary of September 2020;
- KZT 941,200 for the salary of October 2020;
- KZT 941,200 for the salary of November 2020 (in particular, the player considered that the
contract de facto expired on 30 November 2020);
- KZT 941,200 for “unused days of annual paid leave.
8.
On the other hand, the Chamber took note of the Respondent’s position, according to which the
“debt”
was
“repaid
June
16,2021,
and
observed
that
it attached a bank document dated 16.06.2021, reflecting a payment of KZT 2,560,539.
The
Respondent further acknowledged that the player is entitled to his full salaries of October
and November 2020, but argued that it made a 10% deduction for income tax.
9.
In view of the above, the Chamber understood that the matter at stake fundamentally consists
in determining the amount of the debt of the Respondent towards the Claimant.
10. In this respect, and referring to the burden of proof, the Chamber observed that the Respondent
failed to support with sufficient evidence the legal basis for the alleged tax deduction. Therefore,
the Chamber decided to not take the Respondent’s argument in this regard.
11. Consequently, the Chamber established that the claimant is entitled to the amounts withheld by
the Respondent as alleged income tax, for a total amount of KZT 278,740, as follows:
72 400 KZT in September 2020;
94 120 KZT in October 2020;
94 120 KZT in November 2020;
18 100 KZT in December for the amount of compensation for unused leave.
12. Consequently, in strict application of the principle of pacta sunt servanda, the Dispute Resolution
Chamber established that the Respondent has to pay to the Claimant, the total outstanding
amount of KZT 278,740, as detailed above.
13. Moreover, taking into account the request of the Claimant as well as the longstanding
jurisprudence in this regard, the Dispute Resolution Chamber decided to award 5% interest p.a.
over said amount as from the due date.
ii.
Compliance with monetary decisions
14.
Finally, taking into account the applicable Regulations, the Chamber referred to art. 24 of the
Regulations, which stipulate that, with its decision, the pertinent FIFA deciding body shall also
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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.
15.
In this regard, the Chamber 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.
16.
Therefore, bearing in mind the above, the Chamber decided that the club must pay the full
amount due (including all applicable interest) to the player within 45 days of notification of the
decision, failing which, at the request of the creditor, 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 club in accordance with art. 24
of the Regulations.
17.
The club shall make full payment (including all applicable interest) to the bank account provided
by the player in the Bank Account Registration Form, which is attached to the present decision.
18.
The Chamber 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 of the
Regulations.
19.
As to the applicable procedural costs, 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.
20.
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.
21.
Lastly, the Chamber concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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REF FPSD-2480
III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Magomed-Emi Said-Emievich Dzhabrailov, is partially accepted.
2.
The Respondent, FC Okzhetpes, has to pay to the Claimant, the amount of KZT 278,740 as
outstanding remuneration, plus interest as follows:
-
5% interest p.a. over the amount of KZT 72,400 as from 1 October 2020 until the date of effective payment;
-
5% interest p.a. over the amount of KZT 94,120 as from 1 November 2020 until the date of effective payment;
-
5% interest p.a. over the amount of KZT 94,120 as from 1 December 2020 until the date of effective payment;
-
5% interest p.a. over the amount of KZT 18,100 as from 10 November 2020 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. 24bis of the Regulations on the Status and Transfer of Players (February 2021
edition), 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. 24bis par. 7 and 8 and art. 24ter of the Regulations on the Status and Transfer of
Players.
7. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF FPSD-2480
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).
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