Labour Disputes
Texto da decisão
REF. FPSD-13379
Decision of the
Dispute Resolution Chamber
passed on 08 August 2024
regarding an employment-related dispute concerning
the player Anyuta Galstyan
BY:
Clifford J. HENDEL (USA), Deputy Chairperson
Calum BEATTIE (Scotland), Member
Roy VERMEER (the Netherlands), Member
CLAIMANT:
Anyuta Galstyan, Armenia
Represented by Victor Targino de Araujo
RESPONDENT:
Okzhetpes, Kazakhstan
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REF. FPSD-13379
I. Facts of the case
1.
On 11 April 2023, the Armenian player, Anyuta Galstyan (hereinafter: Claimant or player)
and Okzhetpes (hereinafter: club or Respondent) concluded an employment contract
(hereinafter: contract) valid as from 11 April until 11 October 2023.
2.
In accordance with the employment contract, the Respondent undertook to pay to the
Claimant inter alia a monthly salary of KZT 290,000.
3.
Moreover, art. 9 of the Contract stipulated as follows:
“9.1. All issues arising in the course of execution of this employment contract will be resolved by
the parties through negotiations.
9.2. The parties have agreed that any disputes arising from or related to this employment
contract are subject to pre-trial settlement in the legal bodies of the KFF in accordance with the
procedure provided for by the Disciplinary Regulations KFF.
9.3. If the dispute between the parties is not resolved during negotiations and/or in the legal
bodies of the KFF, then it is subject to consideration in accordance with the Code.”
4.
On 6 October 2023, during a match the player suffered an injury to her left knee. In her
words, such injury led to “having to leave the pitch for treatment. The referee’s match report is
herein enclosed, in which the Player is indicated with number 14.”
5.
On 10 October 2023, the player, allegedly at her own expense, underwent “MRI (magnetic
resonance imaging) scan and its conclusion stated that the player had rupture of the medial
meniscus of the left knee joint, partial damage to the anterior cruciate ligament, and synovitis,
with direct recommendation to consult a specialist.”
6.
The club then requested the player to sign a document, exclusively in Russian language,
which the player refused to sign.
7.
On 11 October 2023, the player signed a document, which stipulated the following:
“In accordance with the Article 61 of the Labor Code of the Republic of Kazakhstan dated from
November 23, 2015 No. 414-V LRK (Law of the Republic of Kazakhstan), I CHARGE: 1. To terminate
on October 11 2023 the employment contract No. 55 dated April 11, 2023 with the progessional
football player of the women’s football team “Okzhetpes” Galstyan Anyuta based on the
subparagraph 2) of Article 49 and paragraph 1 Article 51 of the Labor Code of the Republic of
Kazakhstan dated November 23, 2015 No. 414-V (Law of the Republic of Kazakhstan) expiration
of the employment contract. 2. The Accounting Department should calculate any pay
compensation to Galstyan A. for unused days of annual leave upon termination of the
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REF. FPSD-13379
employment contract for the worked period from 11.04.2023 to 11.10.2023 at the rate of 13
calendar (11 working) days.
Cause: clause 10,1 of Article 10 of the Employment Contract dated 11.04.2023 No. 55.”
8.
On 7 December 2023, the player was admitted to the Hospital in Yerevan, and had an
arthroscopic surgery on 11 December 2023.
II. Proceedings before FIFA
9.
On 16 January 2024, the Claimant filed the claim at hand before FIFA. A summary of the
parties’ position is set out below.
a. Position of the Claimant
10. The Claimant argued that the club failed to provide her with adequate medical support
following her injury, which was suffered during the course of her employment, thus issuing
the following arguments / request for relief:
a) To declare null and void the contractual termination order issued by the club on 11 October
2023 due to the occupational injury deriving from a work-related accident which caused
temporarily disability to the player to exercise her profession.
b) To declare the termination of the Contract with just cause by Club’s breach, under articles
14.2 and 17.1 of FIFA RSTP from 14 October 2023, date when the Player travelled to Armenia
with the flight tickets issued by the Club.
c) As a reflect from the declarations above: to condemn the Club to pay 3 (three) working day
wages from 11 October to 14 October 2023; KZT 29,000 (twenty-nine thousand Tenge)
d) Under the clauses 2.1.6 and 5.2 of the Contract (annual leave): to condemn the Club to pay
14,23 days of annual leave, as provided by clauses 2.1.6 and 5.2 of the Contract KZT 137,556
(one hundred thirty-seven thousand five hundred fifty-six Tenge)
e) As emerging material damage (reimbursement of expense): to condemn the club to
reimburse to the player the net amount of KZT 54,805 (fifty-four thousand eight hundred and
five Tenge), as material damages, to cover the treatment expenses regarding the knee injury,
as per the evidence A-6 (pharmacy receipt).
f) Under the clauses 2.1.8 and 2.1.10 of the Contract (material compensation for damages to
health in connection to the work, plus the lack of insurance): to condemn the Club to
indemnify the Player for material losses and damages regarding the injury, the temporarily
disability and the breach of the Contract, equal to the salaries between the date of
termination and the date projected to her full rehabilitation, accordingly to the medical
report (14 October 2023, date of termination hereby claimed, to 14 September 2024 latest
date projected to recovery); KZT 3,190,000.00 (three million one hundred ninety thousand
Tenge);
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REF. FPSD-13379
g) Under the clauses 2.1.9, 2.1.11 and 6 of the Contract (social allowance and guarantees): to
condemn the Club to pay the player the social allowance and guarantees regarding the
clauses 2.1.9 and 6 of the Contract, as well as the article 133 of the Kazakhstan Labor Code,
equal to 100% (one hundred percent) of the salaries between the date of the injury (06
October 2023) and the date of her expected full rehabilitation (14 September 2024),
accordingly to the medical report; KZT 3,267,333.33 (three million two hundred sixty seven
thousand three hundred thirty three Tenge and thirty three cents);
h) In addition, as moral damages: to condemns the Club to indemnify the Player, per moral
damages, the amount equal to four salaries, which equals to KZT 1,160,000 (one million one
hundred and sixty thousand Tenge).
66. (…) the decision rendered shall order the Club to bear all the procedural costs, if any, and to
pay annual interests of 5% over all claimed amounts applied, since the date claimed for the
termination of the Contract (14 October 2023(, except for the material reimbursement (point
“e” above), which interests shall begin in the date of the latest expenditure (10 October 2023)
and for the social allowance (point “g” above), which start date shall be the date of the injury
(06 October 2023).
b. Position of the Respondent
11. The Respondent firstly wished to point out that the Claimant, contrary to the obligations
set out in the Contract, failed to reach out to it in order to resolve the dispute amicably.
12. Furthermore, the Respondent asserted that it had paid a total amount of KZT 1,577,692.91,
corroborating that it had complied with all of its financial obligations during the Contract.
13. As to the injury, the Respondent argued that it provided adequate medical assistance, since
doctors made a preliminary diagnosis at the scene of the injury, and subsequently offered
her a medical treatment in Kazakhstan, which was rejected by the Claimant, who then
travelled to Armenia for her operation and rehabilitation.
14. Thus, the Respondent understood that it had not been in breach of its obligations and thus
requested for the claim to be rejected.
c. Additional comments of the Claimant on the payment documents
15. The Claimant provided the following additional comments in respect of the payment proofs
provided by the Respondent:
(a) “the amounts detailed in the point 5 of the Response, and in the Attachment 2, correspond
to the monthly wages due to the Player (from April 11 to October 11, 2023), plus the amount
of 89,992 KZT in concept of annual leave, as confirmed by the Club.
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REF. FPSD-13379
(b) It is important to highlight that this is a 6-month contract, and the 10 (ten) days of unpaid
license granted by the Club in May (Attachment 3) shall not affect the Player’s rights to
receive her contractual annual leave.
(c) In addition, observing the Response and despite the partial payment of 89,992 KZT, the
annual leave was incorrectly calculated. If the contract had lawfully expired on October 11,
and considering the net salary indicated by the Club (KZT 261,000), the Player would be
entitled to receive 14 days of paid annual leave (equal to 6 months):
-
1 year – 28 days of annual leave;
-
6 months – 14 days of annual leave.
-
Gross due amount: KZT 135,333.33
-
Net due amount: KZT 121,800 – if expired on October 11, 2023.
-
Overdue difference (net): KZT 31,808.00 – if expired on October 11, 2023.
(d) Following the arguments of the claim, if the contractual term is recognized as of October 14,
2023, the calculations are:
-
1 year – 28 days of annual leave;
-
6,1 months – 14,23 days of annual leave.
-
Gross due amount: KZT 137,556.00 – as claimed in point 65.d Net
due amount: KZT 123,801 – if expired in October 14, 2023.
-
Overdue difference (net): KZT 33,809.00 – if expired on October
14, 2023.
In this sense, the Player recognizes the receipt of net 89,992 KZT (eighty nine thousand nine
hundred ninety-two Kazakhstani Tenge) as a partial payment of the annual leave. However, the
claim for the difference persists, under the point 65.d, which is now calculated as KZT 33,809
(net), if the contract expires in October 14, 2023; or, subsidiarily, as of KZT 31,808 (net), only if
the claim under 65.a and 65.b is not accepted, which is, venia concessa, unexpected.”
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REF. FPSD-13379
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
16. First of all, the Dispute Resolution Chamber (hereinafter: the 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 16 January 2024 and submitted for decision
on 8 August 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.
17. Furthermore, 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 par. 1 lit. b) of the
Regulations on the Status and Transfer of Players (June 2024 edition), the Dispute
Resolution Chamber is – in principle – competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension between an
Armenian player and a Kazakh club.
18. The Chamber was able to note that the Respondent pointed to the alleged violation of the
Claimant of art. 9.1 of the Contract by lodging the present claim. Such clause read that:
“9.1. All issues arising in the course of execution of this employment contract will be resolved by
the parties through negotiations.
9.2. The parties have agreed that any disputes arising from or related to this employment
contract are subject to pre-trial settlement in the legal bodies of the KFF in accordance with the
procedure provided for by the Disciplinary Regulations KFF.
9.3. If the dispute between the parties is not resolved during negotiations and/or in the legal
bodies of the KFF, then it is subject to consideration in accordance with the Code.”
19. Equally, the Chamber referred to art. 22 par. 1 lit. b) of the Regulations on the Status and
Transfer of Players, pursuant to which FIFA is competent to hear:
“employment-related disputes between a club and a player of an international dimension; the
aforementioned parties may, however, explicitly opt in writing for such disputes to be decided
by a national dispute resolution chamber (NDRC), or a national dispute resolution body
operating under an equivalent name, that has been officially recognised by FIFA in accordance
with the National Dispute Resolution Chamber Recognition Principles. Any such jurisdiction
clause must be exclusive and included either directly in the contract or in a collective bargaining
agreement applicable to the parties”.
20. Having analysed art. 9.1 in the context of art. 22 par. 1 lit. b) of the Regulations on the Status
and Transfer of Players, the Chamber was of the opinion that the aforementioned clause
did not, in fact, relate to the potential jurisdiction over a dispute arising out of the Contract,
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REF. FPSD-13379
but rather merely requiring the engagement of the parties in amicable settlement
negotiations.
21. In short, the Chamber understood that FIFA is competent to deal with the present dispute.
22. 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 (June 2024 edition), and
considering that the present claim was lodged on 16 January 2024, the May 2023 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
23. 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
24. Having established the competence and the applicable regulations, the Chamber entered
into the merits of the dispute. In this respect, the Chamber started by 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
assessing the matter at hand.
i. Main legal discussion and considerations
25. The Chamber then moved to the substance of the matter, and took note of the fact that
the parties strongly dispute whether the Respondent had complied with its contractual
duties in respect of the provision of medical assistance and further obligations arising from
the Claimant’s injury during the course of the Contract.
26. In this context, the Chamber acknowledged that it its task was to determine the extent to
which the Claimant was first of all entitled to assistance from the Respondent within the
scope of the employment agreement at stake, and further whether the Respondent – if at
all – justifiably refused to support the former in this respect.
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REF. FPSD-13379
27. Prior to entering such analysis, the Chamber recalled the parties’ submissions, starting with
the Claimant, who argued that the termination notice issued by the club on
11 October 2023, should be declared null and void as the club actually terminated the
contract due to the injury the player suffered.
28. Contrastingly, the club on its account argued that it offered to support the player with
medical treatment/rehabilitation following her injury on 6 October 2023, however the
player refused same and signed the termination notice on 11 October 2023 (which
coincided with the original contractual expiration date).
29. Having set out the above, the Chamber went on to consider the case as to its merits, and
was able to recall firstly that the Respondent failed to provide any evidence of having
provided any substantial medical assistance following the Claimant’s injury.
30. Furthermore, the Chamber noted that the Claimant provided proof of having incurred
medical expenses as a result of the injury she suffered during the course of her
employment, in the shape of the pharmacy invoice under Annexe A-6 to the claim.
31. Consequently, in any event, the Chamber was satisfied that the Claimant should be entitled
to a reimbursement of the costs submitted based on the receipt in the amount of
KZT 54,805.
32. Regarding the annual paid leave, the Chamber noted that there was a clear contractual
basis to claim such amount. Based thereupon, the Claimant initially requested an amount
of KZT 129,000, of which during the course of the proceedings KZT 89,992 were
acknowledged as having been remitted.
33. Consequently, the Chamber held that the remaining amount of KZT 31,808 shall be
awarded to the Claimant as an overdue payable.
34. However, beyond this, the Chamber faced difficulties supporting the remaining claims of
the player based on the evidence submitted to the file.
35. In respect of the claimed salaries beyond 11 October 2023, the Chamber noted that the
original term thereof was 11 October 2023, and that there appeared to be no formal
extension of the Contract (until 14 October 2023 or beyond) on file which would render the
termination letter alluded to by the Claimant anything more than a formality.
36. Consequently, the Chamber understood that no outstanding salaries were payable in the
case at hand.
37. As for the “material compensation for damages to health” and “social allowance and
guarantees”, the majority of the Chamber opined that these requests not only lacked a
contractual basis, but further were unsubstantiated by evidence to the extent of proving
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REF. FPSD-13379
that the Claimant had incurred the damages claimed which would entitle her to a
reimbursement.
38. In particular, the majority of the Chamber considered that, based on the substantial
amount requested in this respect, the speculative nature of the request based on an
estimated date of “full recovery” and lack of clarity as to how such amount was to be
calculated, the burden of proving her entitlement to a reimbursement of “material
compensation” and “social guarantees” was not met by the Claimant.
39. The Chamber equally pointed out that the provisions of Kazakh Labour Law were not
applicable in the case at hand, since, per point 22 supra, the merits of the present dispute
were to be analysed in accordance with the regulatory framework of FIFA.
40. Lastly, as to the request for moral damages, the Chamber opined that this claim should be
rejected due to a lack of a regulatory basis, and due to the subjective nature upon which
such kind of compensation would be calculated.
41. In conclusion, the Chamber decided that, in accordance with pacta sunt servanda, only the
following amounts should be awarded, in addition to interest as per the Claimant’s request
for relief and the jurisprudence of the Football Tribunal:
-
KZT 31,808 as outstanding amount plus 5% interest p.a. as from 12 October 2023 until
the date of effective payment;
-
KZT 54,805 as outstanding amount plus 5% interest p.a. as from 12 October 2023 until
the date of effective payment.
ii. Compliance with monetary decisions
42. 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.
43. 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.
44. 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
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REF. FPSD-13379
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.
45. 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.
46. 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.
d. Costs
47. 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.
48. 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.
49. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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REF. FPSD-13379
IV. Decision of the Dispute Resolution Chamber
1.
The Football Tribunal has jurisdiction to hear the claim of the claimant, Anyuta Galstyan.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, Okzhetpes, must pay to the Claimant the following amount(s):
- KZT 31,808 as outstanding remuneration plus 5% interest p.a. as from 12 October 2023
until the date of effective payment;
- KZT 54,805 as outstanding remuneration plus 5% interest p.a. as from 12 October 2023
until the date of effective payment.
4.
Any further claims of the Claimant are rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
6.
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.
7.
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.
8.
This decision is rendered without costs.
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 Governing the Football
Tribunal).
CONTACT INFORMATION
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396 Alhambra Circle, 6th floor, Coral Gables, Miami, Florida, USA 33134
legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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