Labour Disputes
Texto da decisão
REF. FPSD-12736
Decision of the
Dispute Resolution Chamber
passed on 18 April 2024
regarding an employment-related dispute concerning the player
Viacheslav Aleksandrovich Grab
COMPOSITION:
Martín Auletta (Argentina), Deputy Chairperson
Roy Vermeer (the Netherlands), member
Khalid Awad Al-Thebity (Saudi Arabia), member
CLAIMANT:
Viacheslav Aleksandrovich Grab, Russia
Represented by Anton Smirnov
RESPONDENT:
Okzhetpes, Kazakhstan
pg. 2
REF. FPSD-12736
I. Facts of the case
1.
On 6 December 2021, the Russian player, Viacheslav Aleksandrovich Grab (hereinafter:
Claimant or player) and the Kazakh club, Okzhetpes (hereinafter: club or Respondent)
concluded an employment contract (hereinafter: contract) valid as from 6 December 2021
until 30 November 2022.
2.
According to the contract, the Respondent undertook to pay the Claimant a monthly base
salary of KZT 2,650,000 gross (KZT 2,385,000 net), payable by the 10th day of each month.
3.
On 6 December 2021, the player and a club concluded an additional agreement which
established, inter alia, the following:
“Article 11 “Specific Provisions” shall be supplemented with clause 11.7 of the
following content:
“The Employer bears the costs of paying for the Employee's meals during the
periods of training camps, during competitions and preparation for them”.
2. Bonus is paid to the Employee for winning in the matches of the OLIMPBET—Championship
and the OLIMPBET—Cup of the Republic of Kazakhstan in football among the Premier League
clubs of the sports season of 2022 in away and home matches which is in the amount of 310,242
(three hundred ten thousand two hundred forty two) tenge, with consideration of taxes (100%),
in cases of:
a) participation of the Employee in the roster of the main squad during the match, a bonus of
100% of the specified amount is paid;
b) if the Employee is included in the game protocol, but did not participate in the match, a bonus
of 20% of the specified amount is paid;
c) if the Employee stepped in as a substitute player during the match, a bonus of 20% to 100%
of the specified amount is paid;
d) the Employee (reserve goalkeeper) is paid a bonus in the amount of 50% of the
specified amount;
e) in exceptional cases, by the decision of the Employer, a bonus in the amount of 150% to 200%
of the specified amount is paid.”
4. On 26 October 2022, the player and a club concluded a further additional agreement which
established, inter alia, the following:
“1. Article 10 of the Employment Contract No. 143 of 6 December 2021
Validity term of the Employment Contract” shall be supplemented with clause 10.3 of the
following content:
In case "Okzhetpes" football team promotes to the Premier League following the results of the
Championship of the Republic of Kazakhstan among the teams of the First League of the sports
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REF. FPSD-12736
season of 2022, the Employment Contract with the Employee is extended until 30 November
2023 with the review of the terms and conditions of the payment for labor towards increase".
Terms and conditions of the Employment Contract No. 143 of 6 December 2021 not affected by
this Agreement, remain unchanged.
This Additional Agreement was made and signed in three copies having the same legal force,
one copy for each of the Parties, one copy for the PFLK.”
5. On 1 March 2023, the player and a club concluded an third additional agreement which
established, the number of bonuses for the matches of the sports season of 2023.
6. On 18 October 2023, the player sent a default notice to the club, requesting payment of the
amount of KZT 12,933,026 net, granting it a deadline of 15 days to comply, however to no
avail.
7. On 26 October 2023, the club paid the player a part of the debt in the amount of KZT 2 385
000.
8. On 3 November 2023, the player terminated the contract with the club.
II. Proceedings before FIFA
9.
On 19 November 2023, 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
10. The requests for relief of the Claimant, were the following:
-
“to collect from the Club in favor of the Football Player the debt on salary for October 2022 in
the amount of 2 385 000 (Two million three hundred and eighty-five thousand) tenge net, as well
as the interest for delay in payment in accordance with Article 113 of the Labor Code of the RK
in the amount of 18% per annum, starting from 11 November 2022 to the date of actual
repayment.
-
to collect from the Club in favor of the Football Player the debt on the remuneration for
November 2022 in the amount of 2 779 236 (Two million seven hundred seventy-nine thousand
two hundred thirty-six) tenge 11 tiyn net, as well as the interest in delay in payment in
accordance with Article 113 of the Labor Code of the RK in the amount of 18% per annum,
starting from 11 December 2022 to the date of actual repayment.
-
to collect from the Club in favor of the Football Player the debt on salary for August 2023 in the
amount of 2 385 000 (Two million three hundred and eighty-five thousand) tenge net, as well as
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REF. FPSD-12736
the interest in delay in payment in accordance with Article 113 of the Labor Code of the RK in
the amount of 18% per annum, starting from 10 October 2023 to the date of actual repayment.
-
to collect from the Club in favor of the Football Player the debt on salary for September 2023 in
the amount of 2 385 000 (Two million three hundred and eighty-five thousand) tenge net, as well
as the interest in delay in payment in accordance with Article 113 of the Labor Code of the RK in
the amount of 18% per annum, starting from 8 November 2023 to the date of actual repayment.
-
to collect from the Club in favor of the Football Player the debt on salary for October 2023 in the
amount of 2 385 000 (Two million three hundred and eighty-five thousand) tenge net, as well as
the interest in delay in payment in accordance with Article 113 of the Labor Code of the RK in
the amount of 18% per annum, starting from 8 November 2023 to the date of actual repayment
-
to collect from the Club in favor of the Football Player the debt on bonuses for 3 (Three) games
of the sports season of 2023 in the amount of 500 000 (Five hundred thousand) tenge 40 tiyn
net, as well as the interest in delay in payment in accordance with Article 113 of the Labor Code
of the RK in the amount of 18% per annum, starting from 8 November 2023 to the date of actual
repayment.
-
to collect from the Club in favor of the Football Player the underpayment of the bonuses for the
seasons of 2022 and 2023 in the amount of 467 485 (Four hundred sixty- seven thousand four
hundred eighty-five) tenge 40 tiyn net, as well as the interest for delay in payment in accordance
with Article 113 of the Labor Code of the RK in the amount of 18% per annum, starting from 8
November 2023 to the date of actual repayment.
-
to collect from the Club in favor of the Football Player the debt on the compensation payment
for the unused by the Football Player days of paid annual leave in accordance with paragraph
2 of Article 96 of the Labor Code of the RK in the amount of 2 118 163 (Two million one hundred
eighteen thousand one hundred sixty three) tenge 63 tiyn net, as well as the interest for delay in
payment in accordance with Article 113 of the Labor Code of the RK in the amount of 18% per
annum, starting from 8 November 2023 to the date of actual repayment.
-
to recognize the dismissal of the Football Player from 3 November 2023 as dismissal with just
cause and collect compensation from the Club for the termination of the Employment Contract
by the Football Player with just cause in the amount of the residual value of the Employment
Contract, namely in the amount of the salary for the period from 3 November 2023 to 30
November 2023 which makes 2 385 000 (Two million three hundred and eighty-five thousand)
tenge net.
-
to impose a fine on the Club, in accordance with paragraph 4. Art. 12bis of the FIFA Regulations
on the status and transfer of players.”
11. In his claim, the player, inter alia, argued that the club violated the term of the “employment
contract which was from 6 December 2021 to 3 November 2023 (the date when the Football
Player wrote his letter of dismissal) the Club had to pay the Football Player 60 401 760 (Sixty
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REF. FPSD-12736
million four hundred one thousand seven hundred sixty) tenge 54 tiyn net. This amount consists
of the following:
-
Salary – 50 428 990,39 tenge net;
-
Leave Pay for November-December 2022 – 2 137 120,72 tenge net;
-
Bonuses for the sports season of 2022 – 4 467 484,8 tenge net;
-
Bonuses for the sports season of 2023 – 1 250 001 tenge net;
-
Compensation payment upon dismissal for unused days of paid labor leave – 2 118 163,63 tiyn
net.”
b. Position of the Respondent
11. In its reply, the club states that since commencement of the contract, the player has been
paid the total amount of KZT 42,611,875.
12. The club therefore recognises, the following debt towards the player:
-
“2 703 125 KZT as debt till September 2023
2 385 000 KZT as salary for October 2023
2 137 120 KZT for Labor leave on November 2022. Total: 7 225 242 KZT”
13. As to the bonus payments, the club disagreed with this claim and indicated that the contract
and additional agreement did not guarantee the payment to the player, the player failed
to provide additional documents such as official match reports and head coach reports.
14. As to compensation for unused labour leave, the club stated the following:
-
-
This requirement is also inappropriate and does not find contractual basis.
Following the jurisprudence of the DRC, unused holidays cannot entail the entitlement
of the employee to receive moneys that exceed the value of the contract
As evidence of these allegations, we refer to the point 16 of decision of the DRC FIFA,
passed on August 24, 2022 in the case FPSD-6525 Player Aleksandr Kleshchenko,
Russia/Football Club Ordabasy, Kazakhstan
We pay attention that DRC decision of case FPSD-6525 was not appealed against before
the Court of Arbitration for Sport (CAS). Consequently, the decision, including the refusal
the requirement of compensation for unused vacation, was recognized by the parties.
15. In conclusion the club requested the following relief:
-
Approve the debt owed to the player in the amount of 7,225,242 KZT
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REF. FPSD-12736
-
Determine the interest for late payments in the amount of no more than 5% per annum,
as required by Swiss law
-
Reject all other Player's requirements
c. REACTION OF THE CLAIMANT TO ALLEGED PAYMENTS
-
In his replica, the player, inter alia, mentioned that the club in its reply to the claim misled
FIFA by providing inaccurate information and incorrect calculations.
pg. 7
REF. FPSD-12736
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
17. 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 19 November 2023 and
submitted for decision on 18 April 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.
18. 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 February 2024 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 Russian player
and a Kazakh club.
19. 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 (February 2024 edition), and
considering that the present claim was lodged on 19 November 2023, 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
20. 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
21. 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 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.
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REF. FPSD-12736
i. Main legal discussion and considerations
22. 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 payment of certain
financial obligations by the Respondent.
23. 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 latter had a valid justification for not
having complied with its financial obligations.
24. The Chamber noted that the player argued that the club failed to fully remit
him his remuneration for the seasons 2022/2023 under the respective contracts, as
well as the bonuses.
25. The Chamber further noted that the Respondent argued that it was only liable to pay to the
player, the total amount of KZT 7 225 242.
26. The Chamber remarked 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 cannot establish the
payment of the amounts claimed as outstanding by the Claimant.
27. On analysis of the documentation on file, the Chamber mentioned that it is evident that the
club failed to fully pay the salaries of the player for the period of his time at the club. The
payment documents date back to a period in 2021, not requested in the claim, moreover
some amounts paid are really inconsistent with the actually monthly salary of the player
i.e., KZT 2,650,000 (KZT 2,385,000 net)
28. In this context and considering that the Respondent had thus repeatedly and for a
significant period of time been in breach of its contractual obligations towards the
Claimant, the Chamber decided that the Claimant had just cause to unilaterally terminate
the employment contract on 3 November 2023 and that, as a result, the Respondent is to
be held liable for the early termination of the employment contact with just cause by the
Claimant.
ii. Consequences
29. 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.
30. 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 the following:
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REF. FPSD-12736
-
KZT 2,385,000 net as October 2022 salary
KZT 2,779,236 net as November 2022 partial salary and leave
KZT 2,385,000 net as October 2023 salary
KZT 500,000 net as outstanding bonus
KZT 467,485 net as outstanding bonus
KZT 2,118,163 net as outstanding leave
31. The Chamber decided that the player is entitled to his salaries for October, November 2022
and October 2023, as the club failed to meet its burden of proof regarding payment of
the said amounts. The Chamber made reference to the payment made by the club on 26
October 2023 and indicated that this amount shall be attributed to the outstanding salary
of September 2023.
32. Furthermore, the Chamber observed that both parties acknowledge the player’s
entitlement to his annual leave, hence the Chamber decided to award the player’s
entitlement thereto.
33. As to the bonus payments, the Chamber took into account that the player based his
entitlement thereto on the additional agreement concluded between the parties and
requested bonuses for 3 (three) games of the sports season of 2023 in the amount of KZT
500 000 and under payment of the bonuses for the seasons of 2022 and 2023 in the
amount of KZT 467 485. In this context, the Chamber remarked that it should be noted
that the entitlement to these bonuses is indeed stipulated in the additional agreement,
moreover the player submitted sufficient evidence of his participation in the exact games
therefore his entitlement to the bonuses is awarded.
34. Lastly, the Chamber observed that the player requested to be awarded interest in line with
the Kazakhstani law, however up to a maximum of 18% p.a. In this respect, the Chamber
remarked that the supporting evidence submitted by the player is not sufficient neither
does it justifies the application of the requested interest rate in the matter at hand,
therefore taking into consideration 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 until the date of effective payment.
35. 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
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REF. FPSD-12736
maximum of five years, and depending on whether the contractual breach falls within the
protected period.
36. 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.
37. 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.
38. 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 2,385,000 net (residual value of contract) serves as the
basis for the determination of the amount of compensation for breach of contract.
39. 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.
40. In this respect, the Chamber noted that the player remained unemployed since the
unilateral termination of the contract.
41. The Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to which, in case
the player did not sign any new contract following the termination of his previous contract,
as a general rule, the compensation shall be equal to the residual value of the contract that
was prematurely terminated.
42. In this respect, the Chamber decided to award the player compensation for breach of
contract in the amount of KZT 2,385,000 net, as the residual value of the contract.
43. Lastly, 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 XXX until the date of
effective payment.
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REF. FPSD-12736
iii. Compliance with monetary decisions
44. 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.
45. 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.
46. 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.
47. 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.
48. 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
49. 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.
50. 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.
51. 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-12736
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Viacheslav Aleksandrovich Grab, is partially accepted.
2.
The Respondent, Okzhetpes, must pay to the Claimant the following amount(s):
(a) KZT 10,634,884 net as outstanding remuneration plus 5% interest p.a. as from the
respective due dates until the date of effective payment as follows:
-
On the amount of KZT 2,385,000 net as from 11 November 2022
On the amount of KZT 2,779,236 net as from 11 December 2022
On the amount of KZT 2,385,000 net as from 3 November 2023
On the amount of KZT 500,000 net as from 3 November 2023
On the amount of KZT 467,485 net as from 3 November 2023
On the amount of KZT 2,118,163 net as from 3 November 2023
(b)KZT 2,385,000 net as compensation for breach of contract without just cause plus
5% interest p.a. as from 3 November 2023 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.
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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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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