Labour Disputes
Texto da decisão
REF FPSD-3355
Decision of the
Dispute Resolution Chamber
passed on 16 December 2021
regarding an employment-related dispute concerning the player Aliaksei
Haurylovich
COMPOSITION:
DE WEGER, Frans (The Netherlands), Chairperson
COLLINS, Angela (Australia), Member
DE JONG, Daan (The Netherlands), Member
CLAIMANT:
Aliaksei Haurylovich, Belarus
RESPONDENT:
FC Okzhetpes, Kazakhstan
Page 2
REF FPSD-3355
I.
Facts of the case
1.
On 9 February 2021, the National Dispute Resolution Chamber of the Kazakhstan Football
Federation (hereinafter: the KKF NDRC) issued a decision in the context of an employmentrelated dispute between the Belarussian player, Mr Aliaksei Haurylovich (hereinafter: the
player or the Claimant), and the Kazakhstani club, FC Okzhetpes (hereinafter: the club or the
Respondent).
2.
In accordance with the decision of the KKF NDRC, the club was ordered to pay the player the
following amounts:
“1) salaries arreas for the months of March, April, May, October and November 2020 in the
amount of 23 472 312,5 Tenge (Twenty-three million four hundred and seventy-two
thousand three hundred and twelve Tenge and fifty Tiyn);
2) to pay a penalty for each overdue calendar day of payment of salary calculated from 11th
day of every next month for salaries for the month of March, April, May, October and
November 2020 and on the day of fulfillment of obligations, calculated based on the 1.25fold official refinancing rate of the National Bank of the Republic of Kazakhstan on the day
of fulfillment of obligations;
3) outstanding compensation payment for unused days annual paid labor leave in the amount
of 7 024 380.2 Tenge (Seven million twenty-four thousand three hundred and eight Tenge
and twenty Tiyn);
4) pay a penalty for each overdue calendar day of payment of compensation for unused days
of annual paid labor leave, calculated from December 04, 2020, and on the day of fulfillment
of obligations, calculated based on the 1.25-fold official refinancing rate of the National Bank
of the Republic of Kazakhstan on the day of fulfillment of obligations”.
3.
On 17 March 2021, the KKF NDRC imposed a disciplinary sanction on the club for the noncompliance of its previous decision. Specifically, the KKF NDRC order the club to pay a fine of
KZT 100,000, as well as banned it for the registration of transfers of players.
4.
On 15 April 2021, the club and the player signed a settlement agreement (hereinafter: the
settlement agreement) by means of which the player agreed to lift the club’s registration ban
in consideration of the following amounts:
a. KZT 12,000,000 net by 15 April 2021;
b. “the remaining amount of the principal debt pursuant to paragraphs 2.1) and 2.3) of
the decision of the KFF DRC in the amount of KZT 48,496,695.07 (eighteen million
four hundred ninety six thousand six hundred ninety five tenge, 7 tiyn), as well as the
amount of interest calculated in accordance with points 2.2) and 2.4) of the Decision
Page 3
REF FPSD-3355
of the KFF DRC as of the date of effective payment (for reference: as of 15 April 2021,
the total amount of the penalty is more than KZT 2,000,000.00) – on or before 30 June
2021”.
5.
In addition, clause III of the settlement agreement read as follows: “If this club fails to comply
with clause I.2 of this agreement, the player has the right to receive an additional
compensation in form of fine in the amount equal to 0.05% of the amount owed for each
day of delay in payment. In this case, the player has the right, at his discretion, to apply either
to the Dispute Resolution Chamber of the KFF with a request to renew the sanctions against
the club and collect the amount of the debt in full in accordance with the Decision of the FKK
DRC and this clause, excluding the amounts already paid, or to the Dispute Resolution
Chamber of FIFFA, with a request to enforce an execution of this agreement terms”.
6.
The settlement agreement was signed by both the player and a club’s representative.
7.
On 1 July 2021, the player lodged a claim before the KKF NDRC requesting the enforcement
of the decision in line with the settlement agreement.
8.
On 8 July 2021, the club sent the player a “notification of termination of the settlement
agreement”. In this opportunity, the club held that the contract concluded between the
parties “does not comply with the principles of fairness, contains obvious errors in terms of
the total amount of the debt and the calculation of penalties”. As such, the club maintained
that the settlement agreement could not be executed.
9.
On 18 August 2021, the KKF NDRC issued its decision and terminated the proceeding
addressing the non-fulfilment of the terms of the settlement agreement. Said decision read,
inter alia: “this decision may be appealed to the KFF Appeal Committee in accordance with
the procedure provided for by the KFF Disciplinary Regulations”.
II. Proceedings before FIFA
10. On 18 August 2021, the player filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Claim of the player
11. According to the player, the club breached the settlement agreement “without just cause”.
Consequently, he requested to be awarded the amounts therein described, as follows:
a. KZT 7,184,784.35 as outstanding salaries, plus “a penalty for each overdue calendar
day of payment of salaries calculated from 11th day of each following month for
salaries for March, April, October and November 2020, and on the day of fulfilment of
Page 4
REF FPSD-3355
obligations calculated based on the 1.25-fold official refinancing rate of the National
Bank of the Republic of Kazakhstan”;
b. KZT 6,321,942.18 as “outstanding compensation for the unused days of annual paid
labor leave”, plus “a penalty for each overdue calendar day of payment of
compensation for the days of annual paid labor leave that [the player has] not used,
calculated from December 04, 2020, and on the day of fulfilment of obligations,
calculated based on the 1.25-fold official refinancing rate of the National Bank of the
Republic of Kazakhstan”;
c. KZT 13,506,726.53 as “additional penalty for each of overdue calendar day of payment
of debt” according to the settlement agreement “calculated from July 01, 2021, and
on the day of fulfilment of obligations”.
b. Reply of the club
12. In its reply, the club challenged FIFA’s jurisdiction to hear the case at stake. Accordingly, it
mentioned that the concept of “settlement agreement” is not mentioned in the regulations,
as well as that the dispute at stake is not employment-related.
13. As to the substance, the club recalled the content of its termination notice of 8 July 2021,
according to which the settlement agreement could not be considered invalid. In this respect,
the club pointed out that the calculations used by the parties were wrong vis-à-vis the latest
decisions of the local labour courts as to the unilateral variation of the player’s salaries in the
context of the COVID-19 pandemic. Furthermore, the club stated that “the conclusions of
the labour inspectorate are also applicable to other employees who worked at that time”.
14. Finally, the club concluded its submission as follows: “on the basis of the above, we ask DRC
FIFA to recognize the termination of the settlement agreement unilaterally by [the club] as
justified by the erroneous calculations of the player and reject all the player’s claims”.
c. Rejoinder of the player
15. In his rejoinder, the player initially opposed the club’s position as to the admissibility of the
claim. In particular, he highlighted the content of articles 22, 24 and 12bis of the FIFA
Regulations on the Status and Transfer of Players (RSTP).
16. As to the substance, the player stressed that the conclusion of the settlement agreement was
of the club’s initiative, hence that it could not be deemed legally terminated. Additionally, he
reiterated that he was not a party to the disputes before the labour court moreover that he
was not in agreement with the outcome established thereto.
17. In continuation, the player pointed out that the previous dispute before the KKF NDRC
analysed the non-fulfilment of the employment agreement, whereas this claim pertains to
Page 5
REF FPSD-3355
the non-fulfilment of the settlement agreement – hence that they shall be treated as different
matters.
18. Finally, the player filed specific comments on the calculation of the amounts allegedly due by
the club to the player.
d. Final comments of the club
19. In its final comments, the club once again referred to the COVID-19 pandemic and to its
entitlement to reduce the player’s salaries in connection with the decisions issued by the
labour courts of Kazakhstan. In doing so, the club outlined that the settlement agreement
was “made unfairly” and could not be enforced.
III. Considerations of the Dispute Resolution Chamber
20. 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 August 2021 and submitted for decision
on 16 December 2021. 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.
21. 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
RSTP (August 2021 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 a Belarussian player and a Kazakhstani club.
22. At this point, the DRC acknowledged that the club contested its competence to deal with the
matter at stake and held that it does not pertain to an employment-related dispute.
23. In this context, the Chamber first of all found it essential to recall the long-standing
jurisprudence of the Football Tribunal and the Court of Arbitration for Sport (CAS) as to the
definition of an employment-related dispute. In particular, the DRC deemed it noteworthy to
quote the conclusion reached in CAS 2019/A/6312, in verbis, to which it adhered:
“Article 22(b) FIFA RSTP applies not only to employment disputes between a club and a player
in the narrow meaning of the term, which would refer only to disputes arising exclusively out
of an employment agreement, but it also covers disputes between clubs and players that are
related to the employment in general. As a matter of fact, employment relations are wider
than employment agreements and may cover areas that are not referred to in the written
employment contract. Therefore, the notion of "employment-related disputes", as clearly
stipulated in this relevant article of the FIFA RSTP, includes by all means a much wider range
Page 6
REF FPSD-3355
of disputes than just disputes arising over employment agreements. Consequently, the scope
of Article 22 FIFA RSTP includes also disputes that may arise after the termination of the
employment relationship and are "employment related" [...]. Pursuant to this approach, CAS
jurisprudence requires the arbitral tribunal to consider the overall nature of the dispute, in
light of the circumstances of the employment relationship, for the sake of establishing
whether the dispute is related with the employment relationship (cf. CAS 2015/A/3923)”.
24. With the above in mind, the members of the Chamber carefully analysed the wording of the
settlement agreement at the basis of the dispute and acknowledged that: (i) it contains a
clear jurisdiction clause referring to FIFA’s competence in case of any dispute arising from its
content; and (ii) it regulates the outstanding remuneration due by the club to the player in
connection with the employment relationship previously maintained between them.
25. Therefore, contrary to the argumentation brought forward by the club, the DRC could not
see any prima facie reason to derogate its competence to hear the dispute at hand due to
the fact that it constitutes an employment-related dispute (in general) of an international
dimension. Consequently, the Chamber deemed that the dispute, in principle, fell with the
ratione materiae of art. 22 lit. b) of the FIFA RSTP.
26. Nevertheless, while carefully analysing the documentation on file, the DRC also noted that
another claim, based on the same settlement agreement binding the parties, was previously
lodged by the player before other deciding bodies – i.e. the KKF NDRC.
27. In view of the foregoing, the Chamber took note that in paragraph 5 of his statement of
claim, the player confirmed that he filed a claim before the KKF NDRC pertaining the noncompliance of the settlement agreement. Moreover, the DRC was also observant of the
player’s argumentation according to which he requested the termination of said proceedings
“considering the club’s response”.
28. The Chamber did not fail to notice either that the player submitted a copy of the claim
addressed to the KFF NDRC dated 1 July 2021, together with the decision issued by said
deciding-body establishing that the proceedings were terminated. The decision specifically
established that it could be appealed to the “FKK Appeal Committee” in accordance with the
pertinent regulations.
29. In view of the foregoing, the DRC found it important to underline that in the spirit of the
applicable regulations, a player – or a club – who actively decides to bring forward a dispute
before a local deciding body, rather than making use of the alternative dispute resolution
process proposed within the legal framework of FIFA, must demonstrate consistency in
relation to the choice of the course of action. Accordingly, the DRC cannot condone the
attitude of a party who at first decides to submit a labour dispute to a competent, specific,
local deciding body, and subsequently decides to submit this very same dispute (between the
same parties, based on the same legal framework) to FIFA; the same is to be noted if the
party submits a claim before FIFA and thereafter seeks to lodge the same claim in front of
Page 7
REF FPSD-3355
different national bodies. Finally, the Chamber also wished to emphasise that a party who
chooses a certain course of legal remedy may not then decide to change the legal forum of
the dispute, as this would jeopardise the credibility of the sporting dispute resolution system.
30. In this respect, the DRC referred to the principle of electa una via, non datur recursus ad
alteram and stressed that in the present case the player elaborated and developed an
inconsistent procedural strategy, known as “Forum Shopping”, by lodging two claims before
different competent deciding bodies with a view to obtain the most advantageous possible
outcome.
31. Consequently and in line with the well-established jurisprudence of the Football Tribunal, the
members of the Chamber unanimously decided that the player’s claim in front of FIFA is
inadmissible.
32. Lastly, 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 established that no procedural costs were
to be imposed on the parties.
33. 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.
Page 8
REF FPSD-3355
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Aliaksei Haurylovich, is inadmissible.
2. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
Page 9
REF FPSD-3355
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).
CONTACT INFORMATION
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
Page 10