Labour Disputes
Texto da decisão
REF FPSD-3146
Decision of the
Dispute Resolution Chamber
Passed on 27 October 2021
regarding an employment-related dispute concerning the player Rahat
Japarov
BY:
Jon Newman (USA)
CLAIMANT:
Rahat Japarov, Turkmenistan
Represented by Valeryia Lukhverchyk
RESPONDENT:
Buxoro FK, Uzbekistan
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I.
Facts of the case
1.
On 25 January 2021, the player from Turkmenistan, Rahat Japarov (hereinafter: the player or
the Claimant), and the club from Uzbekistan, Buxoro FK (hereinafter: the club or the
Respondent) signed an employment contract valid as from the same date until 25 December
2021 (hereinafter: the contract).
2.
According to clauses 7.1 and 7.2 of the contract, the Respondent undertook to pay to the
Claimant the following amounts:
a.
Salary of UZS 18,181,819;
b.
Bonus of a maximum of UZS 5,000,000 per game won depending if the player
played in the starting eleven (100%), was fielded as a substitute (70%), or was merely in the
roster (50%).
3.
The cited clauses further established as follows: “Monthly salary in accordance with the tax
laws of republic of Uzbekistan are taxed in the established mode”.
4.
On 14 June 2021, the parties concluded a termination agreement. In accordance with
clauses 3 and 4 of the termination agreement:
“3. The Club confirms and undertakes to pay compensation to the Player in the amount of
2 months’ salary 36 363 638 ( Thirty six million three hundred sixty three thousand six
hundred thirty eight) sum until 10 July 2021 by transfer to a plastic card opened in the
Bukhara branch of " Ipoteka Bank" in the national currency "Uzbek Sum".
4. After the debt payment, the Club and the Player mutually refuse to submit any claims
related to the employment contract of 25 January 2021, annexes and additional
agreements to it to the UFA Dispute Resolution Chamber, the FIFA Dispute Resolution
Chamber, other jurisdictional bodies of UFA and FIFA, courts of general jurisdiction and
other courts located on the territory of the Republic of Uzbekistan or foreign states”.
5.
On the same day, the Respondent issued a letter to the Claimant guaranteeing payment of
USZ 36,363,638 by 10 July 2021. In accordance with the cited letter: “In case of non-payment
of the abovementioned debt until 10 July 2021, Professional Football Club Buxoro LLC
undertakes to pay to the Player all the salaries and bonuses until the end of the Contract”.
6.
On 12 July 2021, the Claimant put the Respondent in default and granted it until 23 July
2021 to settle the amount of USZ 158,409,096, broken down as follows:
a.
b.
USZ 124,242,430 as salaries between June and 25 December 2021;
USZ 34,166,666 as bonuses June and 25 December 2021.
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7.
On 14 July 2021, the Respondent replied to the Claimant’s letter and confirmed that while it
could not perform payment due to the club’s bank account being seized, payment would be
done by the end of July 2021.
II. Proceedings before FIFA
8.
On 26 July 2021, 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
9.
According to the Claimant, he is entitled to payment of amounts under the contract and
guarantee letter, as follows:
“The amount of salary for August-November and 25 days of December, including the debt of
June-July (UZS 284 436 net), is UZS 881 63 227 net (Eighty eight million one hundred sixty
three thousand two hundred twenty seven) soums.
June –July 2021 –UZS 284 436 net;
August 2021–UZS 18 181 819 net;
September 2021 –UZS 18 181 819 net;
October 2021 –UZS 18 181 819 net;
November 2021 –UZS 18 181 819 net;
December (25 days) –UZS 15 151 515 net.
The amount of bonuses for June-November and 25 days of December is UZS 34 166 666 net
(Thirty four million one hundred sixty six thousand six hundred sixty six) soums:
a) June2021 –UZS 5 000 000 net;
b) July 2021 –UZS 5 000 000 net;
August2021–UZS 5 000 000 net;
September 2021 –UZS 5 000000 net;
October 2021 –UZS 5 000 000 net;
November 2021 –UZS 5 000000 net;
December (25 days) –UZS 4 166 666 net.
Total due payments: UZS 122 329 893 (One hundred twenty two million three hundred
twenty-nine thousand eight hundred ninety three) soums”.
10. The Claimant further asked that interest of 5% p.a. accrued as from the due dates until the
effective payment.
b. Position of the Respondent
11. In its reply, the Respondent confirmed the facts as described by the Claimant, but argued that
it had paid UZS 36,063,638 to the Claimant on 16 July 2021. It provided a copy of an
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electronic receipt to this end. As such, the Respondent referred to clause 4 of the termination
agreement and argued that both parties are “cancelled” from making any claims.
12. The Respondent considered the claim “unreasonable and inexpedient”.
c. Additional comments of the Claimant
13. Upon request of FIFA to comment of the proof of payment, the Claimant argued that in
accordance with the principle lex specialis derogat generali, the letter of guarantee entitles
the player to receive the full contract value irrespective of the contents of the termination
agreement.
14. The Claimant also referred to the fact that the Respondent did not pay him in time in spite of
the default notice sent.
15. The Claimant does not deny but also does not confirm that the payment argued by the
Respondent was performed.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
16. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to
as Single Judge) analysed whether he was competent to deal with the case at hand. In this
respect, he took note that the present matter was presented to FIFA on 26 July 2021 and
submitted for decision on 27 October 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.
17. Subsequently, the Single Judge referred to art. 2 par. 1 and art. 24 par. 1 lit. a) 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),
he is competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a player from Turkmenistan and a club from
Uzbekistan.
18. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he 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 that the present claim was lodged on 26 July 2021, the February 2021 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
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b. Burden of proof
19. The Single Judge 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 Single Judge stressed the
wording of art. 13 par. 4 of the Procedural Rules, pursuant to which he 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
20. His competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, the Single Judge started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, he emphasised that in the following considerations he will
refer only to the facts, arguments and documentary evidence, which he considered pertinent
for the assessment of the matter at hand.
i. Main legal discussion and considerations
21. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the parties dissent on the consequences of the
undisputed late payment made by the club in connection with the termination agreement.
22. To this end, the Single Judge wished to recall that in accordance with the clear wording of
the letter of guarantee, “In case of non-payment of the abovementioned debt until 10 July
2021, Professional Football Club Buxoro LLC undertakes to pay to the Player all the salaries
and bonuses until the end of the Contract”.
23. In the Single Judge’s eyes, the cited clause is a penalty clause, according to which the player
would be entitled to the full residual value of the contract in case the club failed to timely pay
the amount set forth in both the termination agreement and the letter of guarantee (which,
he noted, indeed happened albeit with a short delay of 6 days).
24. Consequently, in accordance with the principle pacta sunt servanda, the Single Judge
confirmed that such clause should be enforced and that the club is to pay the amounts sought
by the player in accordance with the termination agreement and the letter of guarantee,
minus the payment performed (with delay) by the club. To this end, the Single Judge was
comfortable to establish per the evidence submitted by the club that the payment was indeed
performed, moreover since the player does not deny it.
25. The Single Judge confirmed that the residual value of the contract, comprising of both the
remuneration and bonuses, amounted UZS 149,924,247.64, broken down as follows: (a) UZS
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115,757,580.97 as salaries and (b) UZS 34,166,666.67 as bonuses. From this, UZS
36,363,638 paid by the club were deducted, arriving at the final outstanding amount of UZS
113,560,609.64.
26. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Football Tribunal in this regard, the Single Judge decided to award the Claimant interest
at the rate of 5% p.a. on the outstanding amounts as from their due dates until the date of
actual payment, as follows:
- Interest at the rate of 5% p.a. on the amount of UZS 149,924,247.64 as from 11 July 2021
until 16 July 2021; and
- Interest at the rate of 5% p.a. on the amount of UZS 113,560,609.64 as from 17 July 2021
until the date of effective payment.
ii. Compliance with monetary decisions
27. Finally, taking into account the applicable Regulations, the Singe Judge referred to art. 24bis
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.
28. In this regard, the Singe 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.
29. Therefore, bearing in mind the above, the Singe 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.
30. 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.
31. The Singe 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.
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d. Costs
32. The Singe Judge 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 Singe Judge decided that no procedural costs were
to be imposed on the parties.
33. Likewise and for the sake of completeness, the Singe Judge recalled the contents of art. 25
par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
34. Lastly, the Singe Judge concluded his deliberations by rejecting any other requests for relief
made by any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Rahat Japarov, is partially accepted.
2.
The Respondent, Buxoro FK, has to pay to the Claimant the following amounts:
- UZS 113,560,609.64 as outstanding remuneration;
- Interest at the rate of 5% p.a. on the amount of UZS 149,924,247.64 as from 11 July 2021
until 16 July 2021;
- Interest at the rate of 5% p.a. on the amount of UZS 113,560,609.64 as from 17 July 2021
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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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).
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