Labour Disputes
Texto da decisão
REF. FPSD-12603
Decision of the
Dispute Resolution Chamber
passed on 19 February 2024
regarding an employment-related dispute concerning
the player Aliaksandr Jyhera
BY:
Mario FLORES CHEMOR (Mexico)
CLAIMANT:
Aliaksandr Jyhera , Belarus
Represented by Kiryl Maleyeu
RESPONDENT:
Okzhetpes, Kazakhstan
pg. 2
REF. FPSD-12603
I. Facts of the case
1.
On 10 February 2023, the player from Belarus, Aliaksandr Jyhera (hereinafter: player or
Claimant) and the club from Kazakhstan, FC Okzhetpes (hereinafter: club or Respondent)
concluded an employment contract (hereinafter: contract) valid from date of signature until
1 November 2023.
2.
According to the contract the club undertook to pay the player, a monthly salary of KZT
1,753,400.
3.
On 10 July 2023, the parties signed a termination agreement (hereinafter: termination
agreement), according to which the parties agreed to the following:
“1. Employment contract No. 14 signed between parties on 10 February 2023 as well as all
supplementary agreements to this contract are terminated by the parties’ mutual consent since
10 July 2023.
2. The Employee is obliged to calculate and pay compensation for unused days of annual labor
leave upon termination of the employment contract for the worked period from 10 February
2023 to 9 July 2023 at the rate of 11 calendar days (10 working days).”
4.
According to the Claimant, on 11 July 2023, the club confirmed via WhatsApp that the total
severance pay due to the player is the amount of KZT 3,743,000.
5.
On 13 July 2023, the club made a payment to the player in the amount of KZT 2,000,000.
6.
On 19 October 2023, the player sent a default notice to the club requesting the remaining
amount of KZT 1,743,000, granting it a deadline of 10 days to comply.
II. Proceedings before FIFA
7.
On 10 November 2023, the player filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a. Position of the player
8.
In his claim, the player argued that the club failed to comply with its contractual financial
obligations.
9.
In this context, the player indicated that he was entitled to the total remuneration of KZT
9,707,120,00, however the club only paid him the amount of KZT 7,964,120,00.
pg. 3
REF. FPSD-12603
10. The requests for relief of the player, were that the Respondent paid him the amount of KZT
1,743,000 as outstanding amount plus 20% interest per annum as from 10 November 2023
b. Position of the club
11. In its reply, the club. “the labor relations of the parties lasted from February 10 to July 10 2023
(5 months) and in this regard the club stated that during the period of February 10 till July 10,
2023 the Club transferred to the Player's bank account next amounts:”
No.
1
2
3
4
5
6
Date
06.03.2023
04.04.2023
03.05.2023
17.05.2023
19.06.2023
19.06.2023
Total:
Amount
500 000 KZT
1578000 KZT
250 000 KZT
500 000 KZT
1568060 KZT
1568060 KZT
5 964120 KZT
12. Therefore, according to the club, since the termination agreement provided “only for the
payment of compensation for unused labor leave, the Club mistakenly credited the employee
with an extra 1,433,180 KZT (2 000 000 - 566 820).”
13. As to the bonus payments, the club stated that the termination agreement did not contain
any provision as to bonus payments.
14. Moreover, the club mentioned that , “the Player provides personal correspondence in
WhatsApp with an unknown official of the Club and that this correspondence cannot be accepted
as evidence because the position of the interlocutor is not indicated, his competence in the club
is not visible, the phone number is not visible, wages and debts are not mentioned in this
correspondence.”
15. The requests for relief of the club were the following:
•
•
Reject the Player's claims as unacceptable.
Oblige the Player to return the excess transferred funds in the amount of
1,433,180 to the Club.
c. Additional Comments of the player
16. In his replica, the Claimant denied that it received extra or overpayment from the
Respondent and accordingly reiterated his request of relief.
pg. 4
REF. FPSD-12603
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
17. 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 10 November
2023 and submitted for decision on 19 February 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 Single Judge 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 (May 2023 edition), the Single Judge is
competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a player from Belarus and a club from
Kazakhstan.
19. 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 (May 2023 edition), and
considering that the present claim was lodged on 10 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 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
21. 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, the Single Judge 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.
pg. 5
REF. FPSD-12603
i. Main legal discussion and considerations
22. The foregoing having been established, the Single Judge moved to the substance of the
matter and took note that the parties strongly dispute the total amount that was
outstanding and due to the player as per the termination agreement concluded between
the parties on 10 July 2023.
23. In this context, the Single Judge acknowledged that his task was to determine whether the
amounts claimed by the player had indeed already fallen due and were to be paid by the
club.
24. The Single Judge noted that in its submission, the club argued that as per the termination
agreement it was only liable to compensate the player for unused labour leave.
25. In this context the Single Judge noted that based on the submissions of the parties, they
agreed on the amount that is due as unused labor leave. i.e., KZT 566 820
26. Subsequently, the Single Judge mentioned that in the case at hand the club bore the burden
of proving that it indeed complied with the financial terms of the termination agreement
concluded between the parties specifically in relation to the outstanding remuneration as
claimed, which it failed to do.
27. Moreover, the Single Judge held that no reasonable justification was presented by the club
for not having complied with the terms of the termination agreement.
28. In view of the foregoing, the Single Judge concluded that the club was indeed in arrears of
its financial obligations as per the termination agreement and is thus to be held liable for
the consequences thereof.
ii. Consequences
29. Having stated the above, the Single Judge turned his attention to the question of the
consequences of such unjustified breach of the termination agreement committed by the
Respondent.
30. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Single Judge decided that the Respondent is liable to pay to the Claimant the amount
of KZT 807,880 [KZT 8,772,0000 (salaries due for 5 months) less KZT 7,964,120 (amount
paid by the club)].
31. What is more, based on its well-established jurisprudence as well as taking into account
the Claimant’s request, the Single Judge decided to award 5% interest p.a. on the above
amounts as from 10 July 2023.
pg. 6
REF. FPSD-12603
32. The Single Judge indicated that the Claimant’s request for bonus, shall be rejected as the
contract and the termination agreement did not contain any provisions regarding payment
of bonus amounts.
33. Lastly, the Single Judge mentioned that in relation to the interest rate of 20%, detailed in
the Claimant’s submissions and in this regard mentioned that there is no contractual
provision agreeing to same.
iii. Compliance with monetary decisions
34. Finally, taking into account the applicable Regulations, the Single Judge referred to art. 24
par. 1 and 2 of the Regulations, which stipulate that, with his 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.
35. In this regard, the Single 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.
36. Therefore, bearing in mind the above, the Single 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. 24 par. 2, 4, and 7 of the Regulations.
37. 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.
38. The Single 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. 24 par.
8 of the Regulations.
d. Costs
39. The Single 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 Single Judge decided that no procedural costs were to be
imposed on the parties.
pg. 7
REF. FPSD-12603
40. Likewise, and for the sake of completeness, the Single 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.
41. Lastly, the Single Judge concluded his deliberations by rejecting any other requests for relief
made by any of the parties.
pg. 8
REF. FPSD-12603
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Aliaksandr Jyhera, is partially accepted.
2.
The Respondent, Okzhetpes, must pay to the Claimant the following amount(s):
- KZT 807,880 as outstanding amount plus 5% interest p.a. as from 10 July 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
pg. 9
REF. FPSD-12603
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
pg. 10