DRC Overdue Payables
Texto da decisão
REF FPSD-6525
Decision of the
Dispute Resolution Chamber
passed on 24 August 2022
regarding an employment-related dispute concerning the player
Aleksandr Kleshchenko
BY:
Philippe Diallo (France), Single Judge of the DRC
CLAIMANT:
Aleksandr Kleshchenko, Russia
Represented by Mr Smirnov Anton Yurievich
RESPONDENT:
Ordabasy, Kazakhstan
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REF FPSD-6525
I. Facts of the case
1.
On 2 February 2020, the parties concluded an employment contract, valid as from the
date of its signature until 30 November 2021, as well as an Annexe to the contract.
2.
In accordance with clause 1 of the Annexe, the club undertook to pay to the player,
inter alia, a monthly salary of KZT 8,500,000 gross (approx.: USD 17,500 gross) by the
10th day of the following month to its accrual.
3.
By means of his letter dated 19 May 2022, the player put the club in default of
payment, thereby granting the club a 10 days’ deadline to remedy the default.
II. Proceedings before FIFA
a. Position of the Claimant
4.
On 29 June 2022, the player lodged a claim against the club before FIFA, requesting to
be awarded outstanding remuneration in the total amount of KZT 84,142,841, plus
Interest in accordance with art. 113 of the “Labour Code of the Republic of
Kazakhstan” as from the respective due dates until the date of effective payment, i.e.
“an interest rate equal to 1.25 times the base rate of the National Bank of the Republic
of Kazakhstan”, broken down by the Claimant as follows:
-
5.
KZT 1,898,058, corresponding to the unpaid part of the salary of December
2020;
KZT 8,500,000 corresponding to the salary of April 2021;
KZT 8,500,000 corresponding to the salary of May 2021;
KZT 8,500,000 corresponding to the salary of June 2021;
KZT 8,500,000 corresponding to the salary of July 2021;
KZT 8,500,000 corresponding to the salary of August 2021;
KZT 8,500,000 corresponding to the salary of September 2021;
KZT 8,500,000 corresponding to the salary of October 2021;
KZT 8,113,636 corresponding to the unpaid part of the salary of November
2021;
KZT 14,631,147 as “compensation for unused days of paid annual leave (for 51
calendar days)”.
In his claim, the Claimant explained that despite having validly entered into an
employment contract with the club, the latter failed to respect its financial obligations
towards the player and failed to reply to his default notice.
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6.
In this context, the player requests to be awarded the overdue salaries that the club failed
to pay, as well as an amount of KZT 14,631,147 corresponding to “unused leave”
calculated by the Claimant himself taking into account the average daily income received
by the player and the period during which the Claimant effectively played for the club.
b. Position of the Respondent
7.
On its part, the club failed to reply to the claim.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
8.
First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter referred
to as the 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
29 June 2022 and submitted for decision on 24 August 2022. Taking into account the
wording of art. 34 of the June 2022 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.
9.
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 (July 2022 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 a Russian
player and a Kazakh club.
10. 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 (July 2022
edition) and considering that the present claim was lodged on 29 June 2022, the July
2022 edition of said regulations (hereinafter: the Regulations) is applicable to the
matter at hand as to the substance.
b. Burden of proof
11. 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.
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12. Likewise, the Single Judge 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
13. 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 it considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
14. The foregoing having been established, the Single Judge moved to the substance of
the matter and recalled that, in the matter at hand, the Claimant is requesting to be
awarded outstanding remuneration corresponding to unpaid salaries and unused
leave days plus default interest in accordance with the Labour Code of Kazakhstan
and that, on its part, the Respondent failed to reply to the claim.
15. In this context, the Single Judge noted that it remained uncontested that the club
failed to pay the salaries of December 2020 (partially) and the salaries payable as from
April 2021 until the expiration of the contract (November 2021). Consequently, having
verified that the petita of the Claimant has a contractual basis, the Single Judge
decided that the Claimant is entitled to receive the said salaries, in accordance with
the legal principle pacta sunt servanda.
16. In connection with the amount requested as unused leave, the Single Judge
determined that said request 1.) does not find a contractual basis; 2.) cannot be
awarded in any case since, 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.
17. Furthermore, as for the default interest requested, the Single Judge determined that
the allegations of the Claimant concerning the application of the interest rate
specified under art. 113 of the Labour Code of Kazakhstan cannot be followed, insofar
as the DRC needs to observe the criteria provided by the FIFA Regulations and the
jurisprudence of the Football Tribunal in order not to create disparities in Its
decisions.
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REF FPSD-6525
18. Consequently, the Single Judge decided that -in the absence of any default interest
rate contractually agreed- the Claimant can only be entitled to a default interest of 5%
p.a. on the outstanding amounts due to him.
ii. Consequences
19. Having stated the above, the Single Judge turned his attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
20. The Single Judge observed that the outstanding remuneration at the time of
termination, coupled with the specific requests for relief of the player, are equivalent
to KZT 69,511,694.
21. 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 amounts which were outstanding under the contract, i.e. KZT 69,511,694.
22. In addition, taking into consideration the Claimant’s request as well as 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 their respective
due dates until the date of effective payment.
23. In addition, the Single Judge referred to art. 12bis of the Regulations, in accordance
with which any club found to have delayed a due payment for more than 30 days
without a prima facie contractual basis may be sanctioned, provided that the creditor
player had put the club in default in writing and have granted a deadline of at least
ten days for the debtor club to comply with its financial obligation(s).
24. In this respect, the Single Judge corroborated that the player had indeed put the club
in default on 19 May 2022, requesting the payment of amounts that had been due for
more than 30 days and also granting the debtor club a deadline of at least 10 days to
remedy the default without the club doing so.
25. Consequently, the Single Judge decided that the club shall be sanctioned in
accordance with art. 12bis of the Regulations. In this respect, the Single Judge referred
to par. 4 of the said provision and decided that, in view of the previous violations
committed by the club during the last 2 years, i.e. the club had been sanctioned for
another violation of the same nature on 3 August 2022 (FPSD-6354), a reprimand
should be imposed on the Respondent club.
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iii. Compliance with monetary decisions
26. 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 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.
27. 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.
28. 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.
29. 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. 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
30. 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.
31. 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.
32. Lastly, the Single Judge concluded its 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, Aleksandr Kleshchenko, is partially accepted.
2.
The Respondent, Ordabasy, has to pay to the Claimant, the following amount:
- KZT 69,511,694 as outstanding remuneration plus 5% interest p.a., as follows:
-
On the amount of KZT 1,898,058, as from 11 January 2021 until the date of
effective payment;
On the amount of KZT 8,500,000, as from 11 May 2021 until the date of effective
payment;
On the amount of KZT 8,500,000, as from 11 June 2021 until the date of effective
payment;
On the amount of KZT 8,500,000, as from 11 July 2021 until the date of effective
payment;
On the amount of KZT 8,500,000, as from 11 August 2021 until the date of
effective payment;
On the amount of KZT 8,500,000, as from 11 September 2021 until the date of
effective payment;
On the amount of KZT 8,500,000, as from 11 October 2021 until the date of
effective payment;
On the amount of KZT 8,500,000, as from 11 November 2021 until the date of
effective payment;
On the amount of KZT 8,113,636, as from 11 December 2021 until the date of
effective payment.
3.
Any further claims of the Claimant are rejected.
4.
A reprimand is imposed on the Respondent.
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 the ban shall be of three entire and consecutive registration periods.
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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 article 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
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
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