DRC Overdue Payables
Texto da decisão
REF. FPSD-11311
Decision of the
Dispute Resolution Chamber
passed on 14 September 2023
regarding an employment-related dispute concerning the player Mykola
Kovtaliuk
BY:
Jorge Gutiérrez, Costa Rica
CLAIMANT:
Mykola Kovtaliuk, Ukraine
RESPONDENT:
FC Shakhter, Kazakhstan
pg. 2
REF. FPSD-11311
I. Facts of the case
1.
The parties to the dispute are the Ukrainian player, Mykola Kovtaliuk (hereinafter: the
Claimant or the player), and the Kazakhstani club, FC Shakhter (hereinafter: the Respondent
or the club).
2.
On 10 January 2022, the Claimant and the Respondent concluded an employment contract
(hereinafter: the contract), valid as from the same date until 30 November 2022, with an
option to further extend it until 30 November 2023, which however was not exercised.
3.
Under the contract, the Respondent undertook to pay to the Claimant KZT 1,500,000 net
per month as salary.
4.
Clause 9 of the contract reads as follows:
“9. CONSIDERATION OF LABOUR DISPUTES
9.1. In case of a dispute between the Parties, it shall be settled through direct
negotiations.
9.2. If the dispute between the Parties is not resolved, then it is subject to resolution
by the jurisdictional bodies of the KFF (if the [Claimant] is a citizen of the Republic
of Kazakhstan) or the jurisdictional bodies of FIFA (if the [Claimant] is a foreign
citizen).
9.3. In case of disagreement with the decision of the jurisdictional authorities
referred to in p. 9.2, the Parties shall apply for dispute resolution to the Court of
Arbitration for Sport in Lausanne (hereinafter referred to as the “CAS”) in
accordance with the CAS Code. The competence of CAS to consider the relevant
dispute between the Club and the [Claimant] is determined in accordance with the
CAS Code and the legislation of the country where CAS is located. The decision of
CAS in a dispute between the Parties is final.
9.4. The Parties undertake to comply with the effective decisions of the
jurisdictional bodies of the KFF and FIFA, as well as CAS”.
5.
Annexe 2 to the contract states as follows:
“Bonus payments
1. In accordance with the provisions of Paragraph 3 of the employment agreement
(hereinafter referred to as the “Agreement”), the Parties agreed on the terms and
conditions and procedure of paying bonuses to the [Claimant] for achieved sports
results:
pg. 3
REF. FPSD-11311
1.1. The [Claimant] who duly fulfills his obligations under the employment agreement
is entitled to the following bonus payments in the 2022 season:
- for the team’s home win – by decision of the administration of the [Respondent];
- for the team’s away win – by decision of the administration of the [Respondent];
- for the away match ended in a draw – by decision of the administration of the
[Respondent].
2. The [Respondent] undertakes to pay the [Claimant] a monthly amount of money
from sponsorship funds in proportion to the time worked in the following amount:
- 2,860,000 (two million eight hundred sixty thousand) tenge ("net").
2. The [Respondent] establishes for the [Claimant] a lump-sum payment in the
amount of 600,000 (six hundred thousand) tenge (“nett”), which is paid by 10.03.2022.
3.The following individual bonus is established for the [Claimant]:
3.1. If the main team of the [Respondent] based on the results of the game season
wins the right to participate in the UEFA Conference League, Europa League, and the
player takes part in 70 (seventy)% of the matches of the main team of the Club, the
[Respondent] undertakes to pay the [Claimant] a personal bonus in the amount of
2,180,000 (two million one hundred and eighty thousand) tenge (“nett”), which shall
be paid by 30 December 2022.
3.2. for 10 (ten) goals scored in the Championship of the Republic of Kazakhstan in
the 2022 season – 4,360,000 (four million three hundred and sixty thousand) tenge
"nett", which is paid to the [Claimant] by 30.12.2022.
3.3. If the main team of the [Respondent] based on the results of the game season,
takes the 1st place in the Championship of the Republic of Kazakhstan among the
teams of the Premier League in 2022, and the player takes part in 70 (seventy)% of the
matches of the main team of the Club, the [Respondent] undertakes to pay the
[Claimant] a personal bonus in the amount of 3,000,000 (three million) tenge (“nett”),
which is paid to the [Claimant] by 30 December 2022.
The Parties agreed that for the purposes of applying this clause, only matches of the
Football Championship of the Republic of Kazakhstan among the Premier League
teams are taken into account.
4. The [Respondent] establishes a lump-sum payment to the [Claimant] in the
amount of 6,000,0000 (six million) tenge (“nett”), which is paid to the [Claimant] by
10.05.2022.”
pg. 4
REF. FPSD-11311
6.
By correspondences dated 29 May 2023 and 9 June 2023, the Claimant put the Respondent
in default of payment of KZT 4,792,815 as the unpaid portion of his remuneration under
the contract. In the second default notice, the player granted the club a deadline of 10 days
to cure its breach, to no avail.
II. Proceedings before FIFA
7.
On 11 August 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
8.
9.
In his claim, the player argued as follows:
-
The Respondent breached the terms and conditions of the contract by failing to pay
the Claimant the final settlement and other arrears upon his dismissal.
-
The Respondent violated the Labour Code of Kazakhstan by not making the payment
within three working days after the termination of the contract.
-
The Respondent did not provide the Claimant with a copy of the order on termination
of the contract or a calculation of the amount of the debt, as required by the contract
and the law.
-
The Claimant tried to resolve the dispute amicably by sending two written requests
to the Respondent, but received no response or payment.
-
The Claimant has the right to seek redress before FIFA based on a clause in the
contract that explicitly opts for FIFA jurisdiction in case of any unresolved dispute.
The Claimant requested the following relief:
“1. To acknowledge the fact of violation by the Respondent of the terms and conditions
of the employment agreement in respect of non-payment of the final settlement under
the employment agreement upon dismissal of the Claimant.
2. To oblige the Respondent to pay the Claimant the arrears under the employment
agreement in the amount of 4,792,815 (four million seven hundred ninety-two
thousand eight hundred and fifteen) in the currency of Kazakhstan (tenge).
3. To compel the Respondent to pay the Claimant additionally to the arrears amount
5 % p.a. as of the due dates until the date of effective payment.
pg. 5
REF. FPSD-11311
4. To compel the Respondent to additionally pay the Claimant compensation for his
expenses for legal support of the application to the FIFA Dispute Resolution Chamber
in the amount of 499,040 (four hundred ninety-nine thousand and forty) tenge, which
is equivalent to 1,000 (one thousand) Euros.
10. Upon request of the FIFA general secretariat, the player provided the following table as to
the breakdown of the amounts sought:
Period
2022
Amount of
debt (KZT)
Grounds
Sum paid
(KZT)
Date of
payment
January
2 843 478,25
p.3.1. Contract +
p.2 Annex No.2
978 260, 87
24.02.2022
February
3 451 666,66
p.3.1. Contract +
p.2 Annex No.2
1 187 500,00
18.03.2022
Lump-sum
payment
600 000,00
p.2 Annex No.2
March
4 360 000,00
p.3.1. Contract +
p.2 Annex No.2
1 500 000,00
13.04.2022
April
4 360 000,00
p.3.1. Contract +
p.2 Annex No.2
1 500 000,00
05.05.2022
Lump-sum
payment
6 000 000,00
p.4 Annex No.2
May
4 360 000,00
p.3.1. Contract +
p.2 Annex No.2
4 729 384,04
19.05.2022
June
4 360 000,00
p.3.1. Contract +
p.2 Annex No.22
1 500 000,00
08.06.2022
July
4 360 000,00
p.3.1. Contract +
p.2 Annex No.2
1 500 000,00
13.07.2022
August
4 360 000,00
p.3.1. Contract +
p.2 Annex No.2
1 500 000,00
2 860 000,00
2 860 000,00
17.08.2022
22.08.2022
24.08.2022
September
4 360 000,00
p.3.1. Contract +
p.2 Annex No.2
1 500 000,00
2 860 000,00
05.09.2022
12.09.2022
October
4 360 000,00
p.3.1. Contract +
p.2 Annex No.2
1 500 000,00
11 440 000,00
3 000 000,00
07.10.2022
28.10.2022
28.10.2022
November
1 932 815,20
p.3.1. Contract +
p.2 Annex No.2
3 000 000,00
1 500 000,00
04.11.2022
07.11.2022
TOTAL:
49 707 960,11
Debt:
4 792 815, 20
44 915 144,91
b. Position of the Respondent
pg. 6
REF. FPSD-11311
11. In its reply, the Respondent admitted to owe the player KZT 4,790,228.84 as of the date the
claim was lodged, however it sustained that on 29 August 2023 it made a payment of KZT
1,000,000 to the player, and therefore it argues that its debt amounts to KZT 3,790,228.84.
12. The club also rejected the player’s claim for legal costs on the grounds of art. 25, par.1 of
the Procedural Rules Governing the Football Tribunal.
13. The Respondent filed the following request for relief:
“Based on the foregoing, Respondent hereby requests FIFA DRC to make the following
decision:
1.
Accept the claim of the Claimant Mykola Kovtalyuk in part.
2.
The Respondent, FC Shakhter, is to pay the Claimant, Mr. Mykola Kovtalyuk,
the amount of KZT 3,790,228.84 net as outstanding consideration plus 5% per annum
on the specified amount from the date of payment to the date of actual payment.
3.
Claimant's further claims are dismissed.”
c. Comments of the Claimant on payments made by the club
14. Upon request of the FIFA general secretariat, the player confirmed receipt of KZT 1,000,000
on 29 August 2023 and stated that the debt towards him amounts to KZT 3,790,228.84. He
further insisted that his legal costs be reimbursed by the club per his original statement of
claim.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
15. 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 11 August 2023
and submitted for decision on 14 September 2023. 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.
16. 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 (May 2023
edition), he is competent to deal with the matter at stake, which concerns an employment-
pg. 7
REF. FPSD-11311
related dispute with an international dimension between an Ukrainian player and a
Kazakhstani club.
17. 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 11 August 2023, the same edition of said
regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
18. 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
19. The 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.
i. Main legal discussion and considerations
20. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that, following the confirmation of receipt of KZT
1,000,000 on 29 August 2023 by the Claimant, it stands undisputed that he is owed KZT
3,790,228.84, in line with the submissions of the Respondent – which shall as a
consequence be awarded in line with the principle pacta sunt servanda.
21. 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 over the due amounts. From the calculations provided by the player however, and
given the irregular payments made by the club, the Single Judge deemed that it is
impossible to reconstruct to which concepts the outstanding balance applies, and thus the
calculation of the interest is also not possible to reconstruct entirely.
pg. 8
REF. FPSD-11311
22. As such, the Single Judge decided that the Respondent must pay interest of 5% p.a. on the
balance due as from one day the natural expiry of the contract (i.e., 1 December 2022) until
the date of effective payment.
ii. Article 12bis of the Regulations
23. In continuation, the Single Judge referred to art. 12bis par. 2 of the Regulations, which
stipulates that any club found to have delayed a due payment for more than 30 days
without a prima facie contractual basis may be sanctioned in accordance with art. 12bis
par. 4 of the Regulations.
24. To this end, the Single Judge confirmed that the player put the club in default of payment
of the amounts sought, which had fallen due more than 30 days before, and granted the
club a 10-day deadline to cure such breach of contract.
25. Accordingly, the Single Judge confirmed that the club had delayed a due payment without
a prima facia contractual basis. It followed that the criteria enshrined in art. 12bis of the
Regulations was met in the case at hand.
26. The Single Judge further established that by virtue of art. 12bis par. 4 of the Regulations he
can impose sanctions on the club. On account of the above and bearing in mind that this
is the 3rd offense by the club within the last two years, the Single Judge decided to impose
fine of USD 1,000 on the club in accordance with art. 12bis par. 4 lit. c) of the Regulations.
27. In this connection, the Single Judge highlighted that a repeated offence will be considered
as an aggravating circumstance and lead to a more severe penalty in accordance with art.
12bis par. 6 of the Regulations.
iii. Compliance with monetary decisions
28. 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.
29. 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.
30. 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
pg. 9
REF. FPSD-11311
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.
31. 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.
32. 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
33. 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 Chamber decided that no procedural costs were to be
imposed on the parties.
34. 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 – thus, the request of the Claimant in this respect was
rejected.
35. Lastly, the Single Judge concluded the deliberations by rejecting any other requests for
relief made by any of the parties.
pg. 10
REF. FPSD-11311
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Mykola Kovtaliuk, is partially accepted.
2.
The Respondent, FC Shakhter, must pay to the Claimant the following amount:
- KZT 3,790,228.84 as outstanding remuneration plus 5% interest p.a. as from 1 December 2022
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.
A fine in the amount of USD 1,000 is imposed on the Respondent, which must be paid to FIFA
within 30 days of notification of this decision. Such fine must be paid to the following bank
account with a clear reference to the case FPSD-11311:
UBS Zurich
Account number 230-366677.61N (FIFA Players’ Status)
Clearing number 230
IBAN: CH12 0023 0230 3666 7761 N
SWIFT: UBSWCHZH80A
8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 11
REF. FPSD-11311
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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pg. 12