Labour Disputes
Texto da decisão
REF FPSD-5680
Decision of the
Dispute Resolution Chamber
passed on 18 May 2022
regarding an employment-related dispute concerning the player Uladzislau
Kryvitski
BY:
Johan van Gaalen (South Africa), Single Judge of the DRC
CLAIMANT:
Uladzislau Kryvitski, Belarus
Represented by Kiryl Maleyeu
RESPONDENT:
FC Kyran Shymkent, Kazakhstan
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REF FPSD-5680
I.
Facts of the case
1.
On 1 March 2021, the parties concluded an employment contract, valid as from 1 March
2021 until 31 October 2021. In accordance with clause 3.1 of the contract, the club
undertook to pay to the player, inter alia, a monthly salary of KZT 700,000 (approx.: USD
1,500).
2.
Clause 3.4 of the contract reads as follows: “All payments due to the Employee and reflected
in the text of this employment contract are indicated net taking into account without/with
(underline right one) deduction of taxes and other mandatory payments provided for by the
laws of the Republic of Kazakhstan”.
3.
Clause 5.2 of the contract reads as follows: “The Employer provides the Employee with a
basic paid annual leave of 28 days (no less than 28 calendar days – this is obligation regarding
minimal requirements of the player’s standard contract in sector of professional football
within EU and other UEFA territory) calendar days. By agreement between the Parties, paid
annual leave may be divided into parts. In this case, one of the parts of the paid labour leave
must be at least two calendar weeks of the duration of the leave provided for in this
paragraph”.
4.
Also on 1 March 2021, the parties concluded an annexe to the contract (hereinafter: the
Annexe), in accordance with which the club undertook to pay to the player a conditional
remuneration (bonuses), as follows:
- In case of participation of the player in more than 50% of a match, the player would
receive the following remuneration:
-
5.
KZT 150,000 in case of winning a game “in home matches”;
KZT 150,000 in case of winning a game “in away matches”;
KZT 100,000 in case of “draw in away matches”;
KZT 180,000 in case of winning a game “in international matches”.
By means of his letter dated 21 March 2021, the Claimant put the Respondent in default of
payment in the amount of KZT 2,943,333, thereby granting the Respondent a 10 days’
deadline to remedy the default; however, to no avail.
II. Proceedings before FIFA
a. Position of the Claimant
6.
On 5 April 2022, the player lodged a claim against the club before FIFA, requesting to be
awarded KZT 2,943,333 as outstanding remuneration, plus interest of 16.87% p.a. (interest
rate calculated by the Claimant taking as basis the alleged applicable interest rate of the
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National Bank of Kazakhstan) on the amounts due as from their respective due dates until
the date of effective payment, broken down by the Claimant as follows:
- KZT 700,000 as salary of October 2021;
- KZT 443,333 corresponding to the unused paid leave, due ex. clause 5.2 of the contract,
calculated by the Claimant himself on a pro-rata basis;
- KZT 1,800,000 as bonuses (see table displayed here below*).
7.
In his claim, the Claimant argued that, despite having complied with his contractual
obligations, the club has failed to comply with its financial obligations towards him, failing to
pay his salary of October, unused paid leave and bonuses. In particular, the Claimant
explained that “the Respondent’s management asked to wait until the season end to cover
the total amount of incentive in single lump payment”. The Claimant further explained that,
on the last day of the contract, “when the final settlement of all payments due to the
Claimant shall be done, the Respondent’s management kindly asked to provide them grace
period to execute their financial obligations in form of severance including salary for October
2021, compensation for unused leave as well as bonuses in line of Annex 1 to the Contract”.
The Claimant explained that the grounds provided by the club for the delay in the payment
were the “decreasing funding of the Respondent from local government due to failure to
promote to the Premier League”; however, the Claimant held that the Respondent never
proceeded with the payment of the amounts due.
8.
In connection with the bonuses requested*, the Claimant provided the following information
of having participated in 13 games (during more than 50% of the time played), which would
allow him to receive the total amount of KZT 1,800,000 as bonuses:
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b. Position of the Respondent
9.
On its part, the Respondent acknowledged being in default of payment of an amount of KZT
884,097 in connection with the salary of October 2021 and the unused paid leave, disputing
the entitlement of the player to receive KZT 1,143,333 for those considerations (see that the
Claimant requests KZT 700,000 and KZT 443,333, which equals KZT 1,143,333) on the
grounds that the amounts payable to the player as per the contract -contrary to the
allegations of the Claimant- are gross and not net.
10. As evidence of the aforementioned, the Respondent provides documentation in Kazakh,
arguing that the actual salary of the player was lower than KZT 700,000.
11. In connection with the bonuses claimed by the Claimant, the Respondent held that it “does
not agree” with any entitlement of the Claimant to request bonuses, insofar as his salary
contains every monetary compensation, including bonuses.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
12. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter referred to as the
Single Judge) analysed whether it was competent to deal with the case at hand. In this
respect, he took note that the present matter was presented to FIFA on 5 April 2022 and
submitted for decision on 18 May 2022. 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.
13. 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 (March 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 Belarusian player and a Kazakhstani club.
14. 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 (March 2022 edition) and
considering that the present claim was lodged on 5 April 2022, the March 2022 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
15. 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
16. Its 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
17. The foregoing having been established, the Single Judge moved to the substance of the
matter and recalled that this is a case where the Claimant requests to be awarded outstanding
remuneration in the total amount of KZT 2,943,333, plus 16% interest p.a., corresponding
to the salary of October 2021, the unused paid leave (19 days calculated by the Claimant
himself on a pro-rata basis) and match bonuses. On its part, the club acknowledged being in
default of the amount of KZT 884,097 as salary of October 2021 and unused paid leave,
however disputing his entitlement to bonuses.
18. Concerning the amount claimed as salary of October 2021, the Single Judge noted that: 1.)
the contract states that the player’s monthly salary amounts to KZT 700,000 net (the
underlined part of the clause in writing not sufficing to establish that the salary was to be
paid gross); 2.) the club is basing its allegation that the salary payable was lower on bank
checks that have been provided in Kazakh without any translation thereof into one of the 4
official FIFA languages (thus, in accordance with art. 13.5 of the Procedural Rules, the
Respondent has not met its burden of proof to demonstrate that the player’s salary was not
KZT 700,000, as stated in the contract). Hence, determined the Single Judge, it is to be
considered that the monthly salary of the player was KZT 700,000 net.
19. In connection with the amount of KZT 443,333, claimed as unused paid leave ex. clause 5.2
of the contract, the Single Judge concluded that the allegations of the Claimant are to be
followed, but not his calculation.
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20. Having established that the player’s monthly salary amounts to KZT 700,000 and that the
player provided his services for the club for 8 months, the player shall be entitled to KZT
435,556 as unused paid leave (correct calculation: (700,000*28)/30 = 653,333 ; (653,333/12)
* 8 = 435,556).
21. In connection with the amount of KZT 1,800,000 requested by the Claimant as match
bonuses, it is to be noted that the latter is entitled to receive match bonuses in accordance
with the wording of the Annexe and the allegations of the club that the salary of the player
already includes his entitlement to match bonuses cannot be followed (the Single Judge
further noted that even the club provides a copy of the Annexe, which content the club now
intends to challenge – page 13 of its statement of reply).
22. In this respect, considering that there is a contractual basis in the Annexe for the Claimant to
receive the bonuses claimed and that the latter has met its burden of proof by providing
evidence of having played (won and drawn) in 13 home and away matches, the Single Judge
determined that the Claimant is entitled to receive the amount of KZT 1,800,000 for this
consideration.
ii. Consequences
23. Having stated the above, the Single Judge turned their attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
24. In this context, the Single Judge determined that the Claimant is entitled to receive
outstanding remuneration in the total amount of KZT 2,935,556 net in accordance with the
general legal principle of pacta sunt servanda.
25. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Chamber in this regard, the Single Judge decided to award the Claimant interest at
the rate of 5% interest p.a. as from 1 November 2021, i.e. the date following the expiration
of the contract - considering the lack of due date for the payment of the unused paid leave
and the bonuses, the Single Judge decided that every payment should have been made, the
latest, by the date of expiration of the contract.
26. The above being said, the Single Judge determined that any further claim of the Claimant is
rejected (including the request to be provided interest at the rate of 16.87% p.a. – in view of
the well-established jurisprudence of the Chamber to grant default interest at the rate of 5%
p.a., except for cases where default interest has been contractually agreed at a higher rate
(with the limit of 18% p.a.), which is not the case in the present dispute).
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iii. Compliance with monetary decisions
27. 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.
28. 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.
29. 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.
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 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
32. 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.
33. 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.
34. 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, Uladzislau Kryvitski, is partially accepted.
2.
The Respondent, FC Kyran Shymkent, has to pay to the Claimant outstanding remuneration
in the amount of KZT 2,935,556 net, plus 5% interest p.a. as from 1 November 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. 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.
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 article 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of
Players.
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7. 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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