Labour Disputes
Texto da decisão
REF. FPSD-9420
Decision of the
Dispute Resolution Chamber
passed on 21 June 2023
regarding an employment-related dispute concerning the player
Abdel Lamanje
BY:
Michele Colucci (Italy)
CLAIMANT:
Abdel Lamanje , France
Represented by Ludovic Deléchat
RESPONDENT:
Shakhter, Kazakhstan
pg. 2
REF. FPSD-9420
I. Facts of the case
1.
On 25 June 2021, the French player, Abdel Lamanje (hereinafter: Claimant or player) and the
Kazakh club, Shakhter (hereinafter: club or Respondent) concluded an employment contract
(hereinafter: contract) valid as from 13 July 2021 until 30 November 2022.
2.
According to the contract, the Respondent undertook to pay the Claimant a monthly salary
of Kazakhstan Tenge (KZT) 1,800,000 net.
3.
On 21 July 2022, the player and the club concluded an agreement, in accordance with which
the parties agreed to mutually terminate contract as of 21 July 2022 (hereinafter:
termination agreement).
4.
According to the termination agreement, the club undertook to pay to the player the
following amounts:
“2. The parties have agreed that the Club, in accordance with clause 7.6 of the Contract pays the
Employee compensation for early termination of the contract is 4 410 000 (four million four
hundred and ten thousand) tenge (“net”).
3. Consider July 21, 2022 as the date of termination of employment
4. The Parties agreed that on the date of termination of the Agreement, the amount payable to
the Employee, excluding the amount specified in paragraph 2 of the Agreement is 13 380 000
(thirteen million three hundred and eighty thousand) tenge “net”.
5. The amounts specified in paragraph 2 and paragraph 4 of the agreement are paid by the
Employer in equal installments until 30.12.2022.”
5.
On 19 December 2022, according to the player, the club acknowledged owing the player
the total sum of KZT 11,167,833 net, however, “once again, the Club did not pay anything to
the Player until today.”
II. Proceedings before FIFA
6.
On 27 February 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 Claimant
7.
According to the player, the club failed to remit the claimed amounts agreed to as per the
termination agreement.
8.
The requests for relief of the player, were the following:
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REF. FPSD-9420
(a) The Respondent shall be obliged to pay to the Claimant the amount of Tenge 11,167,833 net as
outstanding remuneration, plus interest at a rate of 5% p.a. over said amount, as from the
relevant due dates until the effective date of payment.
(b) The Respondent shall be obliged to pay to the Claimant the amount of Tenge 283,233 as
reimbursement of the flight ticket to travel back to France.
(c) The Respondent shall be sanctioned in accordance with article 12bis par. 4 of the FIFA
Regulations on the Status and Transfer of Players.
b. Position of the club
9.
In its reply, the club confirmed that it owed the outstanding remuneration to the player as
claimed, but it was not liable to pay the flight ticket expenses to the player.
10. The requests for relief of the club were the following:
(a) Claimant's claim Lamanje Abdel Aziz Ngapout accept in part.
(b) FC Shakhtar, is to pay the Claimant, Mr. Lamanje Abdel Aziz Ngapout, the amount of KZT
11,167,833 net as outstanding consideration plus 5% per annum on the said amount from the
date of payment to the date of actual payment.
(c) Claimant's further claims are dismissed.
pg. 4
REF. FPSD-9420
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
11. 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 27 February
2023 and submitted for decision on 21 June 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.
12. 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 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 France and a club from
Kazakhstan.
13. 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 2023 edition), and
considering that the present claim was lodged on 27 February 2023, the October 2022
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
14. 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
15. 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.
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REF. FPSD-9420
i. Main legal discussion and considerations
16. 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 21 July 2022.
17. 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.
18. The Single Judge noted that in its submission, the club did not contest that the outstanding
remuneration is due to the player, but it argued that it was not liable to pay the flight ticket
expenses as claimed.
19. In this context the Single Judge referred to the provisions of the termination agreement
and mentioned that the parties failed to agree to the payment of flight expenses as part of
the terms of the said agreement, hence the Single Judge decided to reject this part of the
player’s claim.
20. 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.
21. 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.
22. 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
23. 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.
24. 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 11,167,833 net.
pg. 6
REF. FPSD-9420
25. 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 30 December 2022.
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 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.
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.
30. 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
31. 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.
32. 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.
pg. 7
REF. FPSD-9420
33. Lastly, the Single Judge concluded his deliberations by rejecting any other requests for relief
made by any of the parties.
pg. 8
REF. FPSD-9420
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Abdel Lamanje , is partially accepted.
2.
The Respondent, Shakhter, must pay to the Claimant the following amount(s):
- KZT 11,167,833 net as outstanding remuneration plus 5% interest p.a. as from 30
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.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 9
REF. FPSD-9420
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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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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