Labour Disputes
Texto da decisão
REF. FPSD-10233
Decision of the
Dispute Resolution Chamber
passed on 13 July 2023
regarding an employment-related dispute concerning
the player Kadeem Raymond MATHURIN-HARRIS
BY:
Michele Colucci (Italy), Single Judge of the DRC
CLAIMANT:
Kadeem Raymond MATHURIN-HARRIS, England
RESPONDENT:
FC METALIST KHARKIV, Ukraine
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REF. FPSD-10233
I. Facts of the case
1.
On 20 September 2021, the English player, Kadeem Raymond MATHURIN-HARRIS
(hereinafter: the player or the Claimant) and the Ukrainian club, METALIST KHARKIV
(hereinafter: the club or the Respondent) concluded an employment contract (hereinafter:
the contract), valid as from the date of its signature until 30 June 2022.
2.
Clause 5.2.3 (first paragraph) of the contract reads as follows: “5.2.3’ : ‘’In case the team
enters Ukrainian Premier League, on condition that the Professional football player took part in
50% of playing time of the main team during the season, the Club pays the Professional football
player a bonus of $ 150 000,00 (One hundred fifty thousand United States of America dollars
NET) in the equivalent amount of UAH, at the official Exchange rate of NBU (National Bank of
Ukraine) on the date of payment, excluding taxes and other obligatory payments until 31 July
2022’’.
II. Proceedings before FIFA
a. Position of the Claimant
3.
On 16 May 2023, the player lodged a claim against the club before FIFA, requesting to be
awarded outstanding remuneration in the amount of USD 150,000 net as Promotion Bonus
(hereinafter: Promotion Bonus), plus 5% interest p.a. as from 31 July 2022 until the date of
effective payment.
4.
In his claim, the player argued that, on 24 February 2022, due to the Russian invasion of
Ukraine, the Executive Committee of the Football Federation of Ukraine decided to
suspend the competition and that, at that moment in time, the club was in the first position
in the stage of the “Persha League”, which “would give the right to directly promote to the
Ukrainian Premier League”.
5.
The above being said, an in order to support his allegation that he is entitled to the
Promotion Bonus, the player explained the following:
6.
-
“Club’s playing time: Club(main team) has played 11 League and 2 Cup games. Totally its
equal to 13 official games and 1170 playing minutes;
-
Player’s playing time: As can be checked from Kadeem Harris’s attached transfermarkt
profile Kadeem harris played all the official games with main team which is equal to total
13 official games (11 league+ 2 cup games) and 606 playing minutes”.
In this context, the Claimant maintained that he played more than 50% of playing time of
the main team and that the club promoted to Ukrainian Premier League, i.e. the 2
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REF. FPSD-10233
conditions precedent to the club’s obligation to pay the Promotion Bonus took place. In
spite of the above, the player explained that he was not paid the Promotion Bonus even
though it “is obvious that [the] player clearly contributed [for the] club to be promoted and
take the first stage to promote directly”.
b. Position of the Respondent
In its reply, the club argued – inter alia – the following:
7.
-
That the requirements, according to which the Respondent is obliged to pay to the player
the Promotion Bonus “are not separate from each other, but are in a close and inseparable
connection: 1) entry to the UPL, 2) taking part in 50% of the playing time on the field in the
main squad”.
-
Thus, continued the Respondent, “the need to spend more than 50% of the playing time on
the field in those matches of the season that give an opportunity to enter the UPL, and
therefore to fulfill the second requirement of the Contract, is indisputable. Such matches are
only matches of the Professional Football League (hereinafter - PFL)”.
That, according to “the data from the official website of the PFL (appendix 1), since 09/20/2021
the Player has played 11 matches for FC Metalist, and accordingly 486 minutes, which is less
than 50% of the playing time, and therefore the provisions of Clause 5.2.3 of the Contract do not
apply to the Player”.
8.
c. Rejoinder of the Claimant
9.
In his rejoinder, the Claimant maintained the following:
-
That the Respondent wrongly argues that official cup matches cannot count as official
league matches and, therefore, the playing time of 50% to which clause 5.2.3 (first
paragraph) of the contract refers was not reached by the Claimant.
-
In this respect, the Claimant argues that, as per the said clause, “the playing time of the
main team condition also covers the official cup matches” In this regard, the Claimant held
that, in the clause, “there is no statement that playing time would cover only official league
matches” and that, therefore, “all official matches should be in consideration when
calculating the Promotion bonus”.
-
In this context, the Claimant reiterated his request for relief.
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REF. FPSD-10233
d. Final comments of the Respondent
10. Despite having been invited to provide its final comments in connection with the present
dispute, the Respondent failed to do so.
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 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 16 May 2023 and
submitted for decision on 13 July 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 (May 2023 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 player from
England and a club from Ukraine.
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 (May 2023 edition) and
considering that the present claim was lodged on 16 May 2023, the March 2023 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).
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REF. FPSD-10233
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.
i. Main legal discussion and considerations
16. The above being established, the Single Judge moved to the substance of the matter and
recalled that the allegations of the Claimant have remained undisputed, considering that
the Respondent failed to provide its final comments, despite having been invited to do so.
17. In addition, the Single Judge emphasized that In addition, the claim of the Claimant finds a
contractual basis in clause 5.2.3, which contemplated 2 conditions precedent to the
obligation of the Respondent to proceed with the payment of the Promotion Bonus in the
amount of USD 150,000 net: 1.) the team entering Ukrainian Premier League (which is not
disputed by the Respondent in its reply to the claim); and 2.) the player taking part in 50%
of playing time of the main team during the season (which was disputed by the Respondent
in its reply to the claim and not thereafter, as the club failed to present its final comments).
18. In this context, the Single Judge pointed out that the Claimant has provided sufficient
evidence of having participated in more than 50% of the games played by the Respondent
during the 2021/2022 season. In this regard, the Single Judge underscored that the
argument of the Claimant needs to be upheld: insofar as clause 5.2.3 of the contract does
not make any differentiation as to which kind of matches fall within the definition of “playing
time” as to trigger the payment of the Promotion Bonus, in application of the legal principle
in dubio contra proferentem, the Single Judge determined that not only official league
matches must be considered, but also any other official matches (such as cup matches).
ii. Consequences
19. Thus, it having been established that the Claimant played in more than 50% of the official
games played by the club during the 2021/2022 season and that the Respondent was
promoted to Ukrainian Premier League, the Single Judge decided that the Respondent shall
be ordered to pay to the Claimant the amount of USD 150,000 net as Promotion Bonus, in
accordance with the legal principle: pacta sunt servanda.
20. 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% p.a. on the amount of USD 150,000 net as from 1 August 2022 until the date
of effective payment.
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REF. FPSD-10233
iii. Compliance with monetary decisions
21. 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.
22. 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.
23. 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.
24. 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.
25. 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
26. 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.
27. 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.
28. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
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REF. FPSD-10233
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Kadeem Raymond MATHURIN-HARRIS, is accepted.
2.
The Respondent, FC METALIST KHARKIV, must pay to the Claimant the following amount(s):
- USD 150,000 net as outstanding remuneration plus 5% interest p.a. as from 1 August
2022 until the date of effective payment.
3.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
4.
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.
5.
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.
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REF. FPSD-10233
6.
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 Governing the Football
Tribunal).
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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