Labour Disputes
Texto da decisão
REF FPSD-6324
Decision of the
Dispute Resolution Chamber
passed on 7 December 2022
regarding an employment-related dispute concerning the player Nodirbek Mavlonov
BY:
Jorge Gutierrez (Costa Rica)
CLAIMANT:
Nodirbek Mavlonov, Uzbekistan
Represented by Manuel Illanes Boguszewski
RESPONDENT:
Persik Kediri, Indonesia
REF FPSD-6324
I. Facts of the case
1.
On 24 April 2022, the Uzbek player, Nodirbek Mavlonov (hereinafter: the Claimant), was contacted
via Instagram by a Mr. Alle Gaucho, an intermediary of the Respondent (hereinafter: the
intermediary), with an invitation to come play in Indonesia.
2.
On 27 April 2022, the intermediary informed the Claimant that the Indonesian club, Persik Kediri
(hereinafter: the Respondent) is interested in his services and he would join the team from around
mid-May 2022.
3.
On 29 April 2022, the Respondent sent an offer letter (hereinafter: the offer) to the Claimant.
4.
On 1 May 2022, the offer was signed by the Claimant which, included the following conditions:
“With below condition:
1. Salary contract: USD 4500 (Forty Thousand US Dollars) / month all based on current exchange (IDR
14.000) equivalent to IDR 63.000.0000 (Sixty Three Million Rupiahs)
2. Down payment: 20% from total salary
3. Contract duration: 10 months starting June 1st 2022 until March 30th 2023 what until the end
of Liga 1 2022/2023
4. Facilities:
House
Car
visas and kitas
economic class return flight ticket for two persons with the route from Uzbekistan to Indonesia
bonus goal: IDR 3.000.000
bonus assist : IDR 2,000,000
agency fee USD 4500
The job of again being withdrawn at any time by the club, if:
The results of the PCR swab were declared positive for COVID-19 or other reasons (lockdown etc) so players
failed to go to Indonesia
The results of the general checkup is found that there is any injury or any other reason that caused the
player to not be able to play again
Failed to pass all the legal and administrative requirements validation of PS I and /or LIB
legal 12022 cannot be implemented for any reasons
REF FPSD-6324
In the case of the occurrence of .4 above, the player, on behalf of himself and or his representatives, agrees
to release and discharges the club from any form of liabilities to the player and or his representative.
With signing this letter, the player has agreed upon the above points and the player and or his
representatives will not conduct any negotiation or sign with any other football club”
5.
On 10 May 2022, the Claimant was informed by the intermediary that the Respondent no longer
required his services “as they have found another player for the same position.”
6.
On 22 May 2022, the Claimant sent a letter to the Respondent, inter alia, stipulating the following:
“Taking into consideration the above, and bearing in mind that your club is significantly out of time to
comply with the described duties towards Mr. Mavlonov, the Player is forced to submit you a final notice
for you to comply with your contractual obligations. Please note that this is the Player’s last resort as he
already tried to settle the matter amicably.
Showing his good faith, the Player is still willing to perform his contractual obligations and demands to
join the Club as a professional Player under the promised conditions. Subsidiarily, the Player demands to
be paid USD 45,000 (forty-five thousand US dollars) for ten months as residual value of the agreement
due to your unilateral termination plus USD 9,000 (nine thousand US dollars) as down payment plus the
agency fee of USD 4,500 (four thousand five hundred US dollars), totalling USD 58,500 (fifty-eight
thousand five hundred USD dollars).
Therefore, we would kindly request the amendment of its breach of contract by Monday, 6th June 2022,
23:59 CET. Otherwise, the Player will be forced to start a legal proceeding before FIFA as he will understand
that the agreement is terminated, which may cause legal and procedural costs to your Club.”
7.
On 8 and 10 June 2022, the Claimant informed the Respondent that as “no actions were taken by the
Club to remedy the severe breaches, we regret to inform you that the Player, in good faith, cannot be
expected to continue the employment relationship with Persik Kediri due to a serious breach of trust. The
Player is forced to terminate the agreement with immediate effect despite his efforts to continue the
relationship in good faith.”
8.
On 1 November 2022, the Claimant concluded an employment contract with the club, Sheikh Jamal
Dhanmondi Club, from Bangladesh valid from 1 November 2022 until the end of the 2022/2023
season, entitling him to a monthly salary of USD 2,000.
II. Proceedings before FIFA
9.
On 10 June 2022, the Claimant filed the claim at hand before FIFA. A brief summary of the position
of the parties is detailed in continuation.
REF FPSD-6324
a.
Position of the Claimant
10. According to the Claimant, he accepted/signed the offer on 1 May 2022 and therefore, the
withdrawal of such offer by the Respondent took place after the acceptance.
11. The Claimant, moreover, argued that the intermediary has a close relationship with the Respondent
as demonstrated over a significant period and in this regard the Claimant mentioned that “it is
important to clarify that despite the effort of the intermediary to protect the Club not providing any
evidence that demonstrates that a Club representative submitted him the document, the authenticity nor
its acceptance by the Player was never denied neither by Mr. Gaucho neither by Persik Kediri.”
12. On 10 June 2022, the Claimant lodged a claim before FIFA requesting that the Respondent is ordered
to pay him the total amount of USD 58,500 corresponding to the following:
-
USD 45,000 for ten months as residual value of the agreement due to your unilateral termination
-
USD 9,000 as down payment
-
USD 4,500 (four thousand five hundred US dollars) as agency fee
-
to grant interest at 5% per annum (five percent per annum) on the amounts stipulated
-
to bear all legal fees incurred by the player in connection with this matter
-
to grant any further or other relief that the Tribunal may deem fit.
b.
Position of the Respondent
13. In its reply, the Respondent mentioned the following:
“ 1. In the 2022/2023 Liga 1 Pre-Season, Persik Kediri made preparations by recruiting several new players
2. In this activity, we communicated and got offers for new players with several player agents, on of which
ALLE GAUCHO whose real name is A. MIFTAKHUL HUDA with National Identity Number 3524231401870002
3. ALLE GAUCHO is a THIRD PARTY who is an intermediary and has no legal ties to Persik Kediri or an official
representative of Persik Kediri
4. Regarding a player named NODIRBEK MAVLONOV from Uzbekistan, it is true that he was one of the players
offered to us as well as other players offered by the other agents
5.We provide a valid and official Offer Letter if a player is selected
6. Valid and Official in question are signature of the Managing Director and the Club’s Official Stamp
7. However, in the event that the player is on behalf of NODIRBEK MAVLONOV, Persik Kediri has never issued
a legal and official offer letter, so we believe that the signature of the Managing Director and the Club’s
Official Stamp were not found in the letter
8. As for the Offer Letter given to the player, it is confirmed that it is the initiative and personal release of
ALLE GAUCHO
9. We also clarify the club’s official email for correspondence is [email protected] and not
[email protected]
10. So that if a player on behalf of NODIRBEK MAVLONOV or a party that represents him legally sends a
message to the email, of course there will be no reply because we don/t use it and it’s not right if block
accounts from relate parties
REF FPSD-6324
11. We also found claim of several communications from NODIRBEK MAVLONOV or parties who legally
represent him with several social media accounts and we confirm that these account do not belong to
Persik Kediri or Party Officially appointed as part of Persik Kediri
12. Based on the chronology of the points above, it is proven that there was no official statement or Offer
Letter submitted by the Club Management to the player on behalf of NODIRBEK MAVLONOV
13. Therefore, we reject the demands of the players according to the facts we have presented”
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
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 10 June 2022 and submitted for decision on
7 December 2022. Taking into account the wording of art. 34 of the October 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.
2.
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 October 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
Uzbek player and an Indonesian club.
3.
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 (October 2022 edition), and considering that the
present claim was lodged on 10 June 2022, the March 2022 edition of said regulations (hereinafter:
the Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
4.
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.
5.
Merits of the dispute
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
REF FPSD-6324
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
6.
The foregoing having been established, the Single Judge noted that the parties’ first fundamental
disagreement relates to whether the offer presented by the Respondent and signed by the Claimant
on 1 May 2022 can be considered a valid and binding employment contract.
7.
The Single Judge further noted that the Claimant considered the offer to be valid and binding which
was submitted to him by the intermediary on behalf of the Respondent.
8.
The Single Judge observed that the Respondent, as opposed to the Claimant, confirmed that the
Claimant was one of the players “offered” to it but argued that the intermediary with whom the
Claimant was in correspondence with is not an official representative of the Respondent, hence no
official offer was submitted to the Claimant on behalf of the Respondent.
9.
In this context, the Single Judge acknowledged that his task was to determine whether the alleged
offer established a valid and binding employment contract and if so whether the Respondent was
in breach of the terms of the offer.
10. In view of the foregoing, the Single Judge started by recalling its well-established jurisprudence which
dictates that, in order for an employment contract to be considered as valid and binding, it should
contain the essentialia negotii of an employment contract, such as the parties to the contract and
their role, the duration of the employment relationship and the remuneration payable by the
employer to the employee.
11. In casu, after a thorough analysis of the documentation on file, the Single Judge concluded that all
such elements were included in the document filed by the Claimant. In other words, the Single Judge
understood that the legal document in the matter at hand (i.e., the offer) indeed included all the
relevant information at the basis of which an employment relationship could be established
between the parties. Specifically, the document provides for the duration of the employment
relationship, subordination of the employee to the employer, the remuneration payable to the
Claimant and consent. Moreover, it clearly indicates that the Claimant is employed as a footballer
with the Respondent.
12. Furthermore, in relation to the offer, the Single Judge remarked that the Respondent argued that
the intermediary was not an official representative of the Respondent, hence not authorised to
submit an offer on its behalf. Said argument from the Respondent can – in the opinion of the Single
Judge – not be upheld, as from the information on file, it could be concluded that the Claimant in
good faith believed that the intermediary was authorised to act and negotiate on behalf of the
Respondent, while making the offer to him.
REF FPSD-6324
13. On account of the above, the Single Judge concluded that the offer is in fact a valid and binding
employment contract and shall be considered in the case at stake, as the contractual basis of the
present dispute.
14. Following the foregoing circumstances, the Single Judge concluded that the Claimant and the
Respondent, on 1 May 2022, entered into a valid and binding employment agreement, which came
into effect as from 1 June 2022 until 30 March 2023.
15. Lastly, the Single Judge deemed that the contract was de facto terminated by the Respondent on 10
May 2022 (the day the Claimant was informed that his services are no longer required), accordingly, it
concluded that such termination of the contract occurred without just cause.
ii. Consequences
16. 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.
17. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, and in
particular that no salaries were yet paid by the Respondent to the Claimant, the Single Judge decided
that the Respondent shall be held liable to pay compensation to the Claimant.
18. Having stated the above, the Single Judge turned to the calculation of the amount of compensation
payable to the Claimant by the Respondent in the case at stake. In doing so, the Single Judge firstly
recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the amount of compensation
shall be calculated, in particular and unless otherwise provided for in the contract at the basis of the
dispute, with due consideration for the law of the country concerned, the specificity of sport and
further objective criteria, including in particular, the remuneration and other benefits due to the
player under the existing contract and/or the new contract, the time remaining on the existing
contract up to a maximum of five years, and depending on whether the contractual breach falls
within the protected period.
19. In application of the relevant provision, the Single Judge held that he first of all had to clarify as to
whether the pertinent employment contract contained a provision by means of which the parties
had beforehand agreed upon an amount of compensation payable by the contractual parties in the
event of breach of contract. In this regard, the Single Judge established that no such compensation
clause was included in the employment contract at the basis of the matter at stake.
20. As a consequence, the members of the Single Judge determined that the amount of compensation
payable by the Respondent to the Claimant had to be assessed in application of the other
parameters set out in art. 17 par. 1 of the Regulations. The Single Judge recalled that said provision
provides for a non-exhaustive enumeration of criteria to be taken into consideration when
calculating the amount of compensation payable.
REF FPSD-6324
21. Bearing in mind the foregoing as well as the claim of the Claimant, the Single Judge proceeded with
the calculation of the salaries payable to the Claimant under the terms of the contract from the date
of its unilateral termination until its end date. Consequently, the Single Judge concluded that the
amount of USD 45,000 (i.e., residual value of the contract – 1 June 2022 until 30 March 2023) serves
as the basis for the determination of the amount of compensation for breach of contract.
22. In continuation, the Single Judge verified as to whether the Claimant had signed an employment
contract with another club during the relevant period of time, by means of which he would have
been enabled to reduce his loss of income. According to the constant practice of the Chamber as
well as art. 17 par. 1 lit. ii) of the Regulations, such remuneration under a new employment contract
shall be taken into account in the calculation of the amount of compensation for breach of contract
in connection with the Claimant’s general obligation to mitigate his damages.
23. Indeed, the Claimant found employment with the club, Bangladesh Sheikh Jamal Dhanmondi Club.
In accordance with the pertinent employment contract, the Claimant was entitled to USD 2,000 per
month, valid from 1 November 2022 until 31 July 2023 - end of the 2022/2023 season. Therefore, the
Single Judge concluded that the Claimant mitigated his damages in the total amount USD 10,000,
that is USD 2,000 times five.
24. Subsequently, the Single Judge referred to art. 17 par. 1 lit. ii) of the Regulations, according to which
a player is entitled to an amount corresponding to three monthly salaries as additional
compensation should the termination of the employment contract at stake be due to overdue
payables. In the case at hand, the Single Judge confirmed that the contract termination did not take
place due to said reason i.e., overdue payables by the club – the contract was indeed terminated by
the Respondent, hence it decided that the Claimant shall not be entitled to receive additional
compensation.
25. Consequently, on account of all of the above-mentioned considerations and the specificities of the
case at hand, the Single Judge decided that the Respondent must pay the amount of USD 35,000 to
the Claimant (i.e., USD 45,000 minus USD 10,000), which was to be considered a reasonable and
justified amount of compensation for breach of contract in the present matter.
26. Lastly, taking into consideration the Claimant’s request as well as the constant practice of the Single
Judge in this regard, the latter decided to award the Claimant interest on said compensation at the
rate of 5% p.a. as of 10 June 2022 i.e., date of claim until the date of effective payment.
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 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.
REF FPSD-6324
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 his deliberations by rejecting any other requests for relief made
by any of the parties.
REF FPSD-6324
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Nodirbek Mavlonov, is partially accepted.
2.
The Respondent, Persik Kediri, has to pay to the Claimant, the following amount(s):
- USD 35,000 as compensation for breach of contract without just cause plus 5% interest p.a. as
from 10 June 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
REF FPSD-6324
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).
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