DRC Overdue Payables
Texto da decisão
REF FPSD-8933
Decision of the
Dispute Resolution Chamber
passed on 07 March 2023
regarding an employment-related dispute concerning
the player Oleg Murachev
BY:
Alexandra GOMEZ BRUINEWOUD (Uruguay/the Netherlands)
CLAIMANT:
Oleg Murachev, Russia
Represented by Kiryl Maleyeu
RESPONDENT:
FC Kyzylzhar, Kazakhstan
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I. Facts of the case
1.
The relevant parties to this dispute are the Russian player, Oleg Murachev (hereinafter: the
player or the Claimant) and the Kazakhstani club, FC Kyzylzhar (hereinafter: the club or the
Respondent).
First employment contract
2.
On 13 February 2021, the Claimant and the Respondent (hereinafter: the parties) concluded
an employment contract valid as from the same date until 15 November 2021 (hereinafter:
the first employment contract).
3.
According to the first employment contract, the Respondent undertook to pay the Claimant
KZT 1,500,000 net per month.
4.
Clause 1.1 of the first employment contract read as follows: “Under this employment contract,
[the player] undertakes to perform work in his capacity of professional football player for
remuneration, and [the club] undertakes to ensure working conditions, timely and in full to pay
[the player] salary and other payments stipulated by labor legislation of the Republic of
Kazakhstan, this employment contract”.
5.
Clause 5.3 of the first employment contract read as follows: “[The player] is given annual paid
leave in the amount of the basic salary for the 12 months worked for a duration of 28 (twenty-eight)
calendar days, while the leave is granted in accordance with the vacation schedule approved by
[the club], but only between the football seasons. except for cases of participation in the group
stage of the Champions League / Europa League, in this case, [the player] and [the club] will reach
a mutually beneficial agreement on the timing”.
First supplementary agreement
6.
On the same date, the parties signed a supplementary agreement to the first employment
contract (hereinafter: the first supplementary agreement), according to which the club
undertook to pay to the player KZT 2,500,000 net as a bonus in case the club finished in the
local league’s top 7.
Second employment contract
7.
On 10 January 2022, the parties signed concluded a second employment contract (hereinafter:
the second employment contract) valid as from the same date until 6 November 2022.
8.
According to the second employment contract, the Respondent undertook to pay the
Claimant KZT 2,000,000 net per month.
Second supplementary agreement
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9.
On the same date, the parties signed a supplementary agreement to the second employment
contract (hereinafter: the second supplementary agreement), according to which the club
undertook to pay to the player:
a. KZT 2,200,000 net as a bonus in case the club “will take part in any tournaments under
UEFA auspices in season 2023”;
b. KZT 2,200,000 net as bonus in case the player “takes part in matches of UEFA Europa
Conference League in the season of 2022 year”.
Warranty letter
10. On 7 November 2022, the club issued a warranty letter by means of which it stated the
following (hereinafter: the warranty letter):
“[The club] confirms existence of outstanding amounts with respect to the salaries towards you
in following amounts:
1. For January 2022 – 1 777 057 tenge
2. For October 2022 – 2 000 000 tenge
3. For November 2022 – 447 102 tenge
4. Compensation for unused days of annual leave for 2022 year – 1 235 292 tenge
[The club] guarantees closure of the above-mentioned debt on total amount of 7 047 812 (seven
million forty-seven thousand eight hundred twelve) tenge until 1 February 2023.”
11. By the end of the season 2021, the club finished the local league on the 4th position.
12. On July and August 2022, the player was fielded in 2 matches of the club valid for the UEFA
Conference League qualifiers (3rd round).
13. On 15 December 2022, the player put the club in default and requested payment of the KZT
11,662,660 net as indicated below, setting a 10 days’ time limit in order to remedy the default:
“857 142,90 KZT for 16 days of February 2021;
12 000 000 KZT for 8 full months (March-October 2021);
750 000 KZT for 15 days of November 2021;
1 150 000 KZT as compensation for 23days of unused leave (1500000/30*23)
(…)
1 777 057 KZT as salary for 22 days of January 2022;
500 000 KZT as 25% of salary for April 2022;
2 000 000 KZT as salary for October 2022;
447 102 KZT as salary for 6 days of November 2022;
1 533 333,33KZT as compensation for 23 days of unused leave (2640000/30*23)”
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14. On 17 January 2023, the player lodged a claim against the club in front of FIFA and requested
payment of his outstanding remuneration, as follows:
a.
b.
c.
d.
KZT 1,150,985.90 net as balance for the season 2021;
KZT 2,500,000 net as bonus under the first supplementary agreement;
KZT 4,230,435.33 net as balance for the season 2022;
KZT 1,400,000 net as balance for the bonus due to the performance in the UEFA
Conference League in line with the second supplementary agreement;
e. Interest in accordance with Kazakh Law of 20.74% p.a. as from the respective due
dates.
15. As to the interest, the player explained as follows:
“Consequences of breach the deadline to provide the employee with final settlement in case of
its dismissal are clearly established by paragraph 4 of Article 113 of the LCRK (please refer to
Annexes No. 23 and No. 24):
«In case of violation of the terms specified in part one of this paragraph, the employer pays the
employee the debt and penalty for the period of payment delay. The amount of the penalty is
calculated based on the 1.25-fold base interest rate of the National Bank of the Republic of
Kazakhstan on the day of fulfillment of obligations to pay the amounts owed to the employee,
and is accrued for each overdue calendar day, starting from the next day when payments should
be made, and ending with the day of payment.»
As the National Bank of Kazakhstan set the base interest rate at level of 16,75% p.a. (please refer
to Annex No. 26), the Respondent shall additionally pay the Claimant a penalty (interest rate) of
20,94% (16,75*1,25) p.a. from amounts of the overall final settlement under the Contract since
the moment of the above payments became outstanding. Please be informed that such
approach was confirmed by the FIFA DRC in its on case with ref. nr. FPSD-4700 too.”
16. In its reply, the club argued as follows, while filing untranslated evidence of payment:
a. The remuneration for the season 2021 was fully paid;
b. The club acknowledged the debt for KZT 2,500,000 per the first supplementary
agreement, as well as KZT 1,400,000 net for the balance of the second
supplementary agreement;
c. For the season 2022, quoted verbatim:
“(2) 1,777,057 tenge - January salary, 2022 - we dispute January salary, 2022 was paid in two
instalments.
- December 12, 2022, in the amount of 1,000,000 tenge.
- December 22, 2022, in the amount of 777,057 tenge. Thus, the Club has no debts for January.
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(3) 500 000 tenge - we dispute - this amount is a personal monthly allowance.
According to order 155 dated April 29, 2022; this allowance was withheld due to unsatisfactory
results.
(4) 2,000,000 KZT - we dispute - October salary was paid on December 22, 2022. Thus, there is
no arrears for October.
(5) 447,102 thousand - we dispute - November salary. Payment was made in December 2022
(6) Compensation in the amount of 1,533,333.33 tenge. The amount is incorrect, it is 1,526,073
tenge.
Calculation:
According to the employment contract, vacation pay is paid based on the basic salary, which is
1,865,190 tenge gross or 1,500,000 tenge net (paragraph 3.5 of the employment contract). A
player is given 28 calendar days per year. Thus, having worked from January 10 to November 6,
the number of vacation days is 23. The player worked 207 working days.
In case of dismissal on November 6, he will be compensated according to the calendar from
November 7 to November 29, 2022.
There are 18 working days from November 7 to November 29, i.e., 1,865,190 / 22 * 18 =
1,526,073 tenge gross. Net is 1,235,292 tenge.
Also, the compensation payment was made in December 2022.
Thus, the Club is not in arrears with the compensation payment for 2022.”
17. The club additionally made the following remarks:
“1) Based on the above, the correct calculations are confirmed by attached documents presented
by our Club. According to Article 13 paragraph 3 of the FIFA Procedural Rules, any type of
evidence may be produced. All the evidence upon which a party intends to rely must be filed in
the original language and, if applicable, translated into English, Spanish, or French. We shall
submit the evidence in its original language.
2) According to the Labor Code of Republic of Kazakhstan, Article 123 paragraph 4, 8 of the
Labor Code of Republic of Kazakhstan Murachev O. caused the employer direct damage by filed
claims because the player's claims are without merit and abuse from an employee.
According to Article 123 paragraph 8 subparagraph 6) of the Labor Code of Republic of
Kazakhstan states that financial responsibility in the full amount of the damage caused to the
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employer shall be imposed on the employee in the cases specified in the employment contracts
or acts.
In the employment contracts for 2021-2022 of Murachev O. in paragraph 7.4 it is stated that the
employee is fully financially liable to the Employer in cases stipulated by the labor legislation of
the Republic of Kazakhstan (…)
3) The Club substantiates by the above-mentioned calculations that the presented calculations
of Murachev O. are groundless and false.”
18. Upon request of the FIFA general secretariat, the Claimant provided the following comments
as to the proof of payment filed by the Respondent:
“For the sake of good order, we would like to briefly describe and reiterate below amounts that
shall be paid to the Claimant in each of seasons below according to the Statement of Claim
dated 17 January 2023 (the ‘Claim’) filled by the Claimant.
2021 year
1)
KZT 14 757 142,90 as annual amount of the salaries under the Contract (please refer to
point 46of the Claim);
2)
KZT 2 500 000 net as bonus (personal payment) for team performance in domestic
championship (please refer to points 12-13 and 49-50 of the Claim)
Total due: KZT 17 257 142,90 net
The Claimant confirms that he received payments from the Respondent related to 2021 year in
total amount of KZT 13 606 157 (please refer to point 43 of the Claim). Consequently, an amount
of KZT 3 650 985,90 (One million one hundred fifty thousand nine hundred eighty-five tenge, 90
tiyn) remains outstanding and was requested in the Claim.
2022
The following payment shall be paid under the as annual amount of the salaries under the
Contract 2:
1)
KZT 1 777 057 for 22 days of January 2022 (please refer to point 30 of the Claim);
2)
KZT 18 000 000 for 9 full months (February-October 2022) (please refer to point 18 of the
Claim);
3)
KZT 447 102 for 6 days of November 2022 (please refer to point 54 of the Claim);
4)
KZT 1 533 333,33 as compensation for 23 days of unused leave (please refer to points 52
and 54 of the Claim)
Additionally, the Claimant is entitled for the following payments:
1)
KZT 1 400 000 as remaining part of bonus (personal payment) for team performance in
UECL 2022/23 (please refer to points 21-23 and 55-56 of the Claim);
2)
KZT 1 750 000 as compensation for medical services and rehabilitation (please refer to
point 25 of the Claim).
Total due: KZT 24 907 492,33 net
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The Claimant confirms that he received payments from the Respondent related to 2022 year in
total amount of KZT 19 277 057.
Consequently, an amount of KZT 5 630 435,33 (five million six hundred thirty thousand four
hundred thirty five tenge, 33 tiyn) remains outstanding and was requested in the Claim.
Therefore, in total for 2021 and 2022 years, the Respondent still owes the Claimant outstanding
payment in amount of KZT 9 281 421,23 (nine million two hundred eighty-one thousand four
hundred twenty-one tenge, 23 tiyn) net (please refer to point 57 of the Claim).”
II. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
19. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to
as Single Judge) analysed whether she was competent to deal with the case at hand. In this
respect, she took note that the present matter was presented to FIFA on 17 January 2023 and
submitted for decision on 7 March 2023. 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.
20. 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 (October 2022), she is competent
to deal with the matter at stake, which concerns an employment-related dispute with an
international dimension between a Russian player and a Kazakhstani club.
21. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, she 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 17 January 2023, the October 2022 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
22. In this respect, the Single Judge did notice the argumentation of the player with respect to the
applicable law in its interest request, i.e., Kazakhstani law. To this end, the Single Judge
recalled that when deciding a dispute before the Football Tribunal, FIFA’s regulations prevail
over any national law chosen by the parties. In this regard, the main objective of the FIFA
regulations is to create a standard set of rules to which all the actors within the football
community are subject to and can rely on.
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23. In the Single Judge’s view, this objective would not be achievable if the Football Tribunal would
have to apply the national law of a specific party on every dispute brought to it. It is in the
interest of football that the amounts payable under a contract are based on uniform criteria
rather than on provisions of national law that may vary considerable from country to country.
Therefore, the Single Judge found that it is not appropriate to apply the principles of a
particular national law to the issue at stake but rather the Regulations, general principles of
law and, where existing, the Chamber’s well-established jurisprudence.
b. Burden of proof
24. 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, she stressed the wording of
art. 13 par. 4 of the Procedural Rules, pursuant to which she 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
25. The competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, she started by acknowledging all the
above-mentioned facts as well as the arguments and the documentation on file. However, she
emphasised that in the following considerations she will refer only to the facts, arguments
and documentary evidence, which she considered pertinent for the assessment of the matter
at hand.
i. Main legal discussion and considerations
26. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that this is a claim of a player against a club for overdue
payables.
27. According to the player, the club failed to remit him the remuneration for the seasons 2021
and 2022 under the respective contracts, as well as the two bonuses respectively for the final
league standings in 2021 and the UEFA Conference League 2022.
28. The Respondent, for its part, (a) recognized the bonuses due and (b) argued that all amounts
had been paid but a small balance for the 2022 season, however without translation to the
proof of payment filed. On this account, the player, lastly, noted that all payments made by
the club had been accounted for in his statement of claim.
29. The Single Judge underlined that in the case at hand the Respondent bore the burden of
proving that it indeed complied with the financial terms of the contract concluded between
the parties. Nonetheless, she decided that the evidence provided by the Respondent cannot
establish the payment of the amounts claimed as outstanding by the Claimant, in that they
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have not been filed with the corresponding translation in line with art. 13 par. 1 and 3 of the
Procedural Rules, which respectively read:
“1. Any submission to FIFA shall be made in English, Spanish, or French. Any submission to FIFA
not made in one of the aforementioned languages will be disregarded.
(…)
3. Any type of evidence may be produced. A chamber has ultimate discretion as to the weight it
gives to evidence. All the evidence upon which a party intends to rely must be filed in the original
language and, if applicable, translated into English, Spanish or French.”
30. As a consequence, the Single Judge rejected the position of the club as to the payments made
and decided that and in accordance with the general legal principle of pacta sunt servanda to
award the player exactly the amounts claimed.
31. The Single Judge observed that the financial obligations deemed as outstanding in the present
case correspond to the following, which shall be paid by the Respondent to the Claimant:
a.
b.
c.
d.
KZT 1,150,985.90 net as balance for the season 2021;
KZT 2,500,000 net as bonus under the first supplementary agreement;
KZT 4,230,435.33 net as balance for the season 2022;
KZT 1,400,000 net as balance for the bonus due to the performance in the UEFA
Conference League in line with the second supplementary agreement.
32. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Dispute Resolution Chamber in this regard, the Single Judge turned to the issue of the
applicable interest. On this note, the Single Judge observed that the player requested to be
awarded interest of 20.74%. In this respect, the Single Judge highlighted that such claim: (i) is
contractually based; (ii) is supported by documentary evidence; and, most importantly, (iii)
was not challenged by the club.
33. However, the Single Judge note that the player’s requested rate exceeds the maximum
amount allowed in accordance with the jurisprudence of the Football Tribunal. As such, she
decided that the maximum rate of 18% p.a. should apply on the due amounts, as from their
respective due dates until the date of effective payment. Accordingly, she considered that the
due dates in relation to the season 2021 should be the expiry of the relevant contracts/season,
because the breakdown presented by the player did not establish the effective due date of
each concept. As to the season 2022, the same rationale applied except for the outstanding
salaries, which she could determine the relevant due dates on the basis of the claim.
34. For completeness, the Single Judge underlined that the applied interest did not derive from
Kazakhstani law but from the jurisprudence of the Football Tribunal and the lack of challenge
from the club to this end, since as underlined in the relevant section, Kazakhstani law did not
apply to the present proceedings, but the FIFA regulations and the jurisprudence of the
Football Tribunal.
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ii. Article 12bis of the Regulations
35. 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.
36. 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.
37. Accordingly, the Single Judge confirmed that the club had delayed a due payment without a
prima facie contractual basis. It followed that the criteria enshrined in art. 12bis of the
Regulations was met in the case at hand.
38. The Single Judge further established that by virtue of art. 12bis par. 4 of the Regulations she
has competence to 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 a fine of USD 5,000 on the club in accordance with art. 12bis par. 4 lit. c) of the
Regulations.
39. 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
40. 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.
41. 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.
42. 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.
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43. 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.
44. 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
45. 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.
46. 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.
47. Lastly, the Single Judge concluded the deliberations by rejecting any other requests for relief
made by any of the parties.
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III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Oleg Murachev, is partially accepted.
2.
The Respondent, FC Kyzylzhar, has to pay to the Claimant, the following amount(s):
a. KZT 1,150,985.90 net as outstanding remuneration plus 18% interest per annum as from
16 November 2021 until the date of effective payment;
b. KZT 2,500,000 net as outstanding bonus plus 18% interest per annum as from 16
November 2021 until the date of effective payment;
c. KZT 500,000 net as outstanding remuneration plus 18% interest per annum as from 1 May
2022 until the date of effective payment;
d. KZT 1,750,000 net as outstanding remuneration plus 18% interest per annum as from 1
November 2022 until the date of effective payment;
e. KZT 447,102 net as outstanding remuneration plus 18% interest per annum as from 7
November 2022 until the date of effective payment;
f.
KZT 1,533,333.33 net as outstanding remuneration plus 18% interest per annum as from
7 November 2022 until the date of effective payment.
g. KZT 1,400,000 net as outstanding bonus plus 18% interest per annum as from 7
November 2022 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
A fine of USD 5,000 is imposed on the Respondent, to 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-8933:
UBS Zurich
Account number 230-366677.61N (FIFA Players’ Status)
Clearing number 230
IBAN: CH12 0023 0230 3666 7761 N
SWIFT: UBSWCHZH80A
5.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
6.
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:
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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.
7.
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.
8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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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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