Labour Disputes
Texto da decisão
REF FPSD-2465
Decision of the
Dispute Resolution Chamber
passed on 19 August 2021
regarding an employment-related dispute concerning the player Marco Obradovic
COMPOSITION:
Clifford Hendel (USA & France), Deputy Chairman
Roy Vermeer (The Netherlands), member
Pavel Pivovarov (Russia), member
CLAIMANT:
Marco Obradovic, Serbia
RESPONDENT:
FC Okzhetpes, Kazakhstan
Page 2
REF FPSD-2465
I. Facts
1.
On 1 February 2020, the parties concluded an employment contract valid as from the date of
signature until 9 November 2020.
2.
According to art. 3.1 of the contract, the player was entitled to a monthly salary of KZT 5,556,000
“without taking into account withholding taxes and other mandatory Payments”, payable within
the first 10 days of the following month.
3.
Art. 3.5 of the contract stipulated the following:
“3.5. The Employer independently calculates, withholds and transfers taxes and other mandatory
payments from the Employee's income provided for by the legislation of the Republic of Kazakhstan
and received during the period of validity of this employment contract.”
4.
Art. 3.8 of the contract stipulated the following:
“3.8. Payment for downtime for reasons beyond the control of the Employer and the Employee is
set at no less than the minimum wage and it is paid within the terms stipulated by the legislation
of the Republic of Kazakhstan.”
5.
On 24 February 2020, the parties signed a “supplementary agreement”, stipulating the following:
“Insert into Article 10 «Validity term of the Contract» clause 10.4 stating the following: «the present
employment contract shall be valid till 9 November 2020, in case the football team has the right to
participate in a «play-off match» for promotion to the Championship of the Republic of Kazakhstan
of the 2021 season, the employment contract shall be extended till 21 November 2020·.
6.
A document issued by the club and confirming that the contract of the player expired on 9
November 2020 is available in TMS (Transfer reference 367752).
7.
On 15 March 2020, the Republic of Kazakhstan issued a Decree, by means of which it declared the
state of emergency in view of the COVID-19 pandemic.
8.
On 18 March 2020, the Professional League of Kazakhstan recommended all clubs to stop all
trainings.
9.
The club issued an undated letter stating that, from 16 March 2020 until 15 April 2020, because of
a cause “beyond reasonable control of the Employer the salary shall be established in the amount
of 50% of the monthly salary of the Employee”.
10. On 7 April 2021, the player sent a default notice, granting 10 days to settle the following:
“the Club has failed to pay to the Player: balance of his March 2020 salary of net KZT 1,250,000.00,
which matured on 10/4/2020, and balance of his April 2020 salary of net KZT 2,500,000.00, which
matured on 10/5/2020, and balance of his May 2020 salary of net KZT 2,500,000.00, which matured
on 10/6/2020, and his October 2020 salary of net 5,000,000.00, which matured on 10/11/2020, and
his November 2020 salary along with the Paid Work Leave in net total of KZT 5,000,000.00, which
matured on 10/12/2020; which overdue payables calculate together to a net total of KZT
16,250,000.00”
Page 3
REF FPSD-2465
11. On 14 April 2021, the club replied as follows:
“The club inform you that the employment contract between Mr. Marko Obradovic (hereinafter The
Player) was expired November 9, 2020.
Because of difficult financial situation the Club did not payed (sic) the full salary to the Player. The
debt to the player is 6 641 8:W.05 KZT net (2 739 l 08,05 KZT net is compensation of unused vacation
and 3 902 712,00 KZT is debt of the salary of July and 7 work days of November 2020). We attached
to this letter pay sheet for the whole period.
Due to the difficult financial situation, the Club undertakes to pay this debt no later than August
15, 2021.
The club also reminds to the Player that it was dawn (sic) time periods for reasons beyond the control
of the employer and employee. due to the coronavirus pandemic COVID-19 and the state of
emergency in Kazakhstan. So in the period of March 16 till June I, 2020 and July 4 till August 8. 2020
the: salary of every workers (sic)" of the Club was 50%.”
12. On 6 May 2021, the Claimant lodged a claim before FIFA and requested the payment of the
following amounts:
KZT 16,250,000 as outstanding remuneration, plus 5% interest p.a. as from the due dates, detailed
as follows:
- Balance of his March 2020 salary of net KZT 1,250,000, which matured on 10/4/2020,
- Balance of his April 2020 salary of net KZT 2,500,000, which matured on 10/5/2020,
- Balance of his May 2020 salary of net KZT 2,500,000, which matured on 10/6/2020,
- Full July 2020 salary of net KZT 5,000,000, which matured on 10/8/2020,
Pro rata sum of salary for period from 1 November 2020 until 21 November 2020 (i.e. KZT
2,260,891.95) along with Paid Work Leave (i.e. KZT 2,739,108.05) of net total KZT 5,000,000, which
matured on 10/12/2020.
13. In its reply to the claim, the Respondent acknowledged a debt of KZT 6,641,820.05, of which “2 739
108,05 KZT net is compensation of unused vacation, 2 500 200 KZT is debt of the salary of July and
1 400 112 KZT is the debt of 9 days of November 2020.”
14. The club stated that it will pay this amount by no later than 15 August 2021.
15. Moreover, the club explained that the player’s remuneration was reduced by 50% during the period
comprised between March until May 2020, in line with “the legislation of the Republic of
Kazakhstan, contracts (point 3 .8), [and] the economic situation of the club”.
16. The club argued that the decrease of 50% of the salary was equal for all its employees.
17. The club further explained that it does not agree that the contract expired on 21 November 2020,
“because the additional agreement is not valid”, since “the club didn’t play play-off match”. The
club provided evidence in this regard.
Page 4
REF FPSD-2465
II. Considerations of the Dispute Resolution Chamber
1. First of all, the Dispute Resolution Chamber (hereinafter also referred to
as Chamber or DRC) analysed whether it was competent to deal with the case at hand.
Taking into account the wording of art. 21 of the January 2021 edition of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber (hereinafter: the Procedural Rules), the aforementioned edition of the
Procedural Rules is applicable to the matter at hand.
2. Subsequently, the
Dispute
Resolution
Chamber referred to art.
3
par.
1 of the Procedural Rules and emphasised that, in accordance with art. 24 par. 1
in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players, the Dispute Resolution Chamber is competent to deal with matters which
concern employment-related disputes with an international dimension between players
and clubs, such as the present one, which involves a Serbian player and a Kazakh club.
3. In continuation, the Dispute Resolution Chamber analysed which edition of the
Regulations of the Status and Transfer of Players should be applicable to the present
matter. In this respect, the Dispute Resolution Chamber confirmed that in accordance
with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players, and
considering the date when the claim was lodged, the February 2021 edition of the
aforementioned regulations (hereinafter: the Regulations) is applicable to the matter
at hand.
4. With the above having been established, the Dispute Resolution Chamber entered into
the substance of the matter. In doing so, it started by acknowledging the facts of the
case as well as the documents contained in the file. However, the Dispute Resolution
Chamber emphasized that in the following considerations it will refer only to facts,
arguments and documentary evidence which it considered pertinent for the assessment
of the matter at hand.
5. In this respect, the Chamber noted that, on 1 February 2020, the parties concluded an
employment contract valid as from the date of signature until 9 November 2020, by
means of which the Claimant was entitled to a monthly salary of KZT 5,556,000 “without
taking into account withholding taxes and other mandatory Payments”, i.e. KZT 5,556,000
net.
6. Subsequently, the Chamber observed that the Claimant lodged a claim against the
Respondent, by means of which he requested the payment of the following outstanding
amounts:
KZT 16,250,000 as outstanding remuneration, detailed as follows:
- Balance of his March 2020 salary of net KZT 1,250,000, which matured on 10/4/2020,
- Balance of his April 2020 salary of net KZT 2,500,000, which matured on 10/5/2020,
- Balance of his May 2020 salary of net KZT 2,500,000, which matured on 10/6/2020,
- Full July 2020 salary of net KZT 5,000,000, which matured on 10/8/2020,
Page 5
REF FPSD-2465
Pro rata sum of salary for period from 1 November 2020 until 21 November 2020 (i.e.
KZT 2,260,891.95) along with Paid Work Leave (i.e. KZT 2,739,108.05) of net total KZT
5,000,000, which matured on 10/12/2020.
7. On the other hand, the Chamber acknowledged the position of the Respondent, who
acknowledged a debt of KZT 6,641,820.05, while noting that the player’s remuneration
was reduced by 50% within the context of the outbreak of the COVID-19 pandemic and
during the period comprised between March until May 2020, in line with “the
legislation of the Republic of Kazakhstan, contracts (point 3 .8), [and] the economic
situation of the club”.
8. In view of the discrepancy between the parties, the Chamber understood that the legal
matter at stake is to determine [whether the club had any valid reason to reduce the
player’s salary between March until May 2020][whether the club’s unilateral 50%
reduction of the player’s salary between March until May 2020 was lawful].
9. In this respect, and referring to the difficulties caused by the pandemic, the Chamber
first referred to the FIFA COVID-19 Guidelines and the FIFA COVID-19 FAQ.
10. With this framework in mind, the Chamber noted that, based on the contents of the
FIFA COVID-19 Guidelines and the FIFA COVID-19 FAQ, FIFA did not declare that, per se,
the COVID-19 outbreak was a force majeure situation in any specific country or territory,
or that any specific employment or transfer agreement was impacted by the concept of
force majeure. In other words, in any given dispute, it is for a party invoking force
majeure to establish the existence of said event under the applicable law/rules as well
as the consequences that derive in connection thereto. The analysis of whether a
situation of force majeure existed has to be considered on a case by-case basis, taking
into account all the relevant circumstances.
11. In addition, the Chamber considered pertinent to recall the contents of art. 12 of the
Procedural Rules, according to which “3. Any party claiming a right on the basis of an
alleged fact shall carry the burden of proof. During the proceedings, the parties shall
submit all relevant facts and evidence of which they are aware at that time, or of which
they should have been aware if they had exercised due care”.
12. In application of the aforementioned provision, the Chamber observed, however, that
the club did not specifically address or document any specific situation of force majeure.
13. Within this context, the Chamber wished to underline that, following the FIFA COVID19 Guidelines, unilateral decisions to vary agreements will only be recognized where
they are made in accordance with national law or are permissible within CBA structures
or another collective agreement mechanism. Where clubs and employees cannot reach
an agreement and national law does not address the situation or collective agreements
with a players’ union are not an option or not applicable, unilateral decisions will only
be recognized where they were made in good faith, are reasonable and proportionate.
The Chamber further noted that said framework further establish that, when assessing
whether a decision is reasonable, the DRC or the PSC may consider, without limitation:
a. whether the club had attempted to reach a mutual agreement with its employee(s);
Page 6
REF FPSD-2465
b. the economic situation of the club;
c. the proportionality of any contract amendment;
d. the net income of the employee after contract amendment;
e. whether the decision applied to the entire squad or only specific employees.
14. In this regard, and despite having argued that the reduction was made in accordance
with “the legislation of the Republic of Kazakhstan”, the Club failed to provide the
relevant legislation on which the reduction was supposedly based and therefore, in
accordance with art. 12 par. 3 of the Procedural Rules, did not meet its burden of proof
to establish that it lawfully reduced the player’s salary with 50% between March and
May 2020. For the sake of good order, in relation to the criteria quoted in point II. 13 a.
above, the Chamber noted that, from the information on file, there is also no evidence
on whether the club had attempted to reach a mutual agreement with its employee. In
fact, the Chamber observed that the club only made a unilateral decision without trying
to reach an agreement.
15. In view of all the aforementioned circumstance, the Chamber established that the
Respondent could not validly justify the unilateral variation of the contract, and
therefore it shall remunerate the player as initially foreseen in the contract.
16. Consequently, the Chamber established that the Respondent should pay to the Claimant
the remaining part of the salaries of March, April and May 2020 (i.e. KZT 1,250,000 +
KZT 2,500,000 + KZT 2,500,000).
17. In relation to the salary of July 2020, the Chamber noted that the club acknowledged
half of the debt for this month. However, the Chamber observed that the Respondent
did not provide any evidence of partial payment. Therefore, the Chamber established
that the Claimant is entitled to his entire salary of July 2020, i.e. KZT 5,556,000.
18. Moreover, the Chamber also observed that Claimant requested the “pro rata sum of
salary for period from 1 November 2020 until 21 November 2020”.
19. In relation to said request, the Chamber recalled that the contract was valid as from the
date of signature until 9 November 2020.
20. In this respect, the Chamber further noted that the club sufficiently justified that the
contract indeed ended on 9 November 2020, and also noted that an additional
document in TMS would also confirm this circumstance.
21. As a result, the Chamber established that the player should receive his salary pro rata,
for 9 days of November 2020, which is also acknowledged by the club, i.e. KZT 1,400,112.
22. Furthermore, as to the requested payment for unused vacation, the Chamber confirmed
that the club further acknowledged a debt of KZT 2,739,108.05 net for unused vacation,
and therefore decided to award this sum.
23. In sum, the Chamber summarized that the total amount due by the Respondent to the
player amounts to KZT 15,945,220.05 (i.e. KZT 1,250,000 + KZT 2,500,000 + KZT
2,500,000+ 5,556,000 + KZT 1,400,112 + KZT 2,739,108.05).
Page 7
REF FPSD-2465
24. Consequently, in strict application of the principle of pacta sunt servanda, the Dispute
Resolution Chamber established that the Respondent has to pay to the Claimant the
total outstanding amount of KZT 15,945,220.05 net, as agreed in the contract.
25. In this respect, the Chamber further wished to underline that said amounts are net, as
established in art. 3.1 of the contract.
26. Moreover, taking into account the request of the Claimant as well as the longstanding
jurisprudence in this regard, the Dispute Resolution Chamber decided to award 5%
interest p.a. over said amount as from the due date.
27. Furthermore, taking into account the previous considerations, the Dispute Resolution
Chamber referred to par. 1 and 2 of art. 24bis 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 Dispute Resolution Chamber pointed out 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 and for the maximum duration of three entire and consecutive
registration periods.
29. Therefore, bearing in mind the above, the Dispute Resolution Chamber decided that, in
the event that the Respondent does not pay the amounts due to the Claimant within
45 days as from the moment in which the Claimant, following the notification of the
present decision, communicates the relevant bank details to the Respondent, a ban
from registering any new players, either nationally or internationally, for the maximum
duration of three entire and consecutive registration periods shall become effective on
the Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.
30. Finally, the Dispute Resolution Chamber 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. 24bis par. 3 of the Regulations.
Page 8
REF FPSD-2465
III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Marco Obradovic, is partially accepted.
2.
The Respondent, FC Okzhetpes, has to pay to the Claimant, the outstanding amount of
KZT 15,945,220.05 net, plus interest as follows:
- 5% interest p.a over the amount of KZT 1,250,000 as from 11 April 2020 until the date of effective payment;
- 5% interest p.a over the amount of KZT 2,500,000 as from 11 May 2020 until the date of effective payment;
- 5% interest p.a over the amount of KZT 2,500,000 as from 11 June 2020 until the date of effective payment;
- 5% interest p.a over the amount of KZT 5,556,000 as from 11 August 2020 until the date of effective payment;
- 5% interest p.a over the amount of KZT 1,400,112 as from 11 December 2020 until the date of effective payment;
- 5% interest p.a over the amount of KZT 2,739,108.05 as from 10 November 2020 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 article 24 bis of the Regulations on the Status and Transfer of Players if full
payment (including all applicable interest) is not paid 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 paid by the end of the 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 bis paragraphs 7 and 8 and article 24ter of the Regulations on
the Status and Transfer of Players.
7. This decision is rendered without costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Page 9
REF FPSD-2465
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 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 20 of the Procedural Rules).
CONTACT INFORMATION:
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
Page 10