Labour Disputes
Texto da decisão
REF 20-00933
Decision of the
Dispute Resolution Chamber
Passed on 14 January 2021,
regarding an employment-related dispute concerning the player Ramazan Orazov
COMPOSITION:
Geoff Thompson (England), Chairman
Michelle Colucci (Italy), member
Bin Mohamed Muzammil (Singapore), member
CLAIMANT / COUNTER-RESPONDENT:
FC KAIRAT, Kazakhstan
Represented by Mr. Paolo Lombardi and Mr. Ian Laing
RESPONDENT 1 / COUNTER-CLAIMANT:
RAMAZAN ORAZOV, Kazakhstan
Represented by Ms. Anastasia Soldatova
RESPONDENT 2:
FC DAUGAVPILS, Latvia
Represented by SILA Lawyers
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I.
FACTS OF THE CASE
1.
On 29 February 2016, the Kazakh club, FC Kairat (hereinafter: Kairat or the club) and the
Kazakh player, Ramazan Orazov (hereinafter: the player) concluded an employment
contract, which was subject of 3 different renewals, the last of which occurred on 1 April
2019 according to which the parties renewed their contractual relationship until 28
February 2021 (hereinafter: the contract).
2.
Clause 2.2.7 of the contract states as follows: “2.2 Employee shall be obliged to: (…) during
periods between football seasons and during periods when football matches are not held
in accordance with the calendar of competitions, on the basis of the Employer’s Act,
conduct individual training to keep the game form in strict accordance with the program of
individual training”
3.
Clause 2.2.11 of the contract provides, as one of the player’s obligations, the following:
“[to] keep and maintain own health, a high physical (athletic) form and observe the rest
and recovery regime, including when out of season, competition and training process
(outside working hours)”.
4.
Clause 2.6.14 of the contract states that “2.6. The employer shall have the right to establish
an individual mode of work for the Employee to maintain the game form on the basis of
the instructions of Head Coach in accordance with the sub-item 2.2.7. of this Employment
agreement”.
5.
Clause 3.1 of the contract provides the following: “The monthly salary under this
Employment agreement of the Employee from 01 April 2019 until the expiry of this
Employment agreement is equal to 837,500 (eight hundred thirty-seven thousand five
hundred) tenge and consists of the basic salary and personal allowance, which do not
include taxes and other mandatory payments to the budget of the Republic of Kazakhstan”.
6.
Clause 3.2 of the contract provides the following: “The monthly salary for this Employee’s
Employment agreement from January 01, 2020 until the expiration of this Employment
agreement, if the Employee has played (fielded) more than 50% of the official matches of
the Premier League team in the sports season, and also showed in official matches and in
the training process, high skill and discipline, and did not allow violation of labor discipline,
is 1 200 000 (one million two hundred thousand) tenge, and consists of basic salary and
personal allowances, which do not include taxes and other mandatory payments to the
budget”.
7.
Clause 3.3 of the contract provides the following: “The monthly 3.3. The monthly salary for
this Employee’s Employment agreement from January 01, 2021 until the expiration of this
Employment agreement ,if the Employee has played (fielded) more than 50% of the official
matches of the Premier League team in the sports season, and also showed in official
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matches and in the training process, high skill and discipline, and did not allow violation of
labor discipline, is 1,600,000 (one million six hundred thousand) tenge, and consists of basic
salary and personal allowances, which do not include taxes and other mandatory payments
to the budget”.
8.
Clause 3.6 of the contract states that: “Basic salary is a fixed part, which is 75% of the
amount of labor remuneration, paid in proportion to the time worked by the Employee,
and cannot be less than the minimum monthly salary established by the legislation of the
Republic of Kazakhstan”.
9.
Clause 3.7 of the contract provides that: “Personal allowance is a monthly supplement to
the basic salary at a rate of up to 25% of the amount of labor remuneration, paid in order
to stimulate the improvement of the quality of work and increase the responsibility of the
Employees for the performance of their duties”.
10.
Clause 3.8 of the contract states that: “The basic salary of the Employee, calculated in
accordance with the internal documents of the Employer is: 1) 628 125 (six hundred twenty
eight thousand one hundred twenty five) tenge - if the monthly wage of the Employee is
837,500 (eight hundred thirty seven thousand five hundred) tenge; 2) 900,000 (nine
hundred thousand) tenge – in case if the monthly wage of the Employee is 1,200,000 (one
million two hundred thousand) tenge; 3) 1 200 000 (one million two hundred thousand)
tenge in case if the monthly wage of the Employee is 1 600 000 (one million six hundred
thousand) tenge”.
11.
Clause 3.9 states that: “The personal allowance is established for the Employee in the
following amount: 1) 209,375 (two hundred nine thousand three hundred seventy-five)
tenge - if the monthly wage of the Employee is 837,500 (eight hundred thirtyseven
thousand five hundred) tenge; 2) 300,000 (three hundred thousand) tenge - if the monthly
wage of the Employee is 1,200,000 (one million two hundred thousand) tenge; 3) 400,000
(four hundred thousand) tenge - if the monthly wage of the Employee is 1,600,000 (one
million six hundred thousand) tenge”.
12.
Clause 6.3 states that: ”In accordance with the Regulations of the KFF/FIFA on status and
transfer of players, in case of a significant non-fulfillment / violation of requirements of the
Employment agreement, Internal Regulations, internal normative documents of the
Partnership and labor legislation of the Republic of Kazakhstan by Employee, the Employer
can terminate this Employment agreement unilaterally without payment of compensation
with the right to claim compensation for damage suffered by the Employer.
13.
Furthermore, clause 6.4 of the contract provides the following: “In case of termination of
the Agreement by the Employer as stated in the clause 6.3. of the Employment agreement,
or in the event of early termination of the Employment agreement by the Employee in the
absence of a violation of the Employment agreement and the legislation of the Republic of
Kazakhstan by the Employer, the Employee is obliged to pay the Employer compensation in
the amount of 3 000 000 (three million) euros”.
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14.
Equally, clause 6.5 of the contract provides that: “In case of interest from another football
club in the Employee, the transfer amount (the buyout fee) must be at least 3 000 000
(three million) euros. The Employee will take all necessary measures to properly inform the
interested club about the transfer amount provided for in this paragraph. Obligations
provided for by this clause shall remain in force in the event of an early termination of the
Employment agreement by the Employee in order to transfer to another club. In this case,
when the Employee concludes an Employment agreement with another football club within
6 months after the early termination of the Employment agreement with the Employer, it
is considered that the Employee intentionally terminated the Employment agreement”.
15.
Clause 6.8 of the contract provides as follow: “In accordance with Regulations of the KFF,
the FIFA on the Status and Transfers of players, in the event of early termination of this
Employment agreement by the Employer in the absence of violation of the Employment
agreement and legislation of the Republic of Kazakhstan by the Employee, the Employer
sends a notice of termination 7 (seven) calendar days before the expected termination date
and produces payment of compensation to the Employee for early termination in the
amount of: 1 monthly salary in case the contract expires in 6 months, 2 salaries in the case
of e whether the contract expires in 12 months, and so on. The Employer undertakes within
5 (five) calendar days from the date of termination of this Employment agreement to inform
the Professional Football League of Kazakhstan in writing of the termination of this
Employment agreement. Termination of this Employment agreement is issued by the Act of
the Employer. A copy of the Employer’s act on termination of the Employment agreement
is given to the Employee or sent to him by letter with a notification within three days”.
16.
According to the information available in the Transfer Matching System (TMS), the seasons
in Kazakhstan:
a. Ended on 31 October 2019 for the 2019 season;
B. Started on 1 March 2020 and ended 30 November 2020 for the 2020 season.
17.
By means of a letter dated 16 January 2020, the club informed the player via a written
notice that he would be training individually, as decided by the head coach, in application
of clauses 2.2.7, 2.7.4 and 2.6.14 of the contract, in view of the fact that the player’s fitness
and physical condition had allegedly dropped. The club explained that the player would be
accompanied by a coach of the club and that the player was to start such training on 20
January 2020. The letter further states that the training would last until 6 March 2020. The
player signed such letter and stated “I have received, but I don’t agree”.
18.
On 19 January 2020, the player wrote to the club, and objected to the assigned training
schedule on the grounds that such had no sporting reason and that it was being imposed
as a disciplinary sanction. The player furthermore stated inter alia the following: “At the
beginning of January 2020, in a personal conversation with The Club’s management, I was
informed that the Club objects to the fact that the Club’s players could have Agency
contracts, and therefore I had to terminate my Agency contract with Ultimate Sports
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agency. After my refusal to terminate the Agency contract, I was informed by means of the
Club’s notification of 16 January 2020 (hereinafter – «the Notification») that the Club’s
Head Coach had prepared an individual training plan under supervision of the Club’s Coach
for me, for the period 20.01.2020 – 06.03.2020, training session of which would be held
at 13A Magnitnaya street, where the Club’s Academy is located”.
19.
On 20 January 2020, the club wrote to the player and indicated that the individual training
plan was not a disciplinary penalty, but rather imposed by the Head Coach of the club and
aimed at improving the player’s fitness.
20.
On 23 January 2020, the player once again wrote to the club and reiterated his position,
requesting the club to cancel his individual training schedule.
21.
On 7 February 2020, the player put the club in default, continuing to oppose the individual
training and requesting payment of part of his salary that was withheld, detailing that “on
6 February 2020, I received only 628,223 (six hundred and twenty-eight thousand two
hundred and twenty-three) tenge from the Club. I also didn’t get any explanations from the
Club about this. Thus, given that the Club withheld a part of my salary, as well as it has not
yet canceled my individual training plan, failing to provide me with any explanation for these
actions, it becomes obvious that the Club is putting pressure on me to force me to terminate
my Agency contract, which undoubtedly violates my rights and legitimate interests,
jeopardizing the successful continuation of my sports career”. The player granted the club
a deadline until 10 February 2020 to “eliminate the violations”.
22.
By means of its letter dated 12 February 2020, the club informed the player that he had not
been selected by the head coach to receive the personal allowance of January 2020 and
informed the player about the following:
“Based on the instructions of the Head Coach (in accordance with clauses 2.2.7.of
[contract], the [club] has the right to establish an individual training regime for the
Employee to maintain the game form.
Using its rights and fulfilling its duties, the [club] provides the [player] with work at the
place of work performance stipulated by the LA (sub clauses 2.7.4. and clause 1.7. of
[contract].
In turn, the [player] is obliged to fulfill labor duties in accordance with the [contract], acts
of the [club] and comply with the requirements of the Internal Regulations and other
internal regulatory documents of the [club], strictly adhere to the training process, observe
labor discipline, the sports regime established by the [club], and fulfill the plans for
preparing for sports competitions, including training regimen and follow all instructions of
the Head coach and coaches of the [club]”.
23.
On the same date, i.e. 12 February 2020, the player unilaterally terminated his contract in
writing on the basis of the unpaid wages and the individual training plan he was forced to
follow and requested the club to pay him compensation for the early termination of the
contract.
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24.
On 12 February 2020, the player and the Latvian club, BFC Daugavpils (hereinafter:
Daugavpils) concluded an employment contract, valid as from the date of its signature until
1 November 2020, whereby the player was entitled inter alia to a monthly salary of EUR
1,050.
25.
By means of its letter dated 14 February 2020, the club replied to the termination letter of
the player, denying having breached the contract of the player and informing the latter that
his unilateral termination of the contract constituted a breached thereof and requested the
player to “provide all amounts of compensation payments and provide the Club with the
final calculation of amounts within 3 (three) calendar days”. The said letter further stated
that: “Non-receiving of your written reply within the established term will be considered as
refusal to early terminate the Contract upon the initiative of the [player]”.
26.
On 12 March 2020, upon the player’s registration with Daugavpils, the club sent a
correspondence to Daugavpils, whereby it requested a clarification from Daugavpils as to
the registration of the player. The club furthermore informed Daugavpils that, in order for
the player to lawfully terminate his contract with the club and sign another contract with a
third club, the amount of EUR 3,000,000 should be paid, in accordance with the buy-out
clause in the contract.
27.
According to TMS, Daugavpils and the Russian club FC Chayka executed a transfer
agreement on 24 August 2020, by means of which the player was transferred from the
former to the latter free of payment on a definitive basis. Such transfer agreement contains
a sell-on fee of 10% in favour of Daugavpils.
28.
Subsequently, the player and FC Chayka executed an employment contract on 25 August
2020, valid as of the 1 September 2020 until 31 May 2022, according to which the player
is entitled to a total fixed remuneration of Russian Rubles 1,050,000.
II.
PROCEEDINGS BEFORE FIFA
29.
On 30 June 2020, the club filed the claim at hand before FIFA against the player and
Daugavpils (hereinafter jointly referred to as respondents). A brief summary of the position
of the parties is detailed in continuation.
a.
30.
The claim of the club
The club requested the player and Daugavpils to be considered jointly and severally liable
for the termination of the contract of the player and be ordered to pay compensation for
breach of contract in the amount of EUR 3,000,000, plus 9.5% interest p.a. as from 12
February 2020 until the date of effective payment. As to the interest requested, the club
stressed that said interest is “the applicable [in accordance to the] Law of the Republic of
Kazakhstan”.
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31.
Moreover, the club requested sanctions to be imposed on the respondents, and that the
respondents are ordered to bear “all costs relating to these proceedings”.
32.
Alternatively, the club requested to be awarded “the highest possible amount that the
Dispute Resolution Chamber will deem appropriate in accordance with the criteria
established by Article 17 of the FIFA Regulations”. In this regard, the club stressed that the
amount to be awarded should not be less than EUR 200,000, since such amount
“corresponds to the approximate replacement costs, estimated by Mr Baimukhanov at EUR
200,000 (cf. Enclosures X and XI). Incidentally, such amount reflects the parameters
provided for by the FIFA Circular Letter no. 1673 dated 28th May 2019, according to which
UEFA category III clubs, such as Kairat, incur training costs of EUR 30,000 (thirty thousand
euros) per year, i.e. in the case of the investment made in the Player a total of approximately
EUR 200,000 (two hundred thousand euros). As a result, EUR 200,000 is the minimum
amount that Kairat would have countenanced in the scope of a negotiation for the transfer
of the Player”.
33.
Furthermore, the club added that, according to article 17 par. 1 of the FIFA Regulations on
the Status and Transfer of Players (RSTP), it shall be considered that the contractual breach
fell within the protected period as an aggravating factor when deciding the amount of
compensation to be paid.
34.
In its claim, the club argued that the player terminated the contract without just cause. The
club referred to the two reasons provided by the player in order to terminate the contract:
the outstanding salaries and the individual trainings, and explained that, at the end of
January 2020 the coach of the club ascertained the player’s poor fitness level and decided
to designate an individual training plan for him to raise the level of the player and allow
him to play an important role in the first team in the coming season.
35.
Furthermore, the club stressed that the possibility for the club to designate an individual
training plan for the Player was explicitly provided under clause 2.6.14 of the Employment
Contract, which reads: “(2.6 Employer shall have the right to:) […] establish an individual
mode of work for the Employee to maintain the game form on the basis of the instructions
of Head Coach in accordance with the sub-item 2.2.7. of this Employment agreement”.
36.
As to the unpaid wages, the club held that the withholding of the player’s personal
allowance – due to the player not meeting the required standards of fitness and
professionalism – was completely justified as the Head Coach exercised his legitimate right
to do so based on the conduct of the player. In this regard, the club explained that the
personal allowance is an extra bonus that is paid by Kairat to its players in addition to their
salaries and that it is only a conditional payment, which incentivises Kairat’s players to
maintain the required standards of professionalism; and that it is only paid to players based
on the recommendation of the Head Coach, who has the right to withhold this payment
from any player in the squad.
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37.
As to the amount of EUR 3,000,000 claimed by the club, the latter explained that the player
and the club stipulated the amount of compensation that would be due in case of unilateral
breach of the contract by the player at clause 6.4 of the contract and that, insofar there
was no violation of the contract by the club, the liquidated damages of EUR 3,000,000
became due by the player to the club upon the player’s early termination of the contract
on 12 February 2020.
38.
Petitum of the club:
“a) CONFIRMING that the Dispute Resolution Chamber has jurisdiction to assess this dispute;
b) CONFIRMING that the First Respondent unilaterally terminated the Employment Contract
without just cause within the protected period;
c) CONDEMNING the First Respondent to pay to the club compensation for the unilateral
termination of the Employment Contract in the amount of €3,000,000 (three million euros),
plus 9.5% per annum interest applied from 12th February 2020, or alternatively in the
highest possible amount that the Dispute Resolution Chamber will deem appropriate in
accordance with the criteria established by Article 17 of the FIFA Regulations and;
d) CONDEMNING the Second Respondent to be jointly and severally liable to pay the club
the compensation due by the Player for the unilateral termination of the Employment
Contract without just cause within the protected period;
e) IMPOSING sporting sanctions on the First Respondent pursuant to Article 17 par. 3 of
the FIFA Regulations;
f) IMPOSING sporting sanctions on the Second Respondent pursuant to Article 17 par. 4 of
the FIFA Regulations;
g) IMPOSING the appropriate measures on the intermediary involved, including REFERRING
the matter to the member association responsible for the imposition of sanctions upon the
intermediary;
h) CONDEMNING the First Respondent and Second Respondent to bear all costs relating to
these proceedings”.
b.
Position of the respondents
39.
The respondents filed a joint defense and counterclaim against the club.
40.
The respondents argued that contrarily to the arguments of the club, Kazakh Law shall not
apply to the case at hand, only the RSTP and the DRC jurisprudence.
41.
The respondents claimed that the player had just cause to terminate the contract on the
grounds that the club violated his personality rights. The player argued that “among a
player’s fundamental rights under an employment contract, is not only his right to a timely
payment of his remuneration, but also his right to access training and to be given the
possibility to compete with his fellow team mates in the team’s official matches. The
respondents referred to the jurisprudence of the Court of Arbitration for Sport (CAS) in this
respect, and submitted that “In the present case, concerning Kairat’s contention that it had
assigned the Respondent to train alone due to “the decision taken by the Head Coach […]
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based solely on sporting reasons, which are related to the Player’s fitness,” the DRC should
follow the same well-established test and principles as in CAS 2014/A/3642, CAS
2015/A/4286, CAS 2017/A/5162, CAS 2019/A/6171, 6175, and should apply them to the
facts in the case at hand”.
42.
The respondents further argued that the player was put to train with the reserve team on
the grounds that the club was not satisfied with its new representatives, and stated that
“Kairat did not refer to the Player’s fitness condition to justify its radical decision” when it
took the decision to put him on a separate training schedule on 16 January 2020. The
respondents further referred to the letters from the player dated 19, 23 January and 7
February as well the club’s letters of 20 January and 12 February, and underlined that Kairat
did not mention at all the Player’s then fitness level and did not refute the Player’s position
that Kairat was putting pressure on him to terminate the agency contract”. The player also
referred to the fact that he was the only one put on a separate training schedule while the
entire squad was on pre-season camp in Turkey.
43.
The respondents furthermore argued that the head coach confirmed to him that he was
put to train in separate at the request of club management and that “Furthermore, during
the period in question, Kairat did not assign any other player of the first team to train alone.
The entire team was on a pre-season camp in Antalya, Turkey”. The respondents concluded
that “For these reasons, the Counter-Claimants are convinced that the assigning of the
Player to an individual training was unwarranted and constituted a unilateral change of the
terms of the Contract to the detriment of the Player, and was, as such, abusive”.
44.
The respondents furthermore argued that the player was not being paid his full salary on
account of the fact that the club unilaterally deducted amounts, failing to provide evidence
why. The player underlined that his salary totals KZT 837,500 comprised of basic salary (KZT
628,125) and personal allowance (KZT 209,375), the latter which is not subject to any
discretion of the club or the head coach under art. 3.1 and 3.9 of the contract. The player
claimed he was paid his salary only for January 2020 and not the personal allowance. The
player further claimed that in 4 years the club had never made such deduction.
45.
The player went on to submit that a period of 46 days is rather a permanent situation and
not a temporary one. He further argued that the training facility in Kazakhstan was not
adequate as it comprised on an old synthetic pitch in snowy conditions and low
temperatures. The player is of the position that if the structure was adequate the team
would not have gone to Turkey for pre-season training.
46.
In continuation, the player argued that clauses 2.6.14, 2.2.7 and 2.4.7 of the contract do
not authorize the Head Coach to put the player in a separate training schedule as they refer
to off-season periods.
47.
Lastly, the player confirmed that while he had a fitness coach with him, he submitted he
was not authorized to train with any other teams of the club.
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48.
The player referred to the claim of the club and argued that since Kazakh Law does not
apply, the claim for interest of 9.5% has to be rejected, and further outlined that the
termination of the contract took place outside the protected period. The player further
argued that the compensation clause established under the contract is disproportionate.
49.
Petitum of the respondents:
“1. Render the present counterclaim admissible.
2. Declare that the Player terminated the employment contract with Kairat with a just cause,
with effect from 12 February 2020.
3. Order Kairat to pay the Player outstanding salary of KZT 209 1375 plus interest of 5%
p.a. as of 11 February 2020 until the date of effective payment.
4. Order Kairat to pay the Player compensation for breach of contract of KZT 7,152,396.50
plus interest of 5% p.a. as of 12 February 2020 until the date of effective payment.
5. Reject the claims of Kairat against the Player and Daugavpils in their entirety insofar as
they are admissible.
6. Declare that these payments of salary and compensation to the Player shall be made on
a net basis, free of any taxation, Kairat being responsible for the filing and payment of all
taxes relating to these payments of salary and compensation of salaries due to the Player.
7. Impose sanctions on Kairat under Article 1 7.4 or Article 24bis RSTP”.
c.
Reply to the counterclaim
50.
The club in its reply to the counterclaim argued that Kazakh Law “shall be taken into
account” under art. 25 (6) and 26 (2) of the RSTP and art. 2 of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber.
51.
As to the personal allowance, the club argued that “as confirmed in the affidavit of Kairat’s
General Director (cf. Enclosures X and XI of the Statement of Claim), is akin to a bonus,
incentivising Kairat’s players to maintain the highest standards of professionalism and is
only paid to players – in addition to their salary - based on the recommendation of the Head
Coach. The club’s General Director also confirmed in his affidavit (cf. Enclosures X and XI of
the Statement of Claim) that a number of the club’s players have had their personal
allowance withheld at different times and for a variety of reasons”.
52.
The club argued that the audio recordings submitted by the player are inadmissible on the
grounds that they were obtained without the consent of the people involved, which violates
Kazakh Law, namely art. 144 of the local Civil Code.
53.
The club went on to confirm that it was the Head Coach’s decision to put the player on a
separate training schedule. The club is of the position that the player was underperforming
and not motivated, and hence it decided to put him on said training schedule for sporting
reasons. The club is further of the opinion that clauses 2.6.14 and 2.2.7 authorized the club
to do so.
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54.
The club further refuted the allegation that it put the player on a separate trainings schedule
due to a problem with the player’s agent, and argued that the player has not met his burden
of proof in this regard. The club further argued that the player’s training schedule was to
end precisely one day before the club’s first match on 7 March 2020, and that the player
was included in the club’s roster for the league.
55.
The club further referred to the video evidence filed by the player regarding the conditions
of the club in its headquarters and argued that such footage does not demonstrate the
player’s allegations.
56.
The club reiterated its requests for relief.
III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
Competence and applicable legal framework
57.
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. In this respect, it
took note that the present matter was presented to FIFA on 30 June 2020 and submitted
for decision on 14 January 2021. 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.
58.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules
and observed that in accordance with art. 24 par. 1 in combination with art. 22 lit. a) and
b) of the Regulations on the Status and Transfer of Players (edition January 2021), 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 Kazakh club, a
Kazakh player and a Latvian club.
59.
The Chamber analysed which regulations should be applicable as to the substance of the
matter. In this respect, it confirmed that, in accordance with art. 26 par. 1 and 2 of the
Regulations on the Status and Transfer of Player (edition January 2021), and considering
that the present claim was lodged on 30 June 2020, the June 2020 edition of said
regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b.
60.
Burden of proof
The Chamber recalled the basic principle of burden of proof, as stipulated in art. 12
par. 3 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 DRC stressed the
wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties.
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61.
In this respect, the Chamber also recalled that in accordance with art. 6 par. 3 of Annexe 3
of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence generated
or contained in TMS.
c.
62.
Merits of the dispute
The competence of the DRC and the applicable regulations having been established, the
DRC entered into the merits of the dispute. In this respect, the DRC started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC emphasised that in the following considerations
it will refer only to the facts, arguments and documentary evidence, which it considered
pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
63.
The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the parties strongly dispute whether the player had just cause
or not to terminate the contract, and the consequences thereto. The Chamber also noted
that the parties dispute whether Kazakh law applies to the matter at hand.
64.
First of all, the Chamber wished to recall that when deciding a dispute before the DRC,
FIFA’s regulations prevail over any national law chosen by the parties. In this regard, the
Chamber emphasised that 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. This objective would not be achievable if the DRC would have to apply the national law
of a specific party on every dispute brought to it. In this respect, the DRC wished to point
out that it is in the interest of football that the examination of the aspects concerning the
termination of a contract is based on uniform criteria rather than on provisions of national
law that may vary considerable from country to country. Therefore, the Chamber deemed
that it is not appropriate to apply the principles of a particular national law to the
termination of the contract but rather the Regulations, general principles of law and, where
existing, the Chamber’s well-established jurisprudence
65.
In continuation, the DRC outlined that it seemed quite clear, in light of the contents on
clauses 2.2.7 and 2.6.14 of the contract, that the club could indicate individual training
programs to the player both while the season was ongoing or during season breaks, the
latter of which pertains to the case at hand. The DRC outlined that the contents of such
clauses are in principle convergent with the general duty of a player to maintain his fitness
level.
66.
Accordingly, the Chamber concluded that the club was contractually entitled to put the
player on a separate training schedule. The DRC wished to emphasize however, for the sake
of completeness, that even if a club might be contractually authorized to assign specific
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training schedules to a player, such authorization has to be reasonable and proportionate;
in other words, it cannot amount to an abusive conduct.
67.
In continuation, the Chamber turned to the evidence provided by the player in respect of
the allegation that the individual training program was put in place as a punishment for the
player having changed his agent, consisting from audio files and text messages. The DRC
confirmed that in light of the contents of art. 12 par. 1 of the Procedural Rules and in line
with the jurisprudence of the Chamber and the Court of Arbitration for Sport (CAS), such
as, for instance, case CAS 7050, such evidence was admissible.
68.
To this end, the majority of the members of the Chamber concurred that such evidence
could not establish to a comfortable satisfaction degree the player’s allegations. It followed
therefore that the majority of the members of the Chamber concurred that the notices of
the player in respect of this line of reasoning, i.e. the training sessions as a punishment
related to the player’s agent, should be disregarded as they lacked legal basis.
69.
Notwithstanding the above, the Chamber examined the default notice sent by the player
on 7 February 2020 and noted that pursuant to the wording of clauses 3.1 and 3.7 of the
contract, the personal allowance was a part of the player’s fixed monthly remuneration. In
particular, the Chamber unanimously found that clause 3.7 of the contract does not state
that such personal allowance is conditional upon the player’s performance, but rather that
is will be paid “to stimulate the improvement of the quality of work and increase the
responsibility of the Employees for the performance of their duties”. The Chamber
established thus that such payment was not conditional, setting aside the argument of the
club that the payment was similar to a bonus, and decided that such payment should have
been properly made by the club.
70.
At this point, the Chamber confirmed that in spite of the fact that the club could not have
withheld part of the player’s salary, such amount did not comprise of more than two
monthly salaries. Concomitantly, the Chamber confirmed that the deadline granted by the
player in his default notice of 7 February 2020 was short, and that the player terminated
the contract on 12 February 2020, that is, only five days after having put the club in default.
71.
Additionally, the Chamber acknowledged the fact that the player signed a new contract
with Daugavpils on the same day he terminated the contract with Kairat.
72.
In this respect, the Chamber was eager to emphasise that only a breach or misconduct
which is of a certain severity justifies the termination of a contract. In other words, only
when there are objective criteria, which do not reasonably permit to expect a continuation
of the employment relationship between the parties, a contract may be terminated
prematurely. Hence, if there are more lenient measures which can be taken in order for a
party to ensure the fulfilment of its counterparty’s contractual duties, such measures must
be taken before terminating an employment contract. A premature termination of an
employment contract can only ever be an ultima ratio measure.
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73.
Based on the foregoing considerations, the majority of the members of the Chamber
concurred that the player did not have just cause to terminate the contract. In short, the
majority of the Chamber deemed that the player’s termination of the contract was
premature; the player was still attending the individual (temporary) training sessions during
a preseason period, and the contractual breach by the club had in any case not reached a
level for the player to conclude that it could not reasonably be expected to continue the
employment relationship.
74.
Notwithstanding the above conclusion, the DRC by unanimous decision wished to
emphasize that it did not take the club’s position lightly, that is, that the prolonged period
of the individual training sessions and the particular circumstances of the case pertaining to
the team preseason training in Turkey were duly considered; however, the majority of the
members of the Chamber emphasized that the player acted prematurely in his termination,
in a seemingly premediated manner since the date of the termination of the contract and
the date of execution of the new contract with Daugavpils were exactly the same.
ii. Consequences
75.
That said, the DRC further established that the player is to be held liable for the early
termination of the contract without just cause, thereby focussing its attention on the
consequences of such breach of contract.
76.
In doing so, the DRC established in line with the forgoing considerations that the player is
entitled to the unpaid portion of his salary of January 2020, which amounts to KZT 209,375.
77.
Furthermore, the DRC confirmed that the player was employed by Kairat for 12 days in the
month of February 2020, i.e. up until the contract was terminated. Therefore, the Chamber
decided that the player is entitled to his pro-rata salary of February 2020, which amounts
to KZT 335,000.
78.
As such, the Chamber decided to partially accept the player’s counterclaim and that Kairat
must pay, in accordance with the general legal principle of pacta sund servanda, the
aforementioned amounts (i.e. KZT 209,375 and KZT 335,000) as outstanding remuneration
in the case at hand.
79.
In addition, taking into account the player’s request as well as the constant practice of the
Dispute Resolution Chamber in this regard, the Chamber decided that Kairat must pay to
the player interest of 5% p.a. on the said amount as from the first day after their due dates,
i.e. respectively 1 February 2020 and 13 February 2020, until the date of effective payment.
80.
In continuation, the Chamber turned its attention to art. 17 par. 1 of the Regulations,
according to which the player is liable to pay compensation to Kairat. Furthermore, pursuant
to the unambiguous contents of art. 17 par. 2 of the Regulations, the Chamber established
that the player’s new club, i.e. Daugavpils, shall be jointly and severally liable for the
payment of compensation. In this respect, the Chamber was eager to point out that the
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REF 20-00933
joint liability of the player’s new club is independent from the question as to whether the
new club has committed an inducement to contractual breach or any other kind of
involvement by the new club. This conclusion is in line with the jurisprudence of the DRC,
which has been repeatedly confirmed by CAS. Notwithstanding, the Chamber recalled that
in accordance with art. 17 par. 2 of the Regulations, it should be assumed that, unless
otherwise proven, any club that signs a contract with a professional player who has
terminated his/her contract without just cause has induced the player to terminate such
contract.
81.
The members of the Chamber 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 as well as the fees and expenses paid or incurred by the former
club (amortised over the term of the contract) and whether the contractual breach falls
within a protected period.
82.
In application of the relevant provision, the Chamber held that it first of all had to clarify as
to whether the pertinent employment contract contains a provision by which the parties
had beforehand agreed upon an amount of compensation payable by either contractual
party in the event of breach of contract. Upon careful examination of said contract, the
members of the Chamber deemed that the contract contains a clause which could be
considered, i.e. clause 6.5.
83.
In this respect, the Chamber found that the clause at stake is neither proportionate nor
reciprocal insofar as the compensation is payable in favour of the club only; additionally,
the amount therein indicated is equivalent to approximately 150 times the yearly
remuneration of the player under the contract. Accordingly, the Chamber found that clause
6.5 cannot be upheld and that compensation due to Kairat shall be calculated on the basis
of art. 17 of the Regulations.
84.
In the calculation of the amount of compensation due by the player, the Chamber firstly
turned its attention to the remuneration and other benefits due to the player under the
existing contract and/or any new contract(s), a criterion which was considered by the
Chamber to be essential. The members of the Chamber deemed it important to emphasise
that the wording of art. 17 par. 1 of the Regulations allows the Chamber to take into
account both the existing contract and any new contract(s) in the calculation of the amount
of compensation.
85.
According to the documentation provided by the parties, it appears that in accordance with
the contract, which was to run until February 2021, the player was to receive a total
remuneration of KZT 10,524,583. This amount includes the remainder of the player’s
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REF 20-00933
salaries of February 2020 (i.e. from 12 February 2020 onwards) and 12 months of
remuneration from March 2020 until February 2021.
86.
On the other hand, the value of the new employment agreement, concluded between the
player and Daugavpils, appears to entail a monthly salary of EUR 1,050. Hence, the total
contract value as converted on 12 February 2020, i.e. the date the player and Daugavpils
signed their contract, is approximately KZT 3,700,655. For the sake of completeness, the
Chamber wished to clarify that in order to properly calculate the aforementioned average,
in accordance with the jurisprudence of the DRC, it was necessary to consider the amounts
due to the player under the agreement signed with Daugavpils for the same period of time
remaining in the contract. In other words, the DRC clarified that in order to properly
calculate the average of the amounts due to the player under both the former and the new
contract, it had to (fictionally) extend the period of the new employment contract to match
the original term of the contract.
87.
In view of all of the above, the Chamber concluded that bearing in mind art. 17 par. 1 of
the Regulations, after having duly taken into account the specificities of the present case,
the compensation considering the player’s both existing contract and any new contract(s)
amounts to KZT 7,112,619, which is the average between the amounts the player is entitled
to both under the contract and new employment agreement, a sum the Chamber found to
be fair and proportionate.
88.
The members of the Chamber then turned to the argumentation of Kairat pertaining to
replacement costs allegedly incurred. In this respect, and having in mind the
aforementioned principle of the burden of proof, the DRC unanimously concurred that the
club failed to establish that the costs incurred with hiring another player had been done so
in connection with a replacement of the player. Consequently, any argument of the club in
this respect was set aside by the Chamber.
89.
On account of all of the above-mentioned considerations and the specificities of the case
at hand, the Chamber decided that the player must pay the amount of KZT 7,112,619 to
Kairat as compensation for breach of contract. Furthermore, Daugavpils is jointly and
severally liable for the payment of the relevant compensation.
90.
In addition, taking into account Kairat’s request as well as the constant practice of the
Dispute Resolution Chamber in this regard, the Chamber decided that the player and
Daugavpils must pay to Kairat interest of 5% p.a. on the amount of compensation as of
the date of claim until the date of effective payment. The Chamber highlighted that there
was no contractual basis to award the interest
iii. Sporting sanctions
91.
As to the matter of sporting sanctions, as established under art. 17 par. 3 and 17 par. 4 of
the Regulations, the Chamber found that, albeit Kairat was not in breach of its obligations
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REF 20-00933
per se at the time of termination, it engaged in a posture that the Chamber found to be
significant as outlined before.
92.
In view of such particular situation, and yet underlining, once again, that the termination
of the contract was found to be premature by the majority of the members of the DRC, the
Chamber concluded that the player’s actions did not merit the imposition of sporting
sanctions. In short, the DRC unanimously concluded that the overall posture of Kairat was
to be considered an attenuating factor.
iv. Compliance with monetary decisions
93.
Finally, taking into account the applicable Regulations, the 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.
94.
In this regard, the DRC pointed out that, against players, the consequence of the failure to
pay the relevant amounts in due time shall consist of a ban from playing in official matches,
up until the due amounts are paid and for the maximum duration of six months.
95.
Additionally, the DRC 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 and for the maximum
duration of three entire and consecutive registration periods.
96.
Therefore, bearing in mind the above, the DRC decided that, in the event that the player
does not pay the amounts due to Kairat within 45 days as from the moment in which Kairat,
following the notification of the present decision, communicates the relevant bank details
to the player, a ban from playing in official matches, for the maximum duration of six
months shall become effective on the player in accordance with art. 24bis par. 2 and 4 of
the Regulations.
97.
Likewise, the DRC decided that, in the event that Daugavpils does not pay the amounts due
to Kairat within 45 days as from the moment in which Kairat, following the notification of
the present decision, communicates the relevant bank details to Daugavpils, 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 Daugavpils in
accordance with art. 24bis par. 2 and 4 of the Regulations.
98.
Equally, the DRC decided that, in the event that Kairat does not pay the amounts due to
the player within 45 days as from the moment in which the player, following the notification
of the present decision, communicates the relevant bank details to Kairat, a ban from
registering any new players, either nationally or internationally, for the maximum duration
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REF 20-00933
of three entire and consecutive registration periods shall become effective on Kairat in
accordance with art. 24bis par. 2 and 4 of the Regulations.
99.
The DRC recalled that the above-mentioned bans 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.
d.
Costs
100. The Chamber referred to article 18 par. 2 of the Procedural Rules, according to which “DRC
proceedings relating to disputes between clubs and players in relation to the maintenance
of contractual stability as well as international employment related disputes between a club
and a player are free of charge”. Accordingly, the Chamber decided that no procedural
costs were to be imposed on the parties.
101. Likewise and for the sake of completeness, the Chamber recalled the contents of art. 18
par. 4 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
102. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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REF 20-00933
IV. DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant/Counter-Respondent, FC KAIRAT, is partially accepted.
2.
The Respondent 1/Counter-Claimant, RAMAZAN ORAZOV, has to pay to the
Claimant/Counter-Respondent, the following amount:
- KZT 7,112,619 as compensation for breach of contract without just cause plus 5% interest
p.a. as from 30 June 2020 until the date of effective payment.
3.
The Respondent 2, FC DAUGAVPILS, is jointly and severally liable for the payment of the
aforementioned compensation.
4.
Any further claims of the Claimant/Counter-Respondent are rejected.
5.
The Claimant/Counter-Respondent is directed to immediately and directly inform the
Respondent 1/Counter-Claimant and the Respondent 2 of the relevant bank account to
which the payment is to be made.
6.
The Respondent 1/Counter-Claimant and the Respondent 2 shall provide evidence of
payment of the due amount in accordance with this decision to [email protected], duly
translated, if applicable, into one of the official FIFA languages (English, French, German,
Spanish).
7.
In the event that the amount due, plus interest as established above is not paid by the
Respondent 1/Counter-Claimant within 45 days, as from the notification by the
Claimant/Counter-Respondent of the relevant bank details to the Respondent 1/CounterClaimant, the following consequences shall arise:
1. The Respondent 1/Counter-Claimant shall be restricted on playing in official matches
up until the due amount is paid and for the maximum duration of six months. The
aforementioned ban mentioned will be lifted immediately and prior to its complete
serving, once the due amount is paid (cf. art. 24bis of the Regulations on the Status
and Transfer of Players).
2. In the event that the payable amount as per in this decision is not paid within the
granted deadline, the present matter shall be submitted, upon request, to the FIFA
Disciplinary Committee.
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REF 20-00933
8.
In the event that the amount due, plus interest as established above is not paid by the
Respondent 2 within 45 days, as from the notification by the club /Counter-Respondent
of the relevant bank details to the Respondent 2, the following consequences shall arise:
1. The Respondent 2 shall be banned from registering any new players, either nationally
or internationally, up until the due amount is paid and for the maximum duration of
three entire and consecutive registration periods. The aforementioned ban mentioned
will be lifted immediately and prior to its complete serving, once the due amount is
paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amount as per in this decision is still not paid by the end
of the ban of three entire and consecutive registration periods, the present matter shall
be submitted, upon request, to the FIFA Disciplinary Committee.
9.
10.
The counterclaim of the Respondent 1/Counter-Claimant is partially accepted.
The Claimant/Counter-Respondent has to pay to the Respondent 1/Counter-Claimant the
following amounts:
- KZT 209,375 as outstanding remuneration plus 5% interest p.a. as from 1 February 2020
until the date of effective payment;
- KZT 335,000 as outstanding remuneration plus 5% interest p.a. as from 13 February 2020
until the date of effective payment.
11.
Any further claims of the Respondent 1/Counter-Claimant are rejected.
12.
The Respondent 1/Counter-Claimant is directed to immediately and directly inform the
Claimant/Counter-Respondent of the relevant bank account to which the payment is to be
made.
13.
The Claimant/Counter-Respondent shall provide evidence of payment of the due amount
in accordance with this decision to [email protected], duly translated, if applicable, into one
of the official FIFA languages (English, French, German, Spanish).
14.
In the event that the amount due, plus interest as established above is not paid by the
Claimant/Counter-Respondent within 45 days, as from the notification by the Respondent
1/Counter-Claimant of the relevant bank details to the Claimant/Counter-Respondent, the
following consequences shall arise:
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REF 20-00933
1. The Claimant/Counter-Respondent shall be banned from registering any new players,
either nationally or internationally, up until the due amount is paid and for the
maximum duration of three entire and consecutive registration periods. The
aforementioned ban mentioned will be lifted immediately and prior to its complete
serving, once the due amount is paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amount as per in this decision is still not paid by the end
of the ban of three entire and consecutive registration periods, the present matter shall
be submitted, upon request, to the FIFA Disciplinary Committee.
15.
The decision is rendered free of costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF 20-00933
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
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