DRC Overdue Payables
Texto da decisão
REF FPSD-5499
Decision of the
Dispute Resolution Chamber
passed on 4 August 2022
regarding an employment-related dispute concerning the player Sardor
Rashidov
COMPOSITION:
Omar Ongaro (Italy), Deputy Chairperson
Laurel Vaurasi (Fiji), member
Khadija Timera (Senegal), member
CLAIMANT:
Sardor Rashidov, Uzbekistan
Represented by Shaymardanov Davron
RESPONDENT:
Kuwait SC, Kuwait
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REF FPSD-5499
I.
Facts of the case
1.
On 14 July 2021, the Uzbek player, Sardor Rashidov (hereinafter: the player or Claimant),
and the Kuwaiti club, Kuwait SC (hereinafter: the club or Respondent) signed an
employment contract valid as from 24 July 2021 until 30 June 2022.
2.
In accordance with clause 3 of the contract, the player was entitled to a total
remuneration of USD 1,000,000, payable as follows: a) USD 300,000 as advance payment,
paid after a successful medical exam and the issuance of the ITC; and b) USD 700,000
“divided on the period of the contract as monthly salaries”.
3.
On 3 October 2021, the player and the club concluded a mutual termination agreement,
valid as from 4 October 2021, according to which the club undertook to pay the player
“following the signature of this agreement a sum equivalent to 4 (four) months salaries, till the
end of December 2021 (USD 58,331 x 4 = 233,324 USD)”.
4.
The agreement further stipulated the following:
“3- The player will receive a sum of 500 KD (five hundred Kuwaiti Dinars) as bonus for winning
the semi final match of the Amir Cup.
4- The club will provide the player with the return air tickets to Uzbekistan.
5- The club undertakes to pay the agency fees of the player’s agent based on the agreement.
between the two parties concerned (the club and the agent).
6- In case the player received an offer during January 2022 equal or exceed USD 396,166 (…)
the club will not pay any additional amount of the player. Meanwhile, if the player received an
offer less than the mentioned amount, the club will pay the different between the received offer
and the amount of USD 396,166 in full within the next 10 days.
7- the player clearly declare that this mutual agreement is final and when the club paid the
amounts, he has not right to claim any other financial matters of privileges of any kinds
whatsoever rather than what is mentioned in this agreement regardless the old contract.
8. Both parties undertakes not to speak about each other in the media, or to announce any
information of any kind about the period during which the player was joined Kuwait SC Team,
the party who will breach this article will be entitled to be fined and a legal action will be taken
against”.
5.
On 18 February 2022, the player sent the club a default notice, whereby he mentioned
that according to the termination agreement the club should still pay him inter alia the
difference between the amount of USD 396,166 and the salary due to him in accordance
with his new employment contract.
6.
In this respect, he indicated that he managed to conclude a new contract with the
Uzbekistan club Paxtakor FC on 31 January 2022 (valid until 31 December 2022) for a
monthly salary of approximately USD 1,335. Thus, for the overlapping period, the club still
owes him the amount of USD 389,491, i.e. USD 396,166 – (USD 1,335 x 5).
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7.
While referring the club to art.12bis of the RSTP, the player requested the payment of the
aforementioned amounts within 10 days.
II. Proceedings before FIFA
8.
On 17 March 2022, the player filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a.
Position of the Claimant
9.
The player claims not to have received any reply or payment from the club within the
deadline granted in his default notice.
10. Thus, he requests the DRC to order the club to make the following payments:
a.
b.
c.
“USD 389,491 as the different between the amount agreed in clause 6 of the termination
agreement and the amount of the player’s new employment contract for the overlapping
period + 5% interest as from 18 February 2022 until the date of effective payment;
KD (Kuwaiti Dinar) as agreed in clause 3 of the mutual termination agreement + 5% interest as
from 18 February 2022 until the date of effective payment;
USD 5,000 as legal costs”.
11. The player also requests the imposition of sanctions on the club, in line with art. 12bis of
the RSTP.
b.
Position of the Respondent
12. In its reply to the claim, the club points out an additional fact not mentioned by the player.
In particular, it explains that on 29 January 2022, the club received a letter from Al Jahra
Sports Club, in which it inquired about the contractual situation of the player, who they
wanted to engage for the winter registration period of 2022.
13. Also on 29 January 2022, the club allegedly replied to Al Jahra that the player was out of
contract, as they had terminated their contract mutually on 3 October 2021.
14. On the same day, Al Jahra sent the player an employment offer, proposing to engage him
from 1 February 2022 to May 2022 for a total remuneration of USD 400,000. The player
however refused the offer of Al Jahra and entered into a contract with Paxtakor.
15. In view of the foregoing, the club deems that the player, by refusing the offer of Al Jahra,
triggered the enforcement of clause 6 of the agreement and therefore created an
additional, unnecessary financial obligation for the club. Thus, the club claims it should
not be held liable to pay the player any amounts in relation to clause 6 of the agreement.
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16. In the alternative, in case the DRC understands that such clause applies, “the entire amount
of the offer received should have been deducted from USD 396,166. Therefore, the total value
of the new contract signed with Paxtor shall be deducted when calculating the compensation
allegedly due by KSC to the player. The correct calculation shall be as follows: USD 396,166 –
USD 14,685 (the result of USD 1,355 x 11 months) = USD 354,481”.
17. Based on the foregoing, the club understands that the claim of the player should be
primarily rejected in its entirety.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
18. 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 17 March 2022 and submitted
for decision on 4 August 2022. Taking into account the wording of art. 34 of the June 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.
19. Subsequently, the members of the Chamber referred to art. 2 par. 1 of the Procedural
Rules and observed that in accordance with art. 23 par. 1 in combination with art. 22 lit.
b) of the Regulations on the Status and Transfer of Players (June 2022 edition), the Dispute
Resolution Chamber is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between an Uzbek player
and a Kuwaiti club.
20. Subsequently, 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 Players (June 2022 edition), and
considering that the present claim was lodged on 17 March 2022, the March 2022 edition
of said regulations (hereinafter the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
21. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 13
par. 5 of the Procedural Rules, according to which a party claiming a right on the basis of
an alleged fact shall carry the respective burden of proof. Likewise, the Chamber stressed
the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which it may consider
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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
22. Its competence and the applicable regulations having been established; the Chamber
entered into the merits of the dispute. In this respect, the Chamber started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Chamber 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
23. 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 the applicability of
clause 6 of the termination agreement to the matter at hand.
24. In this context, the Chamber acknowledged that its task was to determine whether
clause 6 of the termination agreement indeed applied to the present matter and, if
affirmative, to determine the said consequences thereof.
25. The Chamber remarked that it is an undisputed fact amongst the parties that the amount
stipulated in clause 6 of the agreement remains unpaid.
26. The Chamber, however took note that the parties disagreed on whether clause 6 in fact
applies in the present matter, in this regard the player on his account deems the clause
was triggered by the signature of an employment contract with a lower value than the
residual amount of his previous employment contract, and that the club on its account
argued that the said clause does not apply, on the basis that the player refused the offer
of a Kuwaiti club, Al Jahra on 29 January 2022, for USD 400,000, which would have
hindered the application of clause 6, had he accepted that offer.
27. In this regard the DRC remarked that the Respondent failed to duly substantiate its
argument with corroborating evidence that the player in bad faith refused the offer of the
club Al Jahra. The Chamber remarked that the club failed to provide substantial written
documentation, moreover that its argument is not credible, considering that the player
would not obtain any benefit from refusing the offer of Al Jahra. Accordingly, the Chamber
concluded that the club’s argumentation cannot be upheld.
28. In view of the foregoing and bearing in mind the basic legal principle of pact sunt servanda,
which in essence means that agreements must be respected by the parties in good faith,
the club is to be held liable to pay the player the amounts deriving from clause 6 of the
termination agreement as agreed to between the parties.
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ii. Consequences
29. Having stated the above, the Chamber took note of the wording of clause 6 of the
agreement, which established that in case the player received an offer during January 2022
equal or exceed USD 396,166 (…) the club will not pay any additional amount of the player.
Meanwhile, if the player received an offer less than the mentioned amount, the club will pay
the different between the received offer and the amount of USD 396,166 in full within the next
10 days.
30. The player found new employment with the club Paxtakor FC from Uzbekistan valid as
from the date of signature until 31 December 2022. In accordance with the pertinent
employment contract, the player was entitled to approximately Uzbekistan Som (UZS)
14,500,000 (approx. USD 1,335) per month. Thus, the club still owes him the amount of
USD 389,491, i.e. USD 396,166 – (USD 1,335 x 5).
31. Consequently, the Chamber decided that the amount of USD 389,491, is due to the player
by the club, as well as the amount of KWD 500, as agreed to between the parties in clause
3 of the termination agreement.
32. Lastly, taking into consideration the Claimant’s request as well as the constant practice of
the Chamber in this regard, the latter decided to award the Claimant interest on said
compensation at the rate of 5% p.a. as of 18 February 2022 until the date of effective
payment.
33. In continuation, bearing in mind the foregoing considerations, the DRC 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.
34. The DRC established that in virtue of art. 12bis par. 4 of the Regulations he has
competence to impose sanctions on the Respondent.
35. Moreover, the DRC referred to art. 12bis par. 6 of the Regulations, which establishes that
a repeated offence will be considered as an aggravating circumstance and lead to a more
severe penalty.
36. Bearing in mind the above and taking into account that this is a first offense of the
Respondent in the past two years, the deciding body decided to impose a warning on the
Respondent in accordance with art. 12bis par. 4 lit. a) of the Regulations.
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iii. Compliance with monetary decisions
37. Finally, taking into account the applicable Regulations, the Chamber 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.
38. In this regard, 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. The overall
maximum duration of the registration ban shall be of up to three entire and consecutive
registration periods.
39. Therefore, bearing in mind the above, the DRC 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.
40. 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.
41. The DRC 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
42. The Chamber 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 Chamber decided that no procedural costs were
to be imposed on the parties.
43. Likewise, and for the sake of completeness, the Chamber recalled the contents of art. 25
par. 8 of the Procedural Rules and decided that no procedural compensation shall be
awarded in these proceedings.
44. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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IV. Decision of the Dispute Resolution Chamber
▪
1.
The claim of the Claimant, Sardor Rashidov, is partially accepted.
2.
The Respondent, Kuwait SC, has to pay to the Claimant, the following amounts:
-
USD 389,491 as outstanding remuneration plus 5% interest p.a. as from
18 February 2022 until the date of effective payment
-
KWD 500 as outstanding amount plus 5% interest p.a. as from 18 February 2022 until
the date of effective payment
3.
Any further claims of the Claimant are rejected.
4.
A warning is imposed on the Respondent
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:
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 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 article 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).
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