Labour Disputes
Texto da decisão
REF 20-00132
Decision of the
DRC Judge
passed on 28 July 2021,
regarding an employment-related dispute concerning the player Alexander Sheplyakov
BY:
CLAIMANT :
Alexander Sheplyakov, Russia
Represented by Arthur Egiyan
RESPONDENT:
FC Okzhetpes, Kazakhstan
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REF 20-00132
I. FACTS OF THE CASE
1.
On 16 February 2020, the Russian player, Alexander Sheplyakov (hereinafter: Claimant or player) and
the Kazakh club, FC Okzhetpes (hereinafter: Respondent or club) signed an employment contract
(hereinafter: contract) valid as of the date of signature until 9 November 2020.
2.
According to the contract, the Respondent undertook to pay the Claimant a monthly salary of
Kazakhstan Tenge (KZT) 3,806,000 (approx. EUR 7,500).
3.
The contract reads, inter alia, as follows:
“3.4. All payments due to the Employee and reflected in the text of this employment contract are
indicated taking into account without withholding taxes and other obligatory payments provided for
by the laws of the Republic of Kazakhstan.
3.5. The Employer independently calculates, deducts and transfers taxes and other mandatory
payments from the employee’s income stipulated by the legislation of the Republic of Kazakhstan
received during the period of validity of this employment contract”.
[…]
3.8 Payment of work stoppage time occurred through no fault of the Employer and the Employee is
established in the amount not less than the minimum salary and is paid within the time period
provided for in the legislation of the Republic of Kazakhstan.”
[…]
“5.2. The Employer provides the Employee with the basic paid annual labor leave of 28 calendar days.”
4.
On 24 February 2020, the parties concluded a supplementary agreement (hereinafter: agreement)
according to which the contractual relationship was extended until 21 November 2020, in case the
club reaches the “play-off match for promotion”.
5.
On 15 March 2020, the state of emergency was declared in Kazakhstan due to COVID-19.
6.
On 16 March 2020, the championship was suspended due to COVID-19.
7.
On 16 March 2020, the club issued an “order” according to which it reduced the salaries of the players
in the amount of 50% between 16 March 2020 and 15 April 2020 due to COVID-19.
8.
On 21 November 2020, the club played a match against FC Caspiy (round 19 of the Championship)
without the Claimant in the squad.
9.
On 19 December 2020, the player lodged a claim against the Respondent in front of FIFA and
requested payment of the following monies:
- KZT 14,462,800 “net” as outstanding salaries related to the months of March, April, October
and November 2020 (pro-rata; KZT 3,044,800 for 21 days);
- KZT 3,552,266 “net” as compensation for unused leave.
Moreover, the player requested payment of interest of 11.88% p.a. as of the due dates.
10. In his claim, the player held that the Respondent failed to remit the claimed salaries.
11. In this regard, the player held that the salary deduction in March and April 2020 was “unlawful” as
the club simply imposed it without previously trying to reach an agreement with the player.
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12. Nevertheless, the player explained that the club failed to pay any remuneration in March and April
2020.
13. The player further argued that the payments due to him were net as explained in art. 3.5 and 3.6 of
the contract.
14. According to the player, he is entitled to 28 days of paid leave, which he did not use. Therefore, he
claimed the amount of KZT 3,552,266, which corresponds to 28 days of his monthly salary.
15. According to the player, the extension of the contract until 21 November 2020 was executed and
therefore the contract was valid until 21 November 2020.
16. In its reply, the Respondent partially rejected the claim.
17. First of all, it held that the contract was not extended, as alleged by the player, since the season was
not yet finished in November 2020 and it did not qualify for the play-off match. Therefore, a normal
championship match was played on 21 November 2020, without the presence of the Claimant.
18. Moreover, the Respondent rejected the player’s argument that the salary was net. In this regard, it
referred to the wording of art. 3.4 of the contract, which establishes that taxes will be deducted.
19. On account of the above, the Respondent held that the player’s net salary was KZT 3,425,400,
considering tax deductions of 10%.
20. Additionally, the club held that the “work stoppage”, as defined in art. 3.8 of the contract, in
connection with COVID-19 was lawful due to the special circumstances. In this regard, the club held
that the player was paid his full salary again as of June 2020.
21. On account of the above, the club pointed out that reducing the player’s salary by 50% was lawful,
as it was in accordance with Kazakh law.
22. The club alleged having made several payments, without submitting any receipts. In this regard, the
club acknowledged a debt towards the player in the amount of KZT 4,363,674.
23. Regarding the unused leave, the club held that it paid for a plane ticket in the amount of KZT 155,923
for the player in exchange. Such amount shall be deducted from its debt.
24. The total compensation for unused leave would have amounted to KZT 1,848,585.
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II. CONSIDERATIONS OF THE DRC JUDGE
1.
First of all, the Dispute Resolution Chamber judge (hereinafter also referred to as DRC judge) analysed
whether he was competent to deal with the case at hand. In this respect, he took note that the
present matter was submitted to FIFA on 19 December 2020. 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 June 2020
edition of the Procedural Rules is applicable to the matter at hand.
2.
Subsequently, DRC judge referred to art. 3 par. 2 and par. 3 of the Procedural Rules and confirmed
that in accordance with art. 24 par. 1 and par. 2 in conjunction with art. 22 lit. b of the Regulations
on the Status and Transfer of Players (edition October 2020), he is competent to deal with the matter
at stake, which concerns an employment-related dispute with an international dimension between a
player and club.
3.
Furthermore, the DRC judge 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 October 2020), and considering that the present claim
was lodged on 19 December 2020, the October 2020 edition of said regulations (hereinafter: the
Regulations) is applicable to the matter at hand as to the substance.
4.
The competence of the DRC judge and the applicable regulations having been established, the DRC
judge entered into the substance of the matter. In this respect, the DRC judge started by
acknowledging all the above-mentioned facts as well as the arguments and the documentation
submitted by the parties. However, the DRC judge 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. In particular, the DRC judge recalled that in accordance with
art. 6 par. 3 of Annexe 3 of the Regulations, FIFA may use, within the scope of proceedings pertaining
to the application of the Regulations, any documentation or evidence generated or contained in the
Transfer Matching System (TMS).
5.
Having said this, the Chamber proceeded with an analysis of the circumstances surrounding the
present matter, the parties’ arguments as well the documentation on file, bearing in mind art. 12 par.
3 of the Procedural Rules, in accordance with which any party claiming a right on the basis of an
alleged fact shall carry the burden of proof.
6.
First of all, the members of the Chamber acknowledged that, on 16 February 2020, the player and
the club had concluded an employment contract valid as from the date of its signature until 9
November 2020, according to which the Respondent undertook to pay the Claimant, inter alia, a
monthly salary of KZT 3,806,000.
7.
In this context, the DRC judge took note of the player’s claim maintaining that the club failed to remit
his net salaries corresponding to March, April, October and November 2020 as well as his
compensation for unused leave. The player argued that the contract was extended until 21 November
2020.
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8.
On the other side, the DRC judge noticed that the club argued that it reduced the player’s salary in
connection with COVID-19. Furthermore, the club denied that the player’s salary was net and that
the contract was extended until 21 November 2020.
9.
Having said this, the DRC judge started to examine the parties arguments regarding the alleged
contract extension until 21 November 2020. In this regard, taking into account the documents on file,
the DRC judge concluded that the club did not qualify for the promotion play-off match and therefore
the contract expired on 9 November 2020.
10. Furthermore, the DRC judge turned his attention to the clubs argument that its salary deduction
during April and May 2020 was “lawful” due to COVID-19. However, the DRC judge noted that the
club failed to try hold negotiations with the player in the first place and directly imposed a reduction
of 50%. Therefore, the DRC judge concluded that the club had not acted in accordance with the
regulations regarding a unilateral variation of the contract.
11. For this dispute, it is important to note that based on the COVID-19 Guidelines, as well as the FIFA
COVID-19 FAQ, the COVID-19 outbreak is not a force majeure situation in any specific country or
territory. What is more, the COVID-19 Guidelines do not exempt an employer from paying a player’s
salary.
12. In this context, we considered that the arguments raised by the Respondent cannot be considered a
valid reason for non-payment of the monies claimed by the Claimant, in other words, the reasons
brought forward by the Respondent in its defence do not exempt the Respondent from its obligation
to fulfil its contractual obligations towards the Claimant.
13. Moreover, taking into account that the Respondent failed to submit any documentation about the
tax deductions, the DRC judge decided to take into account the monthly salary of KZT 3,806,000
without deductions, in accordance with the wording of the contract.
14. On account of the aforementioned considerations, the DRC judge established that the Respondent
failed to remit the Claimant’s remuneration in the total amount of KZT 12,559,800, corresponding to
the salaries of March, April, October 2020 as well as November 2020 on a pro-rata basis for 9 days.
15. Furthermore, the DRC judge noted that the Respondent did not deny that the player is entitled to
compensation for unused leave, but held that the amount is lower, without specifying its calculation,
and that the flight ticket has to be deducted from such amount. In this regard, the DRC judge decided
to award the the player the amount claimed as compensation for unused leave, but to deduct the
amount of the flight ticket the club paid for.
16. Consequently, the DRC judge decided that, in accordance with the general legal principle of pacta
sunt servanda, the Respondent is liable to pay to the Claimant the total amount of KZT 15,956,143.
17. In addition, taking into account the Claimant’s request as well as the constant practice of the Dispute
Resolution Chamber, the DRC judge decided that the Respondent must pay to the Claimant interest
of 5% p.a. on the amount of KZT 15,956,143 as of the respective due dates.
18. Furthermore, taking into account the consideration under number II./3. above, the DRC judge 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.
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19. In this regard, the DRC judge 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.
20. Therefore, bearing in mind the above, the DRC judge 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.
21. Finally, the DRC judge recalled that the above-mentioned ban will be lifted immediately and prior to
its complete serving upon payment of the due amounts, in accordance with art. 24bis par. 3 of the
Regulations.
22. The DRC judge closed his deliberations by rejecting any further claim lodged by the Claimant.
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III. DECISION OF THE DRC JUDGE
1.
The claim of the Claimant, Alexander Sheplyakov, is partially accepted.
2.
The Respondent, FC Okzhetpes, has to pay to the Claimant, the following amount:
- Kazakhstan Tenge (KZT) 3,806,000 as outstanding remuneration plus 5% interest p.a. as
from 1 April 2020 until the date of effective payment.
- KZT 3,806,000 as outstanding remuneration plus 5% interest p.a. as from 1 May 2020 until
the date of effective payment.
- KZT 3,806,000 as outstanding remuneration plus 5% interest p.a. as from 1 November 2020
until the date of effective payment.
- KZT 1,141,800 as outstanding remuneration plus 5% interest p.a. as from 10 November
2020 until the date of effective payment.
- KZT 3,396,343 plus 5% interest p.a. as from 19 December 2020 until the date of effective
payment.
3.
Any further claims of the Claimant are rejected.
4.
The Claimant is directed to immediately and directly inform the Respondent of the relevant bank
account to which the Respondent must pay the due amount.
5.
The 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).
6.
In the event that the amount due, plus interest as established above is not paid by the Respondent
within 45 days, as from the notification by the Claimant of the relevant bank details to the
Respondent, the following consequences shall arise:
1. The 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.
For the DRC judge:
Emilio García Silvero
Chief Legal & Compliance Officer
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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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