Labour Disputes
Texto da decisão
REF FPSD-6148
Decision of the
Dispute Resolution Chamber
passed on 20 July 2022
regarding an employment-related dispute concerning the player Yauheni
Shykauka
BY:
Sihon GAUCI (Malta)
CLAIMANT:
Yauheni Shykauka, Belarus
RESPONDENT:
Shakhter, Kazakhstan
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I.
Facts of the case
1.
On 16 July 2021, the Belarusian player Yauheni Shykauka (hereinafter: the Claimant) and
the Kazakhstani club Shakhter (hereinafter: the Respondent) signed an employment
contract (hereinafter: the Contract) valid until 30 November 2021.
2.
According to art. 3 of the Contract, the Claimant is entitled to a monthly salary of KZT
1,800,000 net.
3.
Art. 2 of Annex 2 of the Contract states that “the Employer undertakes to pay the Employee
a monthly amount of money from sponsorship funds in proportion to the time worked (…)”
4.
On 16 November 2021, the Respondent issued a letter of guarantee (hereinafter: the
Letter) which states as follows:
“JSC FC Shakhter <…>, represented by its Executive director Urazaev E. Zh., guarantees to pay
the bonus for participation in the OLIMPBET Football Championship among the teams of the
Premier League and the Kazakhstan Football Cup in the amount of 1,296,875 (one million two
hundred ninety six thousand eight hundred seventy five) Tenge. I undertake to pay this amount
after receipt of sponsorship funds to the bank account of the JSC on or before 20 February
2022. The payment of the above premium remuneration to be made by the Employer in form
of money bank transfer to your card account. We reserve the right to pay before the
abovementioned deadline.”
5.
On 5 May 2022, the Claimant sent a default notice to the Respondent requesting the
payment of KZT 1,296 875,00 as outstanding bonus payment and gave a deadline of 11
days to comply.
6.
On 16 May 2022, the Respondent replied to the previous notice stating that the payment
of the bonus depended on the receipt of sponsorship funds.
II. Proceedings before FIFA
7.
On 24 May 2022, the Claimant 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
8.
According to the Claimant, the Respondent did not include to it an amount of
compensation for unused leave “which is obligatory in line with provisions of labour law of
the Republic of Kazakhstan”.
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9.
The Claimant deems he is entitled to receive the bonus payment as mentioned in the
guarantee letter No. 1029 dated 16 November 2021 in due amount of KZT 1,296,875.
10. The Claimant states that the Respondent has undertaken to provide the Claimant with a
basic paid annual leave of 28 calendar days, “which shall be payable in form of
compensation for its non-use in accordance with the laws of Kazakhstan”.
11. The Claimant states that “As the National Bank of Kazakhstan set the base interest rate at
level of 14,0% p.a., the Respondent shall additionally pay the Claimant a penalty (interest rate)
of 17,5% (14,0*1,25) p.a. from amounts of the overall final settlement under the Contract since
the moment of the above payments became outstanding”.
12. The Claimant filed the following requests for relief:
condemn the Respondent, FC Shakhter Karaganda, to pay the Claimant, Mr Yauheni Shykauka,
the following outstanding amounts:
- KZT 1 296 875,00 net as premium bonus payments for participation in Kazakhstan domestic
competitions of season-2021;
- KZT 1 628 519,79 net as compensation for unused annual leave.
condemn the Respondent, FC Shakhter Karaganda, to pay the Claimant, Mr Yauheni Shykauka,
a penalty (interest) at the rate of 17,5% p.a. from each due amount since 3 November 2021.
b. Position of the Respondent
13. The Respondent argues that the Letter “serves more to indicate the intentions of the Club,
but is not equated to an agreement and similar legally significant documents. Based on the
wording of the Guarantee letter, which contains a clause on the receipt of sponsorship funds,
this can only be interpreted as the Club's intention to pay a bonus, depending on the condition
for the receipt of such funds to the Club's settlement account”.
14. The Respondent further states that the Annex of the Contract “only indicates the possibility
of paying a bonus by the employer and such payment depends entirely on the discretion of the
employer”.
15. As for the paid leave, the Respondent states that “the Claimant provides a calculation of the
days of paid leave due to the Player, then I would like to draw your attention to the fact that
they are inaccurate.
The period of work Y. Shykauka: from 16/07/2021 to 29/11/2021 = 4.5 months
The number of vacation days under the contract - 28 calendar days for a full year worked
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28/12 months x 4.5 months worked = 10.48 days (according to the rules for rounding numbers,
this figure gives us a full 10 days of paid leave, and not 11, as the Defendant states).”
16. The Respondent further states that “on the date of dismissal, he was entitled to
compensation for unused vacation only for 1 (one) day, and not 11 (eleven) as claimed”.
17. The Respondent filed the following requests for relief:
JSC Football Club Shakhter, hereby requests FIFA DRC:
To satisfy the claims of the Claimant Yauheni Shykauka - turn down
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 Single Judge)
analysed whether he was competent to deal with the case at hand. In this respect, he took
note that the present matter was presented to FIFA on 24 May 2022 and submitted for
decision on 20 July 2022. Taking into account the wording of art. 34 of the October 2021
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 Single Judge 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 (March 2022), the Single Judge is
competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a Belarusian player and a Kazakh club.
20. Subsequently, the Single 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 Players (March 2022) and
considering that the present claim was lodged on 24 May 2022, the same edition of said
regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
21. The Single Judge recalled the basic principle of burden of proof, as stipulated in art. 13
par. 5 of the Procedural Rules, according to which a party claiming a right on the basis of
an alleged fact shall carry the respective burden of proof.
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c. Merits of the dispute
22. His competence and the applicable regulations having been established; the Single Judge
entered into the merits of the dispute. In this respect, the Single Judge started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Single Judge emphasised that in the following
considerations he will refer only to the facts, arguments and documentary evidence,
which he considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
23. The foregoing having been established; the Single Judge moved to the substance of the
matter and took note of the fact that the parties strongly dispute the entitlement of the
Claimant to the requested amounts.
24. In this context, the Single Judge acknowledged that his task was to determine if the
Claimant is entitled to the requested amount and if based on the evidence presented by
the parties, whether the claimed amounts had in fact remained unpaid by the
Respondent and, if so, whether the latter had a valid justification for not having complied
with its financial obligations.
25. The Single Judge observed that the Respondent alleged that the Claimant is not entitled
to the amounts claimed since the payment of the amount was subject to the successful
receipt of sponsorships and on the other hand, he is not entitled to the number of unused
holidays claimed.
26. However, the Single Judge underlined that against the arguments of the Respondent, the
parties did not establish specific conditions upon which the Respondent was to receive
the said sponsorships and more importantly, the Claimant had no influence over the
receipt of the sums. Hence, the Single Judge found that the Claimant was entitled to the
amount requested as per the terms of the Letter.
27. In view of the foregoing and bearing in mind the basic legal principle of pacta sunt
servanda, which in essence means that agreements must be respected by the parties
in good faith, the Respondent is held liable to pay the Claimant the outstanding amounts
deriving from the contract concluded between the parties and the Letter, namely KZT
1,296,875.
28. Having established the above, the Single Judge recalled the content of 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. With this in mind, the Single Judge deemed
that it was up to the player to prove that his entitlement since the Respondent contested
this argument.
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29. In light of the above and taking into consideration the club’s argumentation, the Single
Judge understood that the player did not meet his burden of proof in order to
demonstrate that he was entitled to 11 days as unused holidays. Notwithstanding the
above and since the Respondent has admitted the debt of KZT 60,000, corresponding to
the salary of 1 day as unused holidays, the Single Judge decided that the referred amount
shall be awarded.
30. Having established the above, the Single Judge turned to the Claimant’s requests for
17,5% interest on the aforementioned amounts solely based on the laws of the Republic
of Kazakhstan.
31. In this respect, the Single Judge confirmed that the applicable regulations in this case are
the FIFA regulations and in the alternative Swiss law, not Kazakhstani law.
32. In accordance with the Regulations, the Single Judge emphasised that national law may
be taken into account, not applied; and especially in those cases where the application of
Art. 17 of the Rules would result - a hypothesis not present in the present dispute. In this
regard, the Single Judge recalled the constant jurisprudence of the Dispute Resolution
Chamber according to which the Rules and general legal principles take precedence over
national law.
33. The Single Judge underlined that the objective of the Regulations in general is to create a
standard regulatory framework to which all actors within the football community are
bound and can rely on. This objective would not be achievable if the DRC had to apply the
national law of a specific party in every dispute brought before it.
34. Therefore, the Single Judge considered that it is not appropriate for the present case to
apply specific aspects of a particular national law, but rather the Regulations, general
principles of law and, where it exists, the well-established case law of the DRC.
35. In view of the above, the Single Judge considered that the player is not entitled to the
interest rate claimed. Consequently, the Single Judge rejected this request of the
Claimant.
36. Lastly, taking into consideration the Claimant’s request as well as the constant practice of
the Football Tribunal in this regard, the Single Judge decided to award the Claimant
interest on the aforementioned amounts at the rate of 5% p.a. as of the due date until
the date of effective payment.
ii. Compliance with monetary decisions
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37. Finally, taking into account the applicable Regulations, the Single Judge referred to art. 24
par. 1 and 2 of the Regulations, which stipulate that, with its decision, the pertinent FIFA
deciding body shall also rule on the consequences deriving from the failure of the
concerned party to pay the relevant amounts of outstanding remuneration and/or
compensation in due time.
38. In this regard, the Single Judge highlighted that, against clubs, the consequence of the
failure to pay the relevant amounts in due time shall consist of a ban from registering any
new players, either nationally or internationally, up until the due amounts are paid. The
overall maximum duration of the registration ban shall be of up to three entire and
consecutive registration periods.
39. Therefore, bearing in mind the above, the Single Judge decided that the Respondent must
pay the full amount due (including all applicable interest) to the Claimant within 45 days
of notification of the decision, failing which, at the request of the Claimant, a ban from
registering any new players, either nationally or internationally, for the maximum
duration of three entire and consecutive registration periods shall become immediately
effective on the Respondent in accordance with art. 24 par. 2, 4, and 7 of the Regulations.
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 Single Judge recalled that the above-mentioned ban will be lifted immediately and
prior to its complete serving upon payment of the due amounts, in accordance with art.
24 par. 8 of the Regulations.
d. Costs
42. The Single Judge referred to art. 25 par. 1 of the Procedural Rules, according to which
“Procedures are free of charge where at least one of the parties is a player, coach, football
agent, or match agent”. Accordingly, the Single Judge decided that no procedural costs
were to be imposed on the parties.
43. Likewise, and for the sake of completeness, the Single Judge recalled the contents of art.
25 par. 8 of the Procedural Rules and decided that no procedural compensation shall be
awarded in these proceedings.
44. Lastly, the Single Judge 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, Yauheni Shykauka, is partially accepted.
2.
The Respondent, Shakhter, has to pay to the Claimant, the following amount(s):
- KZT 1,356,875 as outstanding remuneration plus 5% interest p.a. as follows:
On KZT 60,000 from 1 December 2021 until the date of effective payment.
On KZT 1,296,875 from 21 February 2022 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 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 of the
ban shall be of up to three entire and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee in the event that full payment (including all applicable interest) is still not
made by the end of the three entire and consecutive registration periods.
6.
The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of
Players.
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this
decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request
of a party within five days of the notification of the motivated decision, to publish an
anonymised or a redacted version (cf. article 17 of the Procedural Rules).
CONTACT INFORMATION
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