Labour Disputes
Texto da decisão
REF. FPSD-9567
Decision of the
Dispute Resolution Chamber
passed on 27 April 2023
regarding an employment-related dispute concerning
the player Guram Tetrashvili
BY:
Frans de Weger (the Netherlands), Chairperson
Khadija Timera (Senegal), member
Laurel Vaurasi (Fiji), member
CLAIMANT:
Guram Tetrashvili, Russia
Represented by SILA International Lawyers
RESPONDENT:
Football Club Okzhetpes, Kazakhstan
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I. Facts of the case
1. On 1 July 2022, the Russian player Guram Tetrashvili (hereinafter: the player or Claimant) and
the Kazakh club “Football Club Okzhetpes” (hereinafter: the club or Respondent) concluded an
employment contract (hereinafter: the Contract) valid as from the date of signature until
7 November 2022.
2. In accordance with clause 3.1 of the Contract, the Respondent undertook to pay the Claimant
a monthly salary of KZT 1,500,030 net by no later than the 10th day of each following
respective month.
3. In accordance with clause 5 of the Contract, the Claimant was entitled to one month of annual
paid leave.
4. Furthermore, in accordance with clause 11.1 of the Contract, the Respondent undertook to
extend the Contract of the Claimant from 7 November 2022 to 30 November 2023, with a
base monthly salary of KZT 3,000,060 net applicable as from 5 January 2023, if the
Respondent was promoted to the Kazakh Premier League.
5. In addition to the Contract, the parties signed an additional agreement (hereinafter: the
Additional Agreement) in accordance with which the Respondent undertook to pay the
Claimant per-match bonus payments as follows:
“1. The Employee shall be paid bonus for win in home and away matches of Kazakhstan First
League calculated from KZT 309 000 (three hundred thousand) including taxes (100 %) as follows:
a) the bonus is paid in the amount of 100 % of mentioned amount in case of participation of the
Employee in the starting eleven during the match,
b) the bonus is paid in the amount of 20 % of mentioned amount if the Employee is included in
the match report, but did not participate in the match,
c) the bonus is paid in the amount from 20 % to 100 % of mentioned amount if the Employee
came on as a substitute during the match,
d) the Employee (reserve goalkeeper) shall be paid the bonus in the amount of 50% of
mentioned amount,
e) in exceptional cases by the decision of the Employer the bonus is paid in the amount from
150% to 200% of mentioned amount.
This Additional Agreement is an integral part of the employment contract 01.07.2022 no. 64”
6. On an unspecified date during the term of the Contract, he Respondent won its division and
officially was promoted to the Kazakh Premier League.
7. On 3 January 2023, the Claimant put the Respondent in default of payment, requesting four
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monthly salaries between August 2022 and December 2022, as well as outlining that the
Claimant has been suspended without justification from the training camp of the
Respondent and is training on his own. The Claimant requested payment of the outstanding
amount within 15 days and immediate reintegration into the first team.
8. On 18 February 2023, the Respondent replied to the default notice, outlining that the
Claimant had allegedly calculated the outstanding amount incorrectly, not taking into
account the relevant income tax deductions. However, the Respondent acknowledged that
there were salaries which had not been remitted due to funding problems, and stated that
it was unsure when the Claimant would receive the amounts. As to the alleged exclusion
from training, the Respondent asserted that this was not true, and claimed that it internally
possesses video evidence of the Claimant’s participation, as well as confirming that it was
bearing the costs of accommodation and food.
9. On 21 February 2023, the Claimant unilaterally terminated the Contract.
10. On 23 February 2023, the Respondent sent the Claimant an offer to conclude a settlement
agreement, in accordance with which it undertook to pay the Claimant KZT 8,500,000 net by
no later than 10 March 2023.
11. The following day, the Claimant rejected said offer, and counter-offered with the amount of
KZT 38,807,227.7 net.
12. On 1 March 2023, the Respondent rejected said offer and provided an improved offer of
KZT 11,500,000 net. The Claimant never replied to such offer and lodged the present claim
shortly thereafter.
pg. 4
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II. Proceedings before FIFA
1. On 10 March 2023, lodged a claim before FIFA. A brief summary of the parties’ submissions
is outlined below.
a. Position of the Claimant
2. The Claimant outlined that the Respondent had failed to remit five monthly salaries by the
time the Contract was terminated, in the total amount of KZT 8,806,527.74. This amount was
calculated as four monthly salaries of KZT 1,500,030 for the months of August 2022 until
November 2022; the Claimant was subsequently on unpaid leave during December 2022,
and in January 2023, his salary in the amount of KZT 2,806,627.74 was not paid.
3. As a result, and by also having put the Respondent in default of payment of the outstanding
amount which exceeded two months, and granting a deadline of 15 days, which in practice
exceeded one month before terminating the Contract, the Claimant sustains that he had just
cause to terminate the Contract.
4. The Claimant requested outstanding remuneration of KZT 11,453,387.70 net, as well as
KZT 27,750,555 net as compensation.
5. As to interest, the Claimant requested 5% p.a. as from the respective due dates on the
outstanding remuneration, and as from the date following the termination on the
compensation.
6. Lastly, the Claimant requested the imposition of a sanction on the Respondent.
b. Position of the Respondent
7. In its reply, the Respondent alleged that several incremental payments were made to the
Claimant, which the latter did not address in his statement of claim, thereby reducing the
overall amount of outstanding remuneration owed to the Claimant. The totality of these
amounts was KZT 2,875,000.
8. The Respondent further alleged that the Claimant should not be entitled to receive the full
salary for November 2022 and February 2023 when taking into consideration the respective
annual leave.
9. The Respondent further argued that any amounts due to the Claimant should be reduced by
KZT 188,455, corresponding to the costs of the flight ticket for the Claimant to return to
Kazakhstan following the training camp in Türkiye.
10. Thus, the Respondent argued that the outstanding remuneration payable to the Claimant
should be KZT 8,930,914 net.
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11. As to compensation, the Respondent argued that national law must be taken into
consideration, and that in accordance with the Kazakh Labour Code, said compensation shall
be limited to one monthly salary.
12. In conclusion, the Respondent requested the outstanding remuneration payable to the
Claimant to be reduced to KZT 8,930,914 net, and the compensation to KZT 3,000,060 net.
c. Comments of the Claimant
13. The Claimant argued firstly that the payments made by the Respondent in the amount of
KZT 1,375,000 corresponded to bonus payments under the Contract, as opposed to salaries
thereunder.
14. The Claimant supported this line of argument with the fact that the payments had occurred
immediately after the respective matches to which the bonus was related (providing
evidence of the dates thereof), as well as submitting a copy of the Additional Agreement,
which outlined that the Claimant would be entitled to receive per-match-bonus payments of
up to KZT 309,000. The Claimant also argued that he only claimed the salaries under the
Contract, and that these amounts of KZT 1,375,000 are unrelated thereto.
15. The Claimant further argued that the annual leave for November 2022 was miscalculated by
the Respondent, as the incorrect number of applicable days was used in the calculation of
the latter, and should correspond to the value of KZT 446,304 net.
16. The Claimant also argued that the outstanding remuneration for February 2023 was
calculated incorrectly, and insisted on the figure of KZT 2,250,045 net.
17. The Claimant also argued that the Respondent doubly taxed the unused annual leave for the
compensation twice at 10%, the flat income tax rate. The Claimant outlined that the figure
for unused annual leave to which he is entitled is KZT 396,715 net.
18. As to the new calculation for the salary of November 2022 and January 2023, the Claimant
accepted these figures and amended his petition accordingly.
19. Regarding the flight ticket, the Claimant rejected that this should be deducted, as the
Respondent should cover all travel costs in relation to the Contract, and he always assumed
that the contractual relationship would continue beyond the training camp in Türkiye.
20. Lastly, as to compensation, the Claimant insisted that national law is not applicable, and
requested the residual value of the Contract.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or
DRC) analysed whether it was competent to deal with the case at hand. In this respect, it
took note that the present matter was presented to FIFA on 10 March 2023 and submitted
for decision on 27 April 2023. Taking into account the wording of art. 34 of the March 2023
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.
2.
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 (October 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 a player from
Russia and a club from Kazakhstan.
3.
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 (March 2023 edition), and
considering that the present claim was lodged on 10 March 2023, the October 2022 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
4.
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
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
5.
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.
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i. Main legal discussion and considerations
6.
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 justice of the early
termination of the contract by the Claimant, based on the alleged non-payment of certain
financial obligations by the Respondent as per the contract, in accordance with art. 14bis
of the Regulations.
7.
In this context, the Chamber acknowledged that its task was to determine, 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 formal pre-requisites of art. 14bis of the
Regulations had in fact been fulfilled.
8.
The Chamber then referred to the wording of art. 14bis par. 1 of the Regulations, in
accordance with which, if a club unlawfully fails to pay a player at least two monthly salaries
on their due dates, the player will be deemed to have a just cause to terminate his contract,
provided that he has put the debtor club in default in writing and has granted a deadline
of at least 15 days for the debtor club to fully comply with its financial obligation(s).
9.
The Chamber noted that the Claimant claims not having received his remuneration
corresponding to several months between July 2022 and February 2023, in a total pro-rata
amount of more than six monthly salaries. Furthermore, the Chamber noted that the
Claimant has provided written evidence of having put the Respondent in default on
3 January 2023, i.e. at least 15 days before unilaterally terminating the contract on
21 February 2023.
10. The Chamber also noted that in the case at hand the Respondent bore the burden of
proving that it indeed complied with the financial terms of the contract concluded between
the parties. Nonetheless, the Respondent, beyond contesting the overall figure which was
outstanding at the time of termination, did not prove beyond doubt the payment of the
amounts claimed as outstanding by the Claimant, in any event to the extent that the
requirements of art. 14bis would not be met in the case at hand.
11. Thus, the Chamber concluded that the Claimant had a just cause to unilaterally terminate
the contract, based on art. 14bis of the Regulations.
ii. Consequences
12. Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent.
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13. The Chamber observed that the Claimant argued having been entitled to the following
instalments at the time of the contractual termination, in total KZT 12,561,931 net:
-
Salary of July 2022: KZT 1,500,030 net;
-
Salary of August 2022: KZT 1,500,030 net;
-
Salary of September 2022: KZT 1,500,030 net;
-
Salary of October 2022: KZT 1,500,030 net;
-
Salary of November 2022: KZT 115,387 net;
-
Paid leave of November 2022: KZT 446,304 net;
-
Salary of January 2023: KZT 3,000,060 net;
-
Salary of February 2023: KZT 3,000,060 net.
14. At the same time, the Chamber noted that the Respondent proved having remitted the
amount of KZT 2,875,000 net.
15. In this regard, the Chamber decided to reject the line of argument as to the above amounts
being bonus payments, in context of the fact that the proofs of payment submitted by the
Respondent clearly referred to “salary payments”. By the same token, the fact that the
parties signed the Additional Agreement was equally not considered indicative of these
payments per se, and the connection of the individual payments thereto was deemed to
be speculative by the Claimant.
16. The Chamber further took note of the line of argument of the Claimant that the cost of the
flight tickets should be taken into consideration for the calculation of the outstanding
remuneration due to the Claimant. Notwithstanding, it deemed that said amount should
not be considered, based on the fact that there is neither a regulatory nor a contractual
basis for this.
17. Thus, the Chamber established that the amount of KZT 2,875,000 net shall be considered
remitted and therefore deducted from the amount outlined above.
18. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the Respondent is liable to pay to the Claimant the amounts
which were outstanding under the contract at the moment of the termination, i.e.
KZT 9,686,931 net (i.e. KZT 12,561,931 net minus KZT 2,875,000 net).
19. In addition, 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 at the rate
of 5% p.a. on the outstanding amounts as from following dates:
-
On the amount of KZT 125,060, as from 11 September 2022 until the date of effective
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payment;
-
On the amount of KZT 1,500,030, as from 11 October 2022 until the date of effective
payment;
-
On the amount of KZT 1,500,030, as from 11 November 2022 until the date of
effective payment;
-
On the amount of KZT 561,691.42, as from 11 December 2022 until the date of
effective payment;
-
On the amount of KZT 3,000,060, as from 11 February 2023 until the date of effective
payment;
-
On the amount of KZT 3,000,060, as from 22 February 2023 until the date of effective
payment.
20. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the player by the club in the case at stake. In doing so, the
Chamber firstly 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, and depending on whether the contractual breach falls within the
protected period.
21. In application of the relevant provision, the Chamber held that it first of all had to clarify as
to whether the pertinent employment contract contained a provision by means of which
the parties had beforehand agreed upon an amount of compensation payable by the
contractual parties in the event of breach of contract. In this regard, the Chamber
established that no such compensation clause was included in the employment contract at
the basis of the matter at stake.
22. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the club to the player had to be assessed in application of the
other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that
said provision provides for a non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable.
23. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded
with the calculation of the monies payable to the player under the terms of the contract
from the date of its unilateral termination until its end date. Consequently, the Chamber
concluded that the amount of KZT 30,000,600 net (i.e. the residual value of the Contract or
nine monthly salaries between March 2022 and November 2022, with one month of annual
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paid leave) serves as the basis for the determination of the amount of compensation for
breach of contract.
24. In continuation, the Chamber verified as to whether the player had signed an employment
contract with another club during the relevant period of time, by means of which he would
have been enabled to reduce his loss of income. According to the constant practice of the
DRC as well as art. 17 par. 1 lit. ii) of the Regulations, such remuneration under a new
employment contract shall be taken into account in the calculation of the amount of
compensation for breach of contract in connection with the player’s general obligation to
mitigate his damages.
25. Indeed, the Claimant confirmed having remained unemployed, thus not having mitigated
his losses in accordance with the above-mentioned provision.
26. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the club must pay the amount
of KZT 28,772,225 net to the player, which was to be considered a reasonable and justified
amount of compensation for breach of contract in the present matter. In this respect, the
Chamber confirmed that the Claimant would, in principle, have been entitled to the entire
residual value of the Contract, but equally noted that the latter had limited his request to
a quantum of KZT 38,459,156 net, from which the amount of KZT 9,686,931 net
corresponding to the outstanding remuneration must be deducted to give rise to the
maximum possible compensation of KZT 28,772,225 net. The final amount of
compensation awarded was thus limited to the abovementioned figure in accordance with
the principle of ne ultra petita.
27. Lastly, taking into consideration the player’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the player interest on said
compensation at the rate of 5% p.a. as of 22 February 2023 until the date of effective
payment.
iii. Compliance with monetary decisions
28. 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.
29. 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.
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30. 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.
31. 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.
32. 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
33. 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.
34. 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.
35. 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, Guram Tetrashvili, is partially accepted.
2.
The Respondent, Football Club Okzhetpes, must pay to the Claimant the following
amount(s):
- KZT 9,686,931 net as outstanding remuneration plus interest p.a. as follows:
- 5% interest p.a. over the amount of KZT 125,060 net as from 11 September 2022 until
the date of effective payment;
- 5% interest p.a. over the amount of KZT 1,500,030 net as from 11 October 2022 until the
date of effective payment;
- 5% interest p.a. over the amount of KZT 1,500,030 net as from 11 November 2022 until
the date of effective payment;
- 5% interest p.a. over the amount of KZT 561,691 net as from 11 December 2022 until the
date of effective payment;
- 5% interest p.a. over the amount of KZT 3,000,060 net as from 11 February 2023 until
the date of effective payment;
- 5% interest p.a. over the amount of KZT 3,000,060 net as from 22 February 2023 until
the date of effective payment;
- KZT 28,722,225 net as compensation for breach of contract without just cause plus
5% interest p.a. as from 22 February 2023 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.
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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 Governing the Football
Tribunal).
CONTACT INFORMATION
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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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