Labour Disputes
Texto da decisão
REF FPSD-8128
Decision of the
Dispute Resolution Chamber
passed on 25 January 2023
regarding an employment-related dispute concerning the player Martin
VASILEV TOSHEV
BY:
Dana Al-Noaimi (Qatar), Single Judge of the Dispute Resolution Chamber
CLAIMANT:
Martin VASILEV TOSHEV, Bulgaria
Represented by Márton Kiss
RESPONDENT:
Shakhter, Kazakhstan
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I. Facts of the case
1.
On 6 May 2021, the Bulgarian player, Martin Vasilev Toshev (hereinafter: Claimant or
player) and the Kazakh club, Shakhter (hereinafter: club or Respondent) concluded an
employment contract (hereinafter: contract) valid as from 6 May 2021 until 30 November
2021.
2.
According to the contract, the Respondent undertook to pay the Claimant a monthly
salary of Kazakhstan Tenge (KZT) 800,000 net, payable until the 10th day of the following
month.
3.
Art. 3.6 of the contract reads as follows: “The Club has the right to establish bonus payments
to the Employee for the achieved sports results in accordance with Appendix No. 2”.
4.
On 16 November 2021, the club issued a “letter of guarantee” to the player, according to
which the Respondent guaranteed to pay the bonus related to the “participation in the
OLIMPBET Championship of the Republic of Kazakhstan among the Premier League teams and
Cup of the Republic of Kazakhstan” in the amount of KZT 1,912,500 until 20 February 2022.
II. Proceedings before FIFA
5.
On 7 November 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
6.
In his claim, the Claimant requested payment of KZT 1,912,500, corresponding to the
outstanding bonus, plus 5% interest p.a. as of 21 February 2021.
7.
In his claim, the player argued that the club failed to remit the claimed amount upon
expiry of the contract.
8.
In this context, the player held that the bonus amount was acknowledged with the
guarantee letter dated 16 November 2021, and fell due on 20 February 2022. He insisted
that the guarantee letter was not conditional.
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b. Position of the Respondent
9.
In its reply, the club rejected the player’s claim.
10. The club insisted that it fulfilled its financial obligation towards the player.
11. The club held that the guarantee letter was issued upon the condition that the club
receives the amounts from the sponsors and since this did not happen, the payment is
not due.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
First of all, the Single Judge (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 7 November 2022 and submitted for decision
on 25 January 2023. Taking into account the wording of art. 34 of the October 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.
2.
Subsequently, the Single Judge referred to art. 2 par. 1 and art. 24 par. 1 lit. a) of the
Procedural Rules and observed that in accordance with art. 23 par. 1 in combination with
art. 22 par. 1 lit. b) of the Regulations on the Status and Transfer of Players (October 2022),
he is competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a Bulgarian player and a Kazakh club.
3.
Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he confirmed that, in accordance with art. 26 par.
1 and 2 of the Regulations on the Status and Transfer of Players (October 2022 edition),
and considering that the present claim was lodged on 7 November 2022, the July 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 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. Likewise, the Single Judge
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).
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c. Merits of the dispute
5.
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 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
6.
The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the parties dispute if the Claimant is entitled to the
outstanding remuneration claimed.
7.
The Single Judge noted that the Respondent brought forward that the guarantee letter
was conditional and therefore not due and that it did not have the obligation to pay the
player.
8.
In this regard, the Single Judge recalled 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.
9.
On account of the above, the Single Judge duly noted that the club issued a guarantee
letter regarding a bonus to be paid on 20 February 2022 and finally failed to do so. Since
the contract foresees bonus payments and the club acknowledged them, the Single Judge
had no other option than to award the player this amount. In doing so, the Single Judge
rejected the club’s argument that said bonus was “conditional”.
ii. Consequences
10. As a consequence, and in accordance with the general legal principle of pacta sunt
servanda, the Single Judge decided that the Respondent is liable to pay to the Claimant
the amount of KZT 1,912,500 as outstanding bonus.
11. In addition, 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 at the rate of 5% p.a. on the outstanding amounts as from 21 February
2022 until the date of effective payment.
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iii. Compliance with monetary decisions
12. 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.
13. 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.
14. 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.
15. 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.
16. 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
17. 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.
18. 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.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Martin VASILEV TOSHEV, is accepted.
2.
The Respondent, Shakhter, has to pay to the Claimant, the following amount(s):
- KZT 1,912,500 as outstanding remuneration plus 5% interest p.a. as from 21 February
2022 until the date of effective payment;
3.
Full payment (including all applicable interest) shall be made to the bank account
indicated in the enclosed Bank Account Registration Form.
4.
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.
5.
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.
6.
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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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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