Labour Disputes
Texto da decisão
REF. FPSD-14803
Decision of the
Dispute Resolution Chamber
passed on 24 July 2024
regarding an employment-related dispute concerning the player Kai Wint
BY:
Angela COLLINS (Australia)
CLAIMANT:
Kai Wint, Great Britain
RESPONDENT:
FC Merani Tbilisi, Georgia
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REF. FPSD-14803
I. Facts of the case
1.
On 15 March 2024, the British player, Kai Wint (hereinafter: the Player or the Claimant), and
the Georgian club, FC Merani Tbilisi (hereinafter: the Club or the Respondent) entered into
an employment contract (hereinafter: the Contract) valid as from 15 March 2023 until 15
December 2023.
2.
In accordance with the Contract, the Respondent undertook to pay to the Claimant inter
alia GEL 375 per month as well as to cover the living costs during the duration of the
Contract.
3.
By correspondence dated 31 March 2024, the Player contacted the Club’s representative
requesting information regarding his salary and registration process, since his registration
with the Georgian Football Federation (hereinafter: the GFF) had not been finalized.
4.
On 20 May 2023, the Player’s agent was informed by the Club’s representative that the
Player was going to receive his salary that week.
5.
On 26 May 2023, the Player returned back to the UK due to the fact that he had no
accommodation and had not received any of his salaries.
6.
On 5 August 2023, the Club’s representative informed the Player that the Club is interested
in his services and that during the week he would receive updates regarding his return to
Georgia and the upcoming games.
7.
On 12 September 2023, the Club’s representative sent the Player a mutual termination
agreement.
8.
The mutual termination agreement was received by the Player on 12 September 2023.
However, the Player alleges that the agreement was antedated, with the date of signature
appearing as 1 July 2023.
9.
In the mutual termination agreement, the parties concluded the following:
“The Player and the Club will terminate the professional contract signed by the Player and the
Club on July 01, 2023.
The Player agrees to release the Club from any payments that are otherwise due under the
contract and any other obligations under the player contract after the effective date.
The Club agrees to release the Player from any obligations to train and/or play for the Club and
any other obligations under the player contract after the effective date of this Agreement.
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REF. FPSD-14803
The Club agrees to process the Player’s deregistration with the Georgian Football Federation
(hereinafter “the GFF”) by the effective date of this Agreement. The Player agrees to provide any
information and otherwise cooperate with the process of deregistration as are necessary under
the rules of the GFF and FIFA.
The Club agrees to cooperate fully with the GFF in freely providing an International Transfer
Certificate for the Player to any other club or federation requesting it pursuant to FIFA Regulation
No. 9. The Player agrees to cooperate and perform any required action required by FIFA to
effectuate the International Transfer Certificate.
Each party promises to provide the other with any documentation in connection with the Player’s
signing, employment and termination with the Club”.
II. Proceedings before FIFA
10. On 31 May 2024, the Claimant filed the claim at hand before FIFA. A summary of the parties’
position is detailed below.
a. Position of the Claimant
11. The claimant requested the following relief:
“As a consequence of all of the above, I am requesting the FIFA DRC to sanction the Club, to determine
that it terminated the employment contract without just cause on 12 September 2023, and to order
the Club to pay me the following amounts:
I.
GEL 2,625 and GBP 112,68 as outstanding salaries, + 5% interest p.a. as of the relevant
due date until the effective day of payment:
• GEL 375 + 5% as of 1 April 2023
• GEL 375 + 5% as of 1 May 2023
• GEL 375 + 5% as of 1 June 2023
• GEL 375 + 5% as of 1 July 2023
• GEL 375 + 5% as of 1 August 2023
• GEL 375 + 5% as of 1 September 2023
• GEL 375 + 5% as of 12 September 2023
• GBP 112,68 + 5% as of 26 May 2023
II.
GEL 1,125 as compensation for breach of contract + 5% interest p.a. as of 12 September
2023 until the effective day of payment and GEL 2,250 as additional compensation + 5%
interest p.a. as of 12 September 2023.
III.
In addition, I am requesting the FIFA DRC to impose sporting sanctions on the Club for the
breach of contract within the protected period.”
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REF. FPSD-14803
12. Regarding the amount requested of GBP 112,68, the Player specified that this amount
corresponds to the flight ticket he paid to travel from Georgia back home to the UK,
providing the relevant proof of payment.
13. Finally, according to the Player, the Respondent forced him into signing the mutual
termination agreement against his will.
14. In particular, regarding the mutual termination agreement the Player alleges that “the Club
took advantage of my distress and my inexperience in order to try to get rid of me without
liability, which is all reflected in the terms of the Termination Letter. There is no compensation
nor benefit whatsoever and it is backdated. Obviously the terms of the Termination Letter are
completely unbalanced, abusive and untrue. Therefore, it cannot have any effect”.
b. Position of the Respondent
15. Despite being invited to do so, the Respondent did not respond to the claim.
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REF. FPSD-14803
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
16. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter: the Single Judge)
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 31 May 2024 and submitted for
decision on 24 July 2024. 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.
17. Furthermore, 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 par. 1 lit. b) of the
Regulations on the Status and Transfer of Players (June 2024 edition), the Single Judge is
competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a British player and a Georgian club.
18. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, she confirmed that, in accordance with art. 26 par.
1 and 2 of the Regulations on the Status and Transfer of Players (June 2024 edition), and
considering that the present claim was lodged on 31 May 2024, the February 2024 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
19. 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 she
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
20. Having established the competence and the applicable regulations, 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
she considered pertinent for assessing the matter at hand.
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REF. FPSD-14803
i. Main legal discussion and considerations
21. The Single Judge then moved to the substance of the matter and took note of the main
point of contention between the Parties.
22. The Single Judge has noted that the Parties concluded an employment contract valid from
15 March 2023 until 15 December 2023.
23. In this context and as a preliminary remark, the Single Judge determined that even though
the copy of the employment contract provided by the Claimant was not signed by both
parties, the Claimant provided enough evidence to prove his employment relationship with
the Club. In particular, the Claimant provided photos with the Club’s officials and WhatsApp
conversations.
24. Moreover, the Single Judge observed that the Parties signed a mutual termination
agreement.
25. In this context, the Single Judge acknowledged that her task was to determine whether the
mutual termination agreement signed by the Parties is valid and if not, whether the
Contract was terminated despite the invalidity of the mutual termination agreement.
26. As a preliminary remark, the Single Judge noted that the Player alleged of being coerced by
the Club into signing the termination agreements against his will. In the case at hand, the
Single Judge determined that the Player has not proven that he was forced to sign the
mutual termination agreement or even submitted any evidence in this respect and
therefore such allegation will not be taken into account for the determination of the validity
of the agreement.
27. In continuation, the Single Judge recalled that as a general rule, the parties may decide to
terminate their contractual relationship prematurely by mutual agreement.
28. Nevertheless, the Single Judge referred to the CAS jurisprudence and in particular to the
decision CAS 2021/A/7824 Mahamadou Traoré c. CS Constantine according to which, CAS
determined that based on the Swiss Federal Tribunal’s jurisprudence, it is important to
analyse whether, in the context of the signing of a termination agreement, (i) the player
was given a period of reflection and (ii) the agreement contained reciprocal concessions of
equivalent value.
29. In the case at hand, the Single Judge noted that regarding the first condition, there is no
evidence on file to assess whether the Player had enough time for reflection.
30. Regarding the second condition, she considered that it does not seem that the parties have
made comparable concessions due to the fact that based on the agreement, the Player has
released the Club from any financial obligation. In exchange the Club agreed to deregister
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REF. FPSD-14803
the player from the GFF and deliver his ITC when applicable and release the player from
his obligation to train and play for the Club.
31. Nevertheless, the Single Judge observed that the Club had not paid any salary to the Player
since the signature of the contract and did not provide the accommodation as agreed upon
in the Contract. In addition, the Player alleged that the Club never registered him with the
GFF. Such allegation has not been disputed by the Respondent.
32. Therefore, the Single Judge concluded that renouncing all the salaries in exchange of his
deregistration from the GFF and the delivery of the ITC cannot be considered reciprocal
concessions of equivalent value. In addition, the fact that the player was not registered with
the GFF and his ITC was not received by the latter, makes these concessions even more
unbalanced.
33. Consequently, in view of all the above, the mutual termination agreement shall be
considered as invalid.
34. In continuation, and having established that the mutual termination agreement is null and
void, the Single Judge had to determine whether the Contract had been terminated despite
the invalidity of said agreement.
35. In this regard, based on all the above and the fact that the Club did not take the necessary
steps in order to register the Player with the GFF, arrange his accommodation or pay his
salaries, the Single Judge considered that it can be inferred that the Club did not wish to
continue its employment relationship with the Player.
36. Consequently, the Single Judge concluded that the Club unilaterally terminated the
contract without just cause on 12 September 2023 (i.e., on the day the Player received the
termination agreement). Therefore, since the provisions of the mutual termination
agreement are invalid, art. 17 of the RSTP applies in order to determine the consequences.
ii. Consequences
37. Having stated the above, the Chamber turned its attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
38. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are equivalent to 6 salaries under
the contract, amounting to GEL 1,978.6, i.e., 16 days of salary for March 2023 and the
months of April until August 2023 and the reimbursement of the flight ticket of GBP 112.68
based on the relevant proof of payment provided by the Player.
39. 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
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REF. FPSD-14803
which were outstanding under the contract at the moment of the termination, i.e., GEL
1,978.6 (GEL 357x 5 months+ (GEL 12,10 per day x 16 days)) and GBP 112.68.
40. 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 follows:
•
•
•
•
•
•
•
5% interest p.a. over GEL 193,6 as from 1 April 2023
5% interest p.a. over GEL 357 as from 1 May 2023
5% interest p.a. over GBP 112.68 as from 26 May 2023
5% interest p.a. over GEL 357 as from 1 June 2023
5% interest p.a. over GEL 357 as from 1 July 2023
5% interest p.a. over GEL 357 as from 1 August 2023
5% interest p.a. over GEL 357 as from 1 September 2023
41. 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.
42. 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.
43. 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.
44. 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 GEL 1,255.3 (i.e., the months of September until December
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2023) serves as the basis for the determination of the amount of compensation for breach
of contract.
45. 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.
46. The Single Judge then referred to art. 17 par. 1 lit. ii) of the Regulations, according to which,
in case the player did not sign a new contract following the termination of his previous
contract, the compensation shall be equal to the residual value of the contract was
prematurely terminated.
47. Consequently, on account of all the above-mentioned considerations and the specificities
of the case at hand, the Chamber decided that the club must pay the amount of GEL 1,255.3
to the player (i.e. September to November and 15 days of December 2023), which was to
be considered a reasonable and justified amount of compensation for breach of contract
in the present matter.
48. 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 12 September 2023 until the date of effective
payment.
iii. Compliance with monetary decisions
49. 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.
50. 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.
51. 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
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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.
52. 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.
53. 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
54. 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.
55. 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.
56. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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REF. FPSD-14803
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Kai Wint, is partially accepted.
2.
The Respondent, FC Merani Tbilisi, must pay to the Claimant the following amount(s):
- GEL 1,978.6 as outstanding remuneration plus 5% interest p.a. as follows:
• 5% interest p.a. over GEL 193,6 as from 1 April 2023 until the date of effective
payment;
• 5% interest p.a. over GEL 357 as from 1 May 2023 until the date of effective payment;
• 5% interest p.a. over GEL 357 as from 1 June 2023 until the date of effective payment;
• 5% interest p.a. over GEL 357 as from 1 July 2023 until the date of effective payment;
• 5% interest p.a. over GEL 357 as from 1 August 2023 until the date of effective
payment;
• 5% interest p.a. over GEL 357 as from 1 September 2023 until the date of effective
payment.
- GBP 112.68 as outstanding remuneration plus 5% interest as from 26 May 2023 until
the date of effective payment.
- GEL 1,255.3 as compensation for breach of contract without just cause plus 5%
interest as from 12 September 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.
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.
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7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-14803
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
Fédération Internationale de Football Association – Legal & Compliance Division
396 Alhambra Circle, 6th floor, Coral Gables, Miami, Florida, USA 33134
legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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