Labour Disputes
Texto da decisão
REF. FPSD-13848
Decision of the
Dispute Resolution Chamber
passed on 22 April 2024
regarding an employment-related dispute concerning
the player Pavel Zabelin
COMPOSITION:
Lívia Silva Kägi (Brazil & Switzerland), Deputy Chairperson
Michele Colucci (Italy), member
André dos Santos Megale (Brazil), member
CLAIMANT:
Pavel Zabelin, Belarus
Represented by Mr Alexander Sverchinsky
RESPONDENT:
FC Tobol, Kazakhstan
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REF. FPSD-13848
I. Facts of the case
1.
On 12 July 2023, the Belarussian player Pavel Zabelin (hereinafter: Claimant or player) and
the Kazakh club FC Tobol (hereinafter: club or Respondent) concluded an employment
contract (hereinafter: the Contract) valid as from the date of signature until
30 November 2024.
2.
According to the Contract, the Respondent undertook to pay the Claimant a gross monthly
remuneration of KZT 100,000 payable by no later than the 10th day of each respective
month.
3.
Furthermore, pursuant to art. 11.7 of the Contract, the parties stipulated as follows:
“the parties agree that during the period from 1st to 15th December 2023, the Employer or
Employee may terminate this employment agreement without compensation payments, while
the party initiating the termination must notify the other party in writing on the upcoming
termination at least 5 (five) working days in advance before the date of termination of the
agreement.”
4.
Additionally, pursuant to Annexe 1 of the Contract, the Respondent undertook to pay the
Claimant the following gross amounts:
-
5.
KZT 5,403,495 by no later than 10 August 2023;
KZT 7,719,278 by no later than 10 September 2023;
KZT 7,719,278 by no later than 10 October 2023;
KZT 7,719,278 by no later than 10 November 2023;
KZT 7,719,278 by no later than 10 December 2023;
KZT 7,719,278 by no later than 10 January 2024;
KZT 7,719,278 by no later than 10 February 2024;
KZT 7,719,278 by no later than 10 March 2024;
KZT 7,719,278 by no later than 10 April 2024;
KZT 7,719,278 by no later than 10 May 2024;
KZT 7,719,278 by no later than 10 June 2024;
KZT 7,719,278 by no later than 10 July 2024;
KZT 7,719,278 by no later than 10 August 2024;
KZT 7,719,278 by no later than 10 September 2024;
KZT 7,719,278 by no later than 10 October 2024;
KZT 7,719,278 by no later than 10 November 2024;
KZT 7,719,278 by no later than 30 November 2024.
On 12 December 2023, the Respondent sent the Claimant a draft mutual termination
agreement, dated 11 December 2023, based on art. 11.7 of the Contract – i.e. proposing to
terminate the Contract without any compensation.
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REF. FPSD-13848
6.
On the same day, the Respondent sent the Claimant a notification stating that the last
working day of the latter shall be considered 8 December 2023, and that an outstanding
salary of KZT 2,315,783 and bonus for the Kazakh cup final victory of KZT 2,023,000.
7.
On 16 December 2023, the Claimant replied to the Respondent and stated that he objected
to the termination of the Contract.
8.
On 26 December 2023, the Respondent sent a further correspondence to the Claimant,
informing him that it has entitled to go ahead with the contractual termination despite the
Claimant’s objection, in line with the labour code of Kazakhstan and the regulations of FIFA.
9.
At the beginning of 2024, the Respondent allegedly offered the Claimant various
opportunities to join different teams in Kazakhstan.
10. On 6 February 2024, the Respondent issued a “proof of last contract end declaration”
indicating that the Contract was unilaterally terminated on 11 December 2023.
11. On the same day, the Claimant signed an employment contract with the Russian club FC
Sokol Saratov (hereinafter: the New Club) valid as from the date of signature until
30 June 2024 and with a monthly remuneration of RUB 600,000.
II. Proceedings before FIFA
12. On 6 February 2024, 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
13. In his claim, the player argued that the Respondent abruptly and without any valid
justification terminated the Contract, first offering a mutual termination agreement and
subsequently outlining that this rather represented a unilateral contractual termination.
14. The Claimant insisted that his sporting performance was undoubtedly sufficient, however
that this should not represent a valid reason to terminate an employment contract
prematurely.
15. The Claimant equally emphasised that the termination clause under art. 11.7 of the
Contract is invalid, not only as to its substance, but also considering that the Respondent
did not notify the Claimant at least 5 working days before the end of the period when the
clause could be activated (i.e. 15 December 2023).
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REF. FPSD-13848
16. All in all, the Claimant argued that the Respondent did not have just cause to terminate the
Contract and that this gave rise to compensation.
17. The Claimant requested KZT 66,112,606.45 as net (sic) compensation, stating that income
tax in Kazakhstan and the Kostanay region is “established at a level of roughly 13.5%”, thus
using a figure of KZT 6,673,000 as the monthly salary on which the calculation was based.
18. Lastly, the Claimant requested interest on the above amounts as from the respective due
dates (sic) until the date of effective payment.
b. Position of the Respondent
19. Despite having been invited to do so, the Respondent failed to provide a timely position to
the claim.
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REF. FPSD-13848
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
20. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber)
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 6 February 2024 and submitted for
decision on 22 April 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.
21. Subsequently, the Chamber referred to art. 2 par. 1 of the Procedural Rules and observed
that in accordance with art. 23 par. 2 in combination with art. 22 lit. b) of the Regulations
on the Status and Transfer of Players (February 2024 edition), it is competent to deal with
the matter at stake, which concerns a dispute between a player from Belarus and a club
from Kazakhstan.
22. Subsequently, the Chamber 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 (February 2024
edition), and considering that the present claim was lodged on 6 February 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
23. 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
24. This 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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REF. FPSD-13848
i. Main legal discussion and considerations
25. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the basis of the present dispute was the premature
contractual termination by the Respondent.
26. In this context, the Chamber acknowledged that its task was to determine, based on the
evidence presented by the parties, whether the Respondent had a just cause to
prematurely terminate the Contract, and consequently, whether the Claimant was entitled
to any compensation as a result thereof.
27. The Chamber then referred to its own longstanding jurisprudence, pursuant to which a
premature contractual termination may only be the result of either a serious or frequent
enough breach of contract by the respective counterparty. Where more lenient measures
are available to the parties to remedy their relationship, such measures should be turned
to first before unilaterally terminating the contract. A premature contractual termination
may indeed only be an ultima ratio measure.
28. In the case at hand, the Chamber noted that the Claimant – without any contestation from
the Respondent either in the correspondence submitted to the file or as part of a potential
reply to the claim – was dismissed without any justification or explanation at all.
29. Indeed, the Chamber pointed out that in the absence of any apparent reason for the
contractual termination, the threshold of ultima ratio to justify the Respondent’s
termination was not met.
30. Consequently, the Chamber was able to conclude that the Respondent had no just cause
to unilaterally terminate the Contract before its term.
ii. Consequences
31. With this in mind, the Chamber proceeded to consider the consequences of such unlawful
contractual termination by the Respondent.
32. The Chamber observed that the Claimant confirmed having received all his dues by the
time the Contract was terminated. As such, the Chamber immediately proceeded to
consider the compensation payable to the Claimant as a result of the Respondent’s breach
of contract.
33. As a preliminary remark, the Chamber wished to point out that the Claimant, despite
providing a calculation of his own concerning the net and gross amounts of the sums
requested, did not include either a formal tax invoice, any previous tax deductions
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REF. FPSD-13848
undertaken by the Respondent by virtue of the Contract, or a copy of any relevant domestic
tax law, according to which an accurate conversion could be made.
34. Consequently, the Chamber proceeded with the calculation of compensation using the
figures stipulated contractually.
35. Herewith, 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.
36. In application of the relevant provision, the Chamber held that it first of all had to clarify
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.
37. 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.
38. As a consequence, the Chamber determined that the amount of compensation payable by
the Respondent to the Claimant 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.
39. 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
until its term. Consequently, the Chamber concluded that the amount of KZT 99,234,831
(i.e. the residual value of the Contract, or KZT 5,403,495 corresponding to the pro-rata
salary for December 2023, plus KZT 92,631,336 corresponding to twelve salaries of
KZT 7,719,278 each between January 2024 and November 2024 under Annexe 1 of the
Contract, plus KZT 1,200,000 or twelve salaries of KZT 100,000 each under the Contract)
serves as the basis for the determination of the amount of compensation for breach of
contract.
40. In continuation, the Chamber verified 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
Chamber 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
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REF. FPSD-13848
compensation for breach of contract in connection with the player’s general obligation to
mitigate his damages.
41. Indeed, the player found new employment with the New Club. In accordance with the
pertinent New Contract, the player was entitled to RUB 2,875,862 during the overlapping
period – i.e. KZT 13,976,689. Therefore, the Chamber concluded that the player mitigated
his damages in the total amount of KZT 13,976,689.
42. Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to
which a player is entitled to an amount corresponding to three monthly salaries as
additional compensation, should the termination of the employment contract at stake be
due to overdue payables. In the case at hand, the Chamber confirmed that the contract
termination did not take place due to said reason – i.e. by the Claimant due to overdue
payables.
43. Consequently, on account of all the above-mentioned considerations and the specificities
of the case at hand, the Chamber decided that the Claimant is – in principle – entitled to a
total compensation of KZT 85,258,141.
44. However, in accordance with the general legal principle of ne iudex eat ultra petita partium,
the Chamber limited the abovementioned compensation to the amount requested by the
Claimant – namely KZT 66,112,606.45.
45. Therefore, the Chamber decided that the club must pay the amount of KZT 66,112,606.45
to the player, which was to be considered a reasonable and justified amount of
compensation for breach of contract in the present matter.
46. 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 December 2023 until the date of effective
payment.
iii. Compliance with monetary decisions
47. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24 par.
1 and 2 of the Regulations, which stipulate that, with his 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.
48. In this regard, the Chamber 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
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REF. FPSD-13848
maximum duration of the registration ban shall be of up to three entire and consecutive
registration periods.
49. Therefore, bearing in mind the above, the Chamber 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.
50. 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.
51. The Chamber 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
52. 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.
53. 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.
54. Lastly, the Chamber concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
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REF. FPSD-13848
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Pavel Zabelin, is partially accepted.
2.
The Respondent, FC Tobol, must pay to the Claimant KZT 66,112,606.45 as an outstanding
amount plus interest of 5% p.a. payable as from 12 December 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.
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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