Labour Disputes
Texto da decisão
REF FPSD-6048
Decision of the
Dispute Resolution Chamber
passed on 31 August 2022
regarding an employment-related dispute concerning the player Stefan Zivkovic
BY:
Dana Mohamed Al-Noaimi (Qatar)
CLAIMANT:
Stefan Zivkovic, Serbia
RESPONDENT:
Club Turan, Kazakhstan
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REF FPSD-6048
I.
Facts of the case
1.
On 6 February 2021, the Serbian player, Stefan Zivkovic (hereinafter: the Claimant), and the
Kazakhstani club, Turan (hereinafter: the Respondent) signed an employment contract (hereinafter:
first contract), valid from 6 February 2021 until 30 November 2021.
2.
In accordance with article 3 of the first contract, the Claimant was entitled to a monthly salary of
KZT 3 500 000 net.
3.
On 1 March 2021, the Claimant and the Respondent signed a second employment contract
(hereinafter: second contract), valid from 1 March until 30 November 2021.
4.
In accordance with article 3 of the second contract, the Claimant was entitled to a monthly salary
of KZT 2 000 000 net.
5.
According to the Claimant, after he signed the first contract, he was requested by the Respondent
to sign the second contract due to the “name change” of the Respondent. Upon signature of the
second contract, the Claimant noted that his salary was reduced, however the Respondent
allegedly explained to him “that this reduction is necessary for reporting purposes to the founders and
that this will not affect his salary under the first contract.”
6.
The Claimant mentioned that throughout the season he received his salary as per the second
contract and that upon his enquiry regarding his remuneration due as per the first contract, the
Respondent allegedly indicated that “all the difference would be received at the end of the season, but
this promise was not fulfilled.”
7.
The Claimant furthermore requested the registration status of his employment contract from the
Professional Football League of Kazakhstan (PFLK) and in a letter dated 13 May 2022, the following
was confirmed by the PFLK:
"In the KFF Connect System, the Respondent uploaded an employment contract No. 27 dated 06 February
2021, concluded between the Respondent and the Claimant with a validity period from 06 February to
30 November 2021 and a monthly salary of 3 500 000 Tenge (hereinafter referred to as Official Contract).
With regard to the seal of registration on the Contract 2, the PFLK clarified that due to the large volume
of documentation during the registration, the fact of reconciliation of contracts uploaded to the KFF
Connect System and submitted by the Respondent on paper was not performed. In this connection, an
officially registered contract in the PFLK is an Official Contract.”
8.
On 11 April 2022 the Claimant sent a notice of default to the Respondent requesting payment of
the amount of KZT 14,590,185 net corresponding to the difference in the monthly salaries between
the first and second contract, granting it with a deadline until 22 April 2022 to comply with the
payment thereof, however to no avail.
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REF FPSD-6048
II. Proceedings before FIFA
9.
On 13 May 2022, the Claimant filed the claim at hand before FIFA.
a. Position of the Claimant
10. According to the Claimant, the first contract was never terminated, the Respondent merely failed
to fulfil its obligations under the said contract.
11. The requests for relief of the Claimant, were that the Respondent pay him the amount of
KZT 14 590 185 net plus 5% interest p.a. as from 1 December 2021 until the date of effective
payment, which corresponds to the difference in monthly salary under the terms of the first
contract and the second contract, based on the following calculations:
1) the difference in salary for the month of March 2021 - KZT 1 500 000
2) the difference in salary for the month of April 2021 - KZT 1 500 000
3) the difference in salary for May 2021 - KZT 1 500 000
4) the difference in salary for June 2021 - KZT 1 500 000
5) the difference in salary for the month of July 2021 - KZT 1 500 000
6) the difference in salary for the month of August 2021 - KZT 1 500 000
7) the difference in salary for the month of September 2021 - KZT 1 500 000
8) the difference in salary for the month of October 2021 - KZT 1 500 000
9) the difference in salary for the month of November 2021 - KZT 1 500 000
10) the difference in salary for unused work leave – KZT 1 090 185
“The compensation for unused work leave under Contract 2 for the period from 01 March to 30
November 2021, based on a salary of 2 000 000 Tenge is 1 443 850 Tenge;
compensation for unused work leave under Contract 1 for the period from 06 February to 30 November
2021, based on a salary of 3 500 000 Tenge is 2 534 035 Tenge;
The total difference is: 2 534 035 Tenge – 1 443 850 Tenge = 1 090 185 Tenge”
b. Position of the Respondent
12. In its reply to the claim, the Respondent indicated that upon the re-registration of the Respondent
i.e., the name change, the parties mutually agreed to sign a new contract with a reduced salary
and throughout the season the Claimant “never objected to the amount of wages.”
13. The Respondent mentioned that on 25 May 2021, during the registration period, the PFLK
registered a new re-signed contract dated 1 March 2021 with a salary of KZT 2,000,000 - “as
indicated in Letter No. 293 dated 13.05.2022, attached by the Plaintiff, the PFLK declares that the official
contract is an officially registered and stamped contract in the PFLK. In our case, this is contract 2 from
01.03.2022 with a salary of 2,000,000 tenge.”
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REF FPSD-6048
14. Moreover, the Respondent indicated that at the end of the 2021 season, it issued a guarantee
letter to the Claimant confirming that it undertakes to pay the salary arrears to the Claimant in the
amount of KZT 7,018,778 until 28 February 2022, further confirming that he has no financial claims
against the Respondent.
15. Accordingly, the Respondent in conclusion requested to reject the claim “with demands for
additional payment to Stefan Zivkovic for the absence of the subject of dispute, since the validity of the
last document always terminates the validity of previous documents.”
c.
Additional Comments Claimant
16. The Claimant provided the following comments regarding the guarantee letter submitted by the
Respondent:
“On the merits of issue, I inform that the amount indicated in the FC Turan's guarantee letter has been
received by me. However, I additionally inform that this guarantee letter was issued for obligations
stipulated by Contract 2 (with a monthly salary of KZT 2,000,000), while my claim relates to obligations
stipulated by Contract 1 (with a monthly salary of KZT 3,500,000).
In addition, I draw attention to the insignificance of the provisions of the guarantee letter regarding the
absence of my financial claims to the club management, since:
1)as of the date I received the guarantee letter, FC Turan owed me in the amount of KZT 7,018,778;
2)the absence of claims applies only to the FC Turan's management, i.e. to individuals - employees of the
club, while FC Turan, which is a legal entity and my employer, has debts to me;
3)the guarantee letter refers to FC Turan's obligations only under Contract 2.”
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
17. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to as
Single Judge) analysed whether she was competent to deal with the case at hand. In this respect,
she took note that the present matter was presented to FIFA on 13 May 2022 and submitted for
decision on 31 August 2022. Taking into account the wording of art. 34 of the June 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.
18. 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 (July 2022 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 Serbian player and a Kazakhstani club.
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REF FPSD-6048
19. 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 (July 2022 edition), and considering that
the present claim was lodged on 13 May 2022, the March 2022 edition of said regulations
(hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
20. 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
21. Her 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 she will refer only to the facts,
arguments and documentary evidence, which she considered pertinent for the assessment of the
matter at hand.
i. Main legal discussion and considerations
22. The foregoing having been established; the Single Judge moved to the substance of the matter and
took note of the fact that the parties first concluded an employment contract on 6 February 2021,
whereafter they signed a second employment contract on 1 March 2021.
23. The Single Judge noted that the Claimant is requesting outstanding remuneration based on the
difference in value between the first and the second contract concluded between the parties and
that the Respondent on its account argued that the parties mutually agreed to sign the second
contract with a reduced salary, furthermore, arguing that the validity of the last document
invalidates that of the previous.
24. In this context, the Single Judge acknowledged that her task was to determine the applicability of
the first contract and the second contract to the present dispute.
25. The Single Judge observed that both parties signed the respective contracts and therefore it is
uncontested that the second contract was validly executed after the first contract, moreover the
Single Judge referred to clause 11.2 of the second contract which stipulates that it’s the only
employment agreement governing the employment relationship between the parties.
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26. The Single Judge further analysed the content of the first contract and the second contract and
concluded that both contracts relate to the same subject matter, it accordingly therefore seems
that it must have been the parties’ intention to only consider the second contract as the valid and
binding document governing their contractual relationship.
27. Taking the above into account, the Single Judge concluded that the second contract superseded
the first contract and as such, that only the second contract signed on 1 March 2021 will be taken
into account in the assessment of the matter at hand, further confirming that the Respondent’s
financial obligations arose from the terms and conditions agreed to in the second contract.
28. In continuation, the Single Judge remarked that she had to take into consideration whether the
Respondent had been in breach of the second contract.
29. In this context, the Single Judge referred to the letter of guarantee which the Respondent issued
to the Claimant at the end of the 2021 season, which mentioned that it would pay to the Claimant
the total amount of KZT 7,018,778 by 28 February 2022, which amount pertains to his outstanding
remuneration as per the second contract. The Single Judge therefore concluded that as the
Claimant confirmed receipt of the amount indicated in the letter of guarantee, it is uncontested
that the Respondent fulfilled its contractual obligations as per the second contract.
30. In view of the above, the Single Judge decided to reject the Claimant’s claim as all his outstanding
dues were settled by the Respondent.
d. Costs
31. 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, she decided that no procedural costs were to be imposed on the Parties.
32. 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.
33. Lastly, the Single Judge concluded her deliberations by rejecting any other requests for relief made
by any of the Parties.
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REF FPSD-6048
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Stefan Zivkovic, is rejected.
2. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF FPSD-6048
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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