Labour Disputes
Texto da decisão
REF FPSD-7364
Decision of the
Dispute Resolution Chamber
passed on 22 November 2022
regarding an employment-related dispute concerning the player Allef De
Andrade Rodrigues
BY:
Jon Newman (USA)
CLAIMANT:
Allef de Andrade Rodrigues, Brazil
Represented by Eduardo Siqueira Brocchi
RESPONDENT:
Atyrau, Kazakhstan
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I. Facts of the case
1.
On 22 July 2021, the Brazilian player Allef De Andrade Rodrigues (hereinafter: the
Claimant) and the Kazakh club Atyrau (hereinafter: the Respondent) concluded an
employment contract (hereinafter: the Contract) valid until 1 November 2022.
2.
Clause 2.5 of the Contract reads inter alia as follows:
“Employer is responsible:
(…)
2.5.16. At the expenses of the Employer, to provide prophylactically, compulsory and
beforetime medical examinations of the Employee and In case of necessity to provide medical
treatment by qualified experts during the time of implementation of labor obligations;”
3.
Clause 3 of the Contract reads inter alia as follows:
“3.1. The employer sets the Employee a monthly basic salary in the amount of 2 000 000 tenge.
3.2. Wages are paid by non-cash payment not later than the first decade of the next month.
3.3. In the payment of wages, the Employer shall, in writing or in electronic form to notify the
Employee about the parts of the wages due to him for the corresponding period, the size and
bases of withheld, as well as the total amount payable. ·
3.4. All payments due lo the Employee and reflected in the text of this employment contract
are indicated without taking into account withholding (gross) taxes and other mandatory
payments provided for by the laws of the Republic of Kazakhstan.”
4.
Clause 9 of the Contract reads inter alia as follows:
“9.1. All arising in the process of execution of this employment agreement disputes will be
settled by the Parties through negotiations.
9.2. If the dispute between the Parties is resolved in the negotiations, it shall be resolved in
Conciliation Commission of the Employer in accordance with the Code.
9.3. If the dispute between the Parties is resolved in Conciliation Commission of the Employer,
tie shall be pre-trial settlement in the legal bodies of KFF in the manner stipulated in regulatory
documents of KFF.
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9.4. If the dispute between the Parties is not settled in accordance with the procedure provided
for in the regulatory documents of the KFF, it is subject to consideration in accordance with the
Code.”
5.
On 11 August 2022, the Claimant sent a default notice to the Respondent requesting the
amount of KZT 4,815,157.37 granting a deadline of 15 days to comply, to no avail.
6.
On 27 August 2022, the Claimant terminated the Contract adducing just cause.
7.
The Claimant stated that he remains unemployed.
II. Proceedings before FIFA
8.
On 6 September 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
9.
According to the Claimant, during the months of June to August 2022, the Respondent
only paid partially his salaries, owing him the amount of KZT 4,815,157.37.
10. The Claimant further states that after being put in default, the Respondent failed to pay
the amounts requested and therefore he terminated the Contract with just cause.
11. The Claimant sustains that the Respondent shall reimburse him the medical costs
incurred based on art. 2.5.16 of the Contract.
12. The Claimant states that the Respondent shall pay the Claimant the following:
-
overdue payables until 26 August 2022 in the amount of KZT 4,815,157.37, plus
interests of 5% p.a. as from the due date of each payment;
-
a compensation equal to the residual value of the contract that was prematurely
terminated in the amount of KZT 5,952,000.00, plus interests of 5% p.a. as from 27
August 2022;
-
an additional compensation in the amount of KZT 6,000,000, plus interests of 5%
p.a. as from 27 August 2022;
-
reimbursement of the hospital costs in the amount of KZT 5,687,751.33, plus
interests of 5% p.a. as from 10 June 2022.
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13. The Claimant filed the following requests for relief
the DRC to accept this claim and order the Respondent Atyrau Regional Football Team
(Kazakhstan) to pay to the Claimant the amount of KZT 22,454,908.70, plus interests of
5% p.a. as from the due date of each payment, as follows:
(i) overdue payables until 26 August 2022 in the amount of KZT 4,815,157.37 plus
interests of 5% p.a. as from the due date of each payment;
(ii) a compensation equal to the residual value of the contract that was prematurely
terminated in the amount of KZT 5,952,000.00, plus interests of 5% p.a. as from 27
August 2022;
(iii) an additional compensation in the amount of KZT 6,000,000.00 plus interests of 5%
p.a. as from 27 August 2022;
(iv) reimbursement of the hospital costs in the amount of KZT 5.687.751,33, plus interests
of 5% p.a. as from 10 June 2022.
b. Position of the Respondent
14. According to the Respondent, the Claimant “intentionally misrepresented the facts and
circumstances in its complaint in order to unlawfully and unreasonably portray the Player as
a victim.”
15. The Respondent does not recognize the jurisdiction of the FIFA DRC in this case.
16. The Respondent states that art. 9 of the Contract “expressly provides that disputes between
the Parties can be resolved sequentially in the following instances:
Conciliation Commission of the Club;
KFF Dispute Resolution Chamber
Court of Arbitration for Sport in Lausanne.”
17. The Respondent filed the following request:
FC Atyrau is respectfully asking FIFA DRC to refuse the consideration of this dispute on the basis
of the present response due to the fact that it does not fall under the jurisdiction of FIFA DRC.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
18. 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 6 September 2022 and submitted for decision
on 22 November 2022. 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.
19. 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 in principle competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a Brazilian player
and a Kazakh club.
20. In this respect, the Single Judge referred to clause 9 of the employment contract,
according to which:
“9.1. All arising in the process of execution of this employment agreement disputes will be
settled by the Parties through negotiations.
9.2. If the dispute between the Parties is resolved in the negotiations, it shall be resolved in
Conciliation Commission of the Employer in accordance with the Code.
9.3. If the dispute between the Parties is resolved in Conciliation Commission of the Employer,
tie shall be pre-trial settlement in the legal bodies of KFF in the manner stipulated in regulatory
documents of KFF.
9.4. If the dispute between the Parties is not settled in accordance with the procedure provided
for in the regulatory documents of the KFF, it is subject to consideration in accordance with the
Code.”
21. The Single Judge, after analysing the wording of the jurisdiction clause, concluded that
such clause did not clearly and exclusively establish the competence of the NDRC of
Kazakhstan, in accordance with art. 22 par. 1 lit. b) of the aforementioned Regulations. In
proof of the above, the Single Judge underlined that even the Respondent had failed to
nominate a single and exclusive competent deciding body.
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22. As a consequence, the Single Judge was of the opinion that the first pre-requisite for
establishing the competence of an NDRC was not met, and therefore, without the need
to enter the analysis of any further requirement, he established that the Respondent’s
objection to the competence of FIFA to deal with the present matter has to be rejected
and that the Dispute Resolution Chamber is competent, on the basis of art. 22 par. 1 lit.
b) of the Regulations, to consider the present matter as to the substance.
23. 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 6 September 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
24. 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.
c. Merits of the dispute
25. 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
26. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the claim remains uncontested by the Respondent
as to the substance.
27. In this context, the Single Judge acknowledged that his 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.
28. The Single Judge 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
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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).
29. The Single Judge noted that the Claimant claims not having received his remuneration
corresponding to the months of May to August 2022. Furthermore, the Single Judge noted
that the Claimant has provided written evidence of having put the Respondent in default
on 11 August 2022, i.e. at least 15 days before unilaterally terminating the contract on 27
August 2022.
30. The Single Judge 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 has failed to present any evidence in
this regard.
31. Thus, the Single Judge concluded that the Claimant had a just cause to unilaterally
terminate the contract, based on art. 14bis of the Regulations.
ii. Consequences
32. The Single Judge observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the Claimant, are equivalent almost to four
salaries under the contract KZT 2,000,000 * 4 (May to August 2022) = KZT 8,000,000, since
the Claimant acknowledged a payment of KZT 1,232,842.63
33. 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 amounts which were outstanding under the contract at the moment of the
termination, i.e. KZT 6,767,157.37 (i.e. KZT 8,000,000 minus times KZT 1,232,842.63).
34. 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 the respective
due dates until the date of effective payment.
35. Having stated the above, the Single Judge 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 Single
Judge 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
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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 Single Judge 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 Single Judge
established that no such compensation clause was included in the employment contract
at the basis of the matter at stake.
37. As a consequence, the Single Judge 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 Single Judge recalled that said provision
provides for a non-exhaustive enumeration of criteria to be taken into consideration
when calculating the amount of compensation payable.
38. Bearing in mind the foregoing as well as the claim of the player, the Single Judge
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 Single Judge concluded that the amount of KZT 4,000,000 (i.e. the salaries of
September and October 2022) serves as the basis for the determination of the amount of
compensation for breach of contract.
39. In continuation, the Single Judge 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.
40. The player did not find new employment. Therefore, the Single Judge concluded that
neither mitigation nor additional compensation shall be applied.
41. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Single Judge decided that the club must pay the
amount of KZT 4,000,000 to the player, which was to be considered a reasonable and
justified amount of compensation for breach of contract in the present matter.
42. Lastly, the Single Judge turned to the claim for medical expenses. In this respect, the Single
Judge noted that according to the Clause 2.5 of the Contract the Respondent was bound
to provide medical treatment to the Claimant. Thus, since the Claimant had provided
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evidence of the medical expenses incurred, the Single Judge decided to award the amount
of KZT 5,687,751.33.
43. Lastly, taking into consideration the player’s request as well as the constant practice of
the DRC in this regard, the Single Judge decided to award the player interest on said
compensation and the medical expenses at the rate of 5% p.a. as of 6 September 2022
until the date of effective payment.
iii. Compliance with monetary decisions
44. 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.
45. 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.
46. 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.
47. 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.
48. 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
49. 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 Chamber decided that no procedural costs were
to be imposed on the parties.
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50. 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.
51. Lastly, the Single Judge 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, Allef De Andrade Rodrigues, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, Atyrau, has to pay to the Claimant, the following amount(s):
-
KZT 6,767,157.37 as outstanding remuneration plus 5% interest p.a. as follows:
On KZT 767,157.37 from 11 June 2022 until the date of effective payment;
On KZT 2,000,000.00 from 11 July 2022 until the date of effective payment;
On KZT 2,000,000.00 from 11 August 2022 until the date of effective payment;
On KZT 2,000,000.00 from 27 August 2022 until the date of effective payment;
-
KZT 5,687,751.33 as reimbursement of expenses plus 5% interest p.a. as from 6
September 2022 until the date of effective payment.
-
KZT 4,000,000.00 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 6 September 2022 until the date of effective payment.
4.
Any further claims of the Claimant are rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account
indicated in the enclosed Bank Account Registration Form.
6.
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.
7.
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.
8.
This decision is rendered without costs.
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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).
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