F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2019-2020) – fifa.com – atto non ufficiale – Decision 19 May 2020

Decision of the Dispute Resolution Chamber (DRC) judge

passed on 19 May 2020,

by Alexandra Gómez Bruinewoud, (Uruguay / the Netherlands), DRC judge,

on the claim presented by the player,

Aziz Sydykov, Kyrgyz Republic

represented by Mr Mikhail Prokopets and Mr Sergey Lysenko

as Claimant

and the club,

Sanat Naft Abadan FC, IR Iran

as Respondent

regarding an employment-related dispute

arisen between the parties

I. Facts of the case

1. On 1 February 2019, the Kyrgyz player Aziz Sydykov (hereinafter: the Claimant or the player) and the Iranian club Sanat Naft Abadan FC (hereinafter: the Respondent or the club) signed an employment contract (hereinafter: the contract) valid as from the date of signature until “the end of the official season as described on FIFA TMS”.

2. According to the information provided in the Transfer Matching System (TMS), the end of the corresponding season 2018-2019 was on 31 May 2019.

3. In accordance with the contract, the Claimant was entitled to a “contract fee” of USD 95,000 “net for half season” to be paid in accordance with the following instalments :

i. 30% of the contract fee to be paid “after signing” (hereinafter : the first instalment) ;

ii. 35% of the contract fee to be paid “after eighth match.(30 march)” (hereinafter: the second instalment);

iii. 35% of the contract fee to be paid “by end of season.(31 may)” (hereinafter: the third instalment).

4. By correspondence dated 30 November 2019 and 16 December 2019, the Claimant put the Respondent in default of payment USD 42,000 corresponding to the outstanding remuneration based on his employment agreement, setting a time limit of 10 days and 14 days respectively in order to remedy, however to no avail.

5. On 16 January 2020 the Claimant lodged a claim in front of FIFA, asking for the payment of overdue payables, in the amount of USD 42,000 corresponding to :

i. part of the second instalment in the amount of USD 8,750;

ii. the entire third instalment in the amount of USD 33,250.

6. In his argumentation, the Claimant stated that he was entitled to received “USD 95,000 (ninety-five thousand) net for the whole contract in the following instalments:

i. 30% of the total amount (i.e. USD 28.,500) had to be paid “after the signing” (“Instalment 1”);

ii. 35% of the total amount (i.e. 33,250) had to be paid after the eighth match (30 March 2019) (“Instalment 2”);

iii. 35% of the total amount (i.e. 33,250) had to be paid after the eighth match (31 May 2019) (“Instalment 3”).”

7. The Claimant further argued that the Respondent did not fulfil his financial obligations towards him since he received from the Respondent only USD 53,000 out of USD 95,000 on the basis of the following payments:

i. USD 28,000 on 10 March 2019;

ii. USD 25,000 on 20 May 2019.

8. The Claimant also raised that the payments made by the club covered the first instalment and part of the second instalment but that said payment were late. Thus, the Claimant requested an interest rate of 5% p.a. on the payments that were delayed and on the overdue amounts as follows:

i. 5% p.a. on the amount of USD 28,500 from 2 February 2019 to 10 March 2019, which equals to USD 144,45;

ii. 5% p.a. on the amount of USD 500 from 2 February 2019 until 20 May 2019, which equals to USD 4,86;

iii. 5% p.a. on the amount of USD 33,250 from 31 March 2019 until 20 May 2019, which equals to USD 491,92;

iv. 5% p.a. on the overdue amount of USD 8,750 from 31 March 2019 until the effective date of payment;

v. 5% p.a. on the overdue amount of USD 33,250 as from 1 June 2019 until the effective date of payment.

9. In spite of having been invited to do so, the Respondent has not replied to the claim.

II. Considerations of the DRC judge

1. First of all, the DRC judge analysed whether she was competent to deal with the matter at hand. In this respect, she took note that the present matter was submitted to FIFA on 16 January 2020. Consequently, taking into account the wording of art. 21 of the 2019 Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: Procedural Rules) the aforementioned edition is applicable to the matter at hand.

2. Subsequently, the DRC judge referred to art. 3 par. 1 and 2 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 and 2 in conjunction with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition March 2020) she is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a Kyrgyz player and an Iranian club.

3. Furthermore, the DRC 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, and considering that the present claim was lodged on 16 January 2020, the January 2020 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

4. Her competence and the applicable regulations having been established, the DRC judge entered into the substance of the matter. In this respect, the DRC judge started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. However, the DRC 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. In particular, the DRC judge recalled that, in accordance with art. 6 par. 3 of Annex 3 of the Regulations, FIFA may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in the TMS.

5. Having said this, the DRC judge acknowledged that the Claimant and the Respondent signed an employment contract valid as from 2 February 2019 until “the end of the official season as described on FIFA TMS”.

6. In this context, the DRC judge took note that i) the contract did not make any explicit reference as to “the end of” which season it would expire and ii) that the player was entitled to receive a “contract fee” only for a “half season”.

7. In addition, the DRC judge remarked that according to the information entered in the TMS by the Islamic Republic of Iran Football Federation (IRIFF), the Iranian football season 2018-2019 started on 6 July 2018 and ended on 31 May 2019.

8. In view of the above, bearing in mind that the contract had been concluded in February 2019 for half a season, the DRC judge concluded that the contract came to a natural end on 31 May 2019.

9. The DRC Judge then acknowledged that the Claimant lodged a claim against the Respondent in front of FIFA, maintaining that the latter has overdue payables towards him in the total amount of USD 42,000, corresponding to i) part of the second instalment in the amount of USD 8,750 and ii) the entire third instalment in the amount of USD 33,250.

10. In this context, the DRC judge took particular note of the fact that, on 30 November 2019 and 16 December 2019, the Claimant put the Respondent in default of payment of the aforementioned amounts, setting twice a time limit of at least 10 days in order for the Respondent to remedy the default.

11. Consequently, the DRC judge concluded that the Claimant had duly proceeded in accordance with art. 12bis par. 3 of the Regulations, which stipulates that the creditor (player or club) must have put the debtor club in default in writing and have granted a deadline of at least ten days for the debtor club to comply with its financial obligation(s).

12. Subsequently, the DRC judge took into account that the Respondent, for its part, failed to present its response to the claim of the Claimant, in spite of having been invited to do so. In this way, the DRC judge considered that the Respondent renounced its right to defence and thus accepted the allegations of the Claimant.

13. Furthermore, as a consequence of the aforementioned consideration, the DRC judge concurred that in accordance with art. 9 par. 3 of the Procedural Rules he shall take a decision upon the basis of the documents already on file, in other words, upon the statements and documents presented by the Claimant.

14. In this respect, the DRC judge acknowledged that, in accordance with the contract provided by the Claimant, the Respondent was obliged to pay to the Claimant a total remuneration of USD 95,000 net in three instalments of i) USD 28,500 upon signature of the contract, ii) USD 32,250 on 30 March, and iii) USD 32,250 on 31 May.

15. Bearing in mind her conclusions above (cf. number II./6.), the DRC Judge had no other option than to consider that the second and third instalment were respectively due on 30 March 2019 and 31 May 2019.

16. In continuation, the DRC Judge remarked from the Claimant’s allegations that the Respondent fulfilled only part of its financial obligations towards him by paying late the first instalment and part of the second instalment for a total amount of USD 53,000.

17. Taking into account the documentation presented by the Claimant in support of his petition, the DRC judge concluded that the Claimant had substantiated his claim pertaining to overdue payables with sufficient documentary evidence.

18. On account of the aforementioned considerations, the DRC judge established that the Respondent failed to remit the Claimant’s remuneration in the total amount of USD 42,000 corresponding to the remaining part of the second instalment payable on 30 March 2019 and the entire third instalment payable on 31 May 2019.

19. In addition, the DRC judge established that the Respondent had delayed due payments for more than 30 days without a prima facie contractual basis.

20. Consequently, the DRC judge decided that, in accordance with the general legal principle of pacta sunt servanda, the Respondent is liable to pay to the Claimant overdue payables in the amount of USD 42,000.

21. In addition, taking into account the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber, the DRC judge decided that the Respondent must pay to the Claimant interest of 5% p.a. on each of the relevant payment(s) as of the day following the day on which the relevant payment(s) fell due, until the date of effective payment.

22. In continuation, taking into account the consideration number II./17. above, the DRC judge recalled that according to art.12bis par. 2 of the Regulations any club found to have delayed a due payment for more than 30 days without a prima facie contractual basis may be sanctioned in accordance with art. 12bis par. 4 of the Regulations.

23. The DRC judge established that in virtue of art. 12bis par. 4 of the Regulations he has competence to impose sanctions on the Respondent. In this context, the DRC judge highlighted that, on 7 August 2019, the Respondent had already been found to have delayed a due payment for more than 30 days without a prima facie contractual basis, as a result of which a warning had been imposed on the Respondent by the DRC judge (cf. Ref. nr. 19-01089/tle).

24. Moreover, the DRC judge referred to art. 12bis par. 6 of the Regulations, which establishes that a repeated offence will be considered as an aggravating circumstance and lead to a more severe penalty.

25. Bearing in mind the above, the DRC judge decided to impose a reprimand on the Respondent in accordance with art. 12bis par. 4 lit. b) of the Regulations.

26. Furthermore, taking into account the consideration under number II./3. above, the DRC judge referred to par. 1 and 2 of art. 24bis 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.

27. In this regard, the DRC judge pointed out 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 and for the maximum duration of three entire and consecutive registration periods.

28. Therefore, bearing in mind the above, the DRC judge decided that, in the event that the Respondent does not pay the amounts due to the Claimant within 45 days as from the moment in which the Claimant, following the notification of the present decision, communicates the relevant bank details to the Respondent, a ban from registering any new players, either nationally or internationally, for the maximum duration of three entire and consecutive registration periods shall become effective on the Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.

29. Finally, the DRC 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. 24bis par. 3 of the Regulations.

III. Decision of the DRC judge

1. The claim of the Claimant, Aziz Sydykov, is partially accepted.

2. The Respondent, Sanat Naft Abadan FC, has to pay the Claimant USD 42,000, plus interest as follows :

i. 5% interest p.a. on the amount of USD 8,750 as from 31 March 2019 until the date of effective payment;

ii. 5% interest p.a. on the amount of USD 33,250 as from 1 June 2019 until the date of effective payment.

3. Furthermore, the Respondent has to pay the Claimant interest on late payment as follows:

- 5% interest p.a. on USD 28,000 as of 2 February 2019 until 10 March 2019;

- 5% interest p.a. on USD 500 as of 2 February 2019 until 20 May 2019;

- 5% interest p.a. on USD 24,500 as of 31 March 2019 until 20 May 2019.

4. A reprimand is imposed on the Respondent.

5. The Claimant is directed to inform the Respondent, immediately and directly, preferably to the e-mail address as indicated on the cover letter of the present decision, of the relevant bank account to which the Respondent must pay the amounts plus interest mentioned under point 2. And 3. above.

6. The Respondent shall provide evidence of payment of the due amounts plus interest in accordance with point 2. and 3. above to FIFA to the e-mail address psdfifa@fifa.org, duly translated into one of the official FIFA languages (English, French, German, Spanish).

7. In the event that the amounts plus interest due in accordance with point 2. and 3. above is not paid by the Respondent within 45 days as from the notification by the Claimant of the relevant bank details to the Respondent, the Respondent shall be banned from registering any new players, either nationally or internationally, up until the due amounts are paid and for the maximum duration of three entire and consecutive registration periods (cf. art. 24bis of the Regulations on the Status and Transfer of Players).

8. The ban mentioned in point 7. above will be lifted immediately and prior to its complete serving, once the due amounts are paid.

9. In the event that the aforementioned sums plus interest are still not paid by the end of the ban of three entire and consecutive registration periods, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.

Note related to the publication:

The FIFA administration may publish decisions issued by the Players’ Status Committee or the Dispute Resolution Chamber-. Where such decisions contain confidential information, 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 20 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber).

Note relating to the motivated decision (legal remedy):

According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives).

The full address and contact numbers of the CAS are the following:

Court of Arbitration for Sport (CAS)

Avenue de Beaumont 2

CH-1012 Lausanne

Switzerland

Tel: +41 21 613 50 00

Fax: +41 21 613 50 01

e-mail: info@tas-cas.org

For the DRC judge:

Emilio García Silvero

Chief Legal & Compliance Officer