F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2020-2021) – fifa.com – atto non ufficiale – Decision 14 January 2021

Decision of the

Dispute Resolution Chamber

Passed on 14 January 2021,

regarding an employment-related dispute concerning the player Ramazan Orazov

COMPOSITION:

Geoff Thompson (England), Chairman Michelle Colucci (Italy), member Bin Mohamed Muzammil (Singapore), member

CLAIMANT / COUNTER-RESPONDENT:

FC KAIRAT, Kazakhstan

Represented by Mr. Paolo Lombardi and Mr. Ian Laing

RESPONDENT 1 / COUNTER-CLAIMANT:

RAMAZAN ORAZOV, Kazakhstan

Represented by Ms. Anastasia Soldatova

RESPONDENT 2:

FC DAUGAVPILS, Latvia

Represented by SILA Lawyers

I. FACTS OF THE CASE

1. On 29 February 2016, the Kazakh club, FC Kairat (hereinafter: Kairat or the club) and the Kazakh player, Ramazan Orazov (hereinafter: the player) concluded an employment contract, which was subject of 3 different renewals, the last of which occurred on 1 April 2019 according to which the parties renewed their contractual relationship until 28 February 2021 (hereinafter: the contract).

2. Clause 2.2.7 of the contract states as follows: “2.2 Employee shall be obliged to: (…) during periods between football seasons and during periods when football matches are not held in accordance with the calendar of competitions, on the basis of the Employer’s Act, conduct individual training to keep the game form in strict accordance with the program of individual training”

3. Clause 2.2.11 of the contract provides, as one of the player’s obligations, the following: “[to] keep and maintain own health, a high physical (athletic) form and observe the rest and recovery regime, including when out of season, competition and training process (outside working hours)”.

4. Clause 2.6.14 of the contract states that “2.6. The employer shall have the right to establish an individual mode of work for the Employee to maintain the game form on the basis of the instructions of Head Coach in accordance with the sub-item 2.2.7. of this Employment agreement”.

5. Clause 3.1 of the contract provides the following: “The monthly salary under this Employment agreement of the Employee from 01 April 2019 until the expiry of this Employment agreement is equal to 837,500 (eight hundred thirty-seven thousand five hundred) tenge and consists of the basic salary and personal allowance, which do not include taxes and other mandatory payments to the budget of the Republic of Kazakhstan”.

6. Clause 3.2 of the contract provides the following: “The monthly salary for this Employee’s Employment agreement from January 01, 2020 until the expiration of this Employment agreement, if the Employee has played (fielded) more than 50% of the official matches of the Premier League team in the sports season, and also showed in official matches and in the training process, high skill and discipline, and did not allow violation of labor discipline, is 1 200 000 (one million two hundred thousand) tenge, and consists of basic salary and personal allowances, which do not include taxes and other mandatory payments to the budget”.

7. Clause 3.3 of the contract provides the following: “The monthly 3.3. The monthly salary for this Employee’s Employment agreement from January 01, 2021 until the expiration of this Employment agreement ,if the Employee has played (fielded) more than 50% of the official matches of the Premier League team in the sports season, and also showed in official matches and in the training process, high skill and discipline, and did not allow violation of labor discipline, is 1,600,000 (one million six hundred thousand) tenge, and consists of basic salary and personal allowances, which do not include taxes and other mandatory payments to the budget”.

8. Clause 3.6 of the contract states that: “Basic salary is a fixed part, which is 75% of the amount of labor remuneration, paid in proportion to the time worked by the Employee, and cannot be less than the minimum monthly salary established by the legislation of the Republic of Kazakhstan”.

9. Clause 3.7 of the contract provides that: “Personal allowance is a monthly supplement to the basic salary at a rate of up to 25% of the amount of labor remuneration, paid in order to stimulate the improvement of the quality of work and increase the responsibility of the Employees for the performance of their duties”.

10. Clause 3.8 of the contract states that: “The basic salary of the Employee, calculated in accordance with the internal documents of the Employer is: 1) 628 125 (six hundred twenty eight thousand one hundred twenty five) tenge - if the monthly wage of the Employee is 837,500 (eight hundred thirty seven thousand five hundred) tenge; 2) 900,000 (nine hundred thousand) tenge – in case if the monthly wage of the Employee is 1,200,000 (one million two hundred thousand) tenge; 3) 1 200 000 (one million two hundred thousand) tenge in case if the monthly wage of the Employee is 1 600 000 (one million six hundred thousand) tenge”.

11. Clause 3.9 states that: “The personal allowance is established for the Employee in the following amount: 1) 209,375 (two hundred nine thousand three hundred seventy-five) tenge - if the monthly wage of the Employee is 837,500 (eight hundred thirtyseven thousand five hundred) tenge; 2) 300,000 (three hundred thousand) tenge - if the monthly wage of the Employee is 1,200,000 (one million two hundred thousand) tenge; 3) 400,000 (four hundred thousand) tenge - if the monthly wage of the Employee is 1,600,000 (one million six hundred thousand) tenge”.

12. Clause 6.3 states that: ”In accordance with the Regulations of the KFF/FIFA on status and transfer of players, in case of a significant non-fulfillment / violation of requirements of the Employment agreement, Internal Regulations, internal normative documents of the Partnership and labor legislation of the Republic of Kazakhstan by Employee, the Employer can terminate this Employment agreement unilaterally without payment of compensation with the right to claim compensation for damage suffered by the Employer.

13. Furthermore, clause 6.4 of the contract provides the following: “In case of termination of the Agreement by the Employer as stated in the clause 6.3. of the Employment agreement, or in the event of early termination of the Employment agreement by the Employee in the absence of a violation of the Employment agreement and the legislation of the Republic of Kazakhstan by the Employer, the Employee is obliged to pay the Employer compensation in the amount of 3 000 000 (three million) euros”.

14. Equally, clause 6.5 of the contract provides that: “In case of interest from another football club in the Employee, the transfer amount (the buyout fee) must be at least 3 000 000 (three million) euros. The Employee will take all necessary measures to properly inform the interested club about the transfer amount provided for in this paragraph. Obligations provided for by this clause shall remain in force in the event of an early termination of the Employment agreement by the Employee in order to transfer to another club. In this case, when the Employee concludes an Employment agreement with another football club within 6 months after the early termination of the Employment agreement with the Employer, it is considered that the Employee intentionally terminated the Employment agreement”.

15. Clause 6.8 of the contract provides as follow: “In accordance with Regulations of the KFF, the FIFA on the Status and Transfers of players, in the event of early termination of this Employment agreement by the Employer in the absence of violation of the Employment agreement and legislation of the Republic of Kazakhstan by the Employee, the Employer sends a notice of termination 7 (seven) calendar days before the expected termination date and produces payment of compensation to the Employee for early termination in the amount of: 1 monthly salary in case the contract expires in 6 months, 2 salaries in the case of e whether the contract expires in 12 months, and so on. The Employer undertakes within 5 (five) calendar days from the date of termination of this Employment agreement to inform the Professional Football League of Kazakhstan in writing of the termination of this Employment agreement. Termination of this Employment agreement is issued by the Act of the Employer. A copy of the Employer’s act on termination of the Employment agreement is given to the Employee or sent to him by letter with a notification within three days”.

16. According to the information available in the Transfer Matching System (TMS), the seasons in Kazakhstan:

a. Ended on 31 October 2019 for the 2019 season;

B. Started on 1 March 2020 and ended 30 November 2020 for the 2020 season.

17. By means of a letter dated 16 January 2020, the club informed the player via a written notice that he would be training individually, as decided by the head coach, in application of clauses 2.2.7, 2.7.4 and 2.6.14 of the contract, in view of the fact that the player’s fitness and physical condition had allegedly dropped. The club explained that the player would be accompanied by a coach of the club and that the player was to start such training on 20 January 2020. The letter further states that the training would last until 6 March 2020. The player signed such letter and stated “I have received, but I don’t agree”.

18. On 19 January 2020, the player wrote to the club, and objected to the assigned training schedule on the grounds that such had no sporting reason and that it was being imposed as a disciplinary sanction. The player furthermore stated inter alia the following: “At the beginning of January 2020, in a personal conversation with The Club’s management, I was informed that the Club objects to the fact that the Club’s players could have Agency contracts, and therefore I had to terminate my Agency contract with Ultimate Sports agency. After my refusal to terminate the Agency contract, I was informed by means of the Club’s notification of 16 January 2020 (hereinafter – «the Notification») that the Club’s Head Coach had prepared an individual training plan under supervision of the Club’s Coach for me, for the period 20.01.2020 – 06.03.2020, training session of which would be held at 13A Magnitnaya street, where the Club’s Academy is located”.

19. On 20 January 2020, the club wrote to the player and indicated that the individual training plan was not a disciplinary penalty, but rather imposed by the Head Coach of the club and aimed at improving the player’s fitness.

20. On 23 January 2020, the player once again wrote to the club and reiterated his position, requesting the club to cancel his individual training schedule.

21. On 7 February 2020, the player put the club in default, continuing to oppose the individual training and requesting payment of part of his salary that was withheld, detailing that “on 6 February 2020, I received only 628,223 (six hundred and twenty-eight thousand two hundred and twenty-three) tenge from the Club. I also didn’t get any explanations from the Club about this. Thus, given that the Club withheld a part of my salary, as well as it has not yet canceled my individual training plan, failing to provide me with any explanation for these actions, it becomes obvious that the Club is putting pressure on me to force me to terminate my Agency contract, which undoubtedly violates my rights and legitimate interests, jeopardizing the successful continuation of my sports career”. The player granted the club a deadline until 10 February 2020 to “eliminate the violations”.

22. By means of its letter dated 12 February 2020, the club informed the player that he had not been selected by the head coach to receive the personal allowance of January 2020 and informed the player about the following:

“Based on the instructions of the Head Coach (in accordance with clauses 2.2.7.of [contract], the [club] has the right to establish an individual training regime for the Employee to maintain the game form.

Using its rights and fulfilling its duties, the [club] provides the [player] with work at the place of work performance stipulated by the LA (sub clauses 2.7.4. and clause 1.7. of [contract].

In turn, the [player] is obliged to fulfill labor duties in accordance with the [contract], acts of the [club] and comply with the requirements of the Internal Regulations and other internal regulatory documents of the [club], strictly adhere to the training process, observe labor discipline, the sports regime established by the [club], and fulfill the plans for preparing for sports competitions, including training regimen and follow all instructions of the Head coach and coaches of the [club]”.

23. On the same date, i.e. 12 February 2020, the player unilaterally terminated his contract in writing on the basis of the unpaid wages and the individual training plan he was forced to follow and requested the club to pay him compensation for the early termination of the contract.

24. On 12 February 2020, the player and the Latvian club, BFC Daugavpils (hereinafter: Daugavpils) concluded an employment contract, valid as from the date of its signature until 1 November 2020, whereby the player was entitled inter alia to a monthly salary of EUR 1,050.

25. By means of its letter dated 14 February 2020, the club replied to the termination letter of the player, denying having breached the contract of the player and informing the latter that his unilateral termination of the contract constituted a breached thereof and requested the player to “provide all amounts of compensation payments and provide the Club with the final calculation of amounts within 3 (three) calendar days”. The said letter further stated that: “Non-receiving of your written reply within the established term will be considered as refusal to early terminate the Contract upon the initiative of the [player]”.

26. On 12 March 2020, upon the player’s registration with Daugavpils, the club sent a correspondence to Daugavpils, whereby it requested a clarification from Daugavpils as to the registration of the player. The club furthermore informed Daugavpils that, in order for the player to lawfully terminate his contract with the club and sign another contract with a third club, the amount of EUR 3,000,000 should be paid, in accordance with the buy-out clause in the contract.

27. According to TMS, Daugavpils and the Russian club FC Chayka executed a transfer agreement on 24 August 2020, by means of which the player was transferred from the former to the latter free of payment on a definitive basis. Such transfer agreement contains a sell-on fee of 10% in favour of Daugavpils.

28. Subsequently, the player and FC Chayka executed an employment contract on 25 August 2020, valid as of the 1 September 2020 until 31 May 2022, according to which the player is entitled to a total fixed remuneration of Russian Rubles 1,050,000.

II. PROCEEDINGS BEFORE FIFA

29. On 30 June 2020, the club filed the claim at hand before FIFA against the player and Daugavpils (hereinafter jointly referred to as respondents). A brief summary of the position of the parties is detailed in continuation.

a. The claim of the club

30. The club requested the player and Daugavpils to be considered jointly and severally liable for the termination of the contract of the player and be ordered to pay compensation for breach of contract in the amount of EUR 3,000,000, plus 9.5% interest p.a. as from 12 February 2020 until the date of effective payment. As to the interest requested, the club stressed that said interest is “the applicable [in accordance to the] Law of the Republic of Kazakhstan”.

31. Moreover, the club requested sanctions to be imposed on the respondents, and that the respondents are ordered to bear “all costs relating to these proceedings”.

32. Alternatively, the club requested to be awarded “the highest possible amount that the Dispute Resolution Chamber will deem appropriate in accordance with the criteria established by Article 17 of the FIFA Regulations”. In this regard, the club stressed that the amount to be awarded should not be less than EUR 200,000, since such amount “corresponds to the approximate replacement costs, estimated by Mr Baimukhanov at EUR 200,000 (cf. Enclosures X and XI). Incidentally, such amount reflects the parameters provided for by the FIFA Circular Letter no. 1673 dated 28th May 2019, according to which UEFA category III clubs, such as Kairat, incur training costs of EUR 30,000 (thirty thousand euros) per year, i.e. in the case of the investment made in the Player a total of approximately EUR 200,000 (two hundred thousand euros). As a result, EUR 200,000 is the minimum amount that Kairat would have countenanced in the scope of a negotiation for the transfer of the Player”.

33. Furthermore, the club added that, according to article 17 par. 1 of the FIFA Regulations on the Status and Transfer of Players (RSTP), it shall be considered that the contractual breach fell within the protected period as an aggravating factor when deciding the amount of compensation to be paid.

34. In its claim, the club argued that the player terminated the contract without just cause. The club referred to the two reasons provided by the player in order to terminate the contract: the outstanding salaries and the individual trainings, and explained that, at the end of January 2020 the coach of the club ascertained the player’s poor fitness level and decided to designate an individual training plan for him to raise the level of the player and allow him to play an important role in the first team in the coming season.

35. Furthermore, the club stressed that the possibility for the club to designate an individual training plan for the Player was explicitly provided under clause 2.6.14 of the Employment Contract, which reads: “(2.6 Employer shall have the right to:) […] establish an individual mode of work for the Employee to maintain the game form on the basis of the instructions of Head Coach in accordance with the sub-item 2.2.7. of this Employment agreement”.

36. As to the unpaid wages, the club held that the withholding of the player’s personal allowance – due to the player not meeting the required standards of fitness and professionalism – was completely justified as the Head Coach exercised his legitimate right to do so based on the conduct of the player. In this regard, the club explained that the personal allowance is an extra bonus that is paid by Kairat to its players in addition to their salaries and that it is only a conditional payment, which incentivises Kairat’s players to maintain the required standards of professionalism; and that it is only paid to players based on the recommendation of the Head Coach, who has the right to withhold this payment from any player in the squad.

37. As to the amount of EUR 3,000,000 claimed by the club, the latter explained that the player and the club stipulated the amount of compensation that would be due in case of unilateral breach of the contract by the player at clause 6.4 of the contract and that, insofar there was no violation of the contract by the club, the liquidated damages of EUR 3,000,000 became due by the player to the club upon the player’s early termination of the contract on 12 February 2020.

38. Petitum of the club:

“a) CONFIRMING that the Dispute Resolution Chamber has jurisdiction to assess this dispute;

b) CONFIRMING that the First Respondent unilaterally terminated the Employment Contract without just cause within the protected period;

c) CONDEMNING the First Respondent to pay to the club compensation for the unilateral termination of the Employment Contract in the amount of €3,000,000 (three million euros), plus 9.5% per annum interest applied from 12th February 2020, or alternatively in the highest possible amount that the Dispute Resolution Chamber will deem appropriate in accordance with the criteria established by Article 17 of the FIFA Regulations and;

d) CONDEMNING the Second Respondent to be jointly and severally liable to pay the club the compensation due by the Player for the unilateral termination of the Employment Contract without just cause within the protected period;

e) IMPOSING sporting sanctions on the First Respondent pursuant to Article 17 par. 3 of the FIFA Regulations;

f) IMPOSING sporting sanctions on the Second Respondent pursuant to Article 17 par. 4 of the FIFA Regulations;

g) IMPOSING the appropriate measures on the intermediary involved, including REFERRING the matter to the member association responsible for the imposition of sanctions upon the intermediary;

h) CONDEMNING the First Respondent and Second Respondent to bear all costs relating to these proceedings”.

b. Position of the respondents

39. The respondents filed a joint defense and counterclaim against the club.

40. The respondents argued that contrarily to the arguments of the club, Kazakh Law shall not apply to the case at hand, only the RSTP and the DRC jurisprudence.

41. The respondents claimed that the player had just cause to terminate the contract on the grounds that the club violated his personality rights. The player argued that “among a player’s fundamental rights under an employment contract, is not only his right to a timely payment of his remuneration, but also his right to access training and to be given the possibility to compete with his fellow team mates in the team’s official matches. The respondents referred to the jurisprudence of the Court of Arbitration for Sport (CAS) in this respect, and submitted that “In the present case, concerning Kairat’s contention that it had assigned the Respondent to train alone due to “the decision taken by the Head Coach […] based solely on sporting reasons, which are related to the Player’s fitness,” the DRC should follow the same well-established test and principles as in CAS 2014/A/3642, CAS 2015/A/4286, CAS 2017/A/5162, CAS 2019/A/6171, 6175, and should apply them to the facts in the case at hand”.

42. The respondents further argued that the player was put to train with the reserve team on the grounds that the club was not satisfied with its new representatives, and stated that “Kairat did not refer to the Player’s fitness condition to justify its radical decision” when it took the decision to put him on a separate training schedule on 16 January 2020. The respondents further referred to the letters from the player dated 19, 23 January and 7 February as well the club’s letters of 20 January and 12 February, and underlined that Kairat did not mention at all the Player’s then fitness level and did not refute the Player’s position that Kairat was putting pressure on him to terminate the agency contract”. The player also referred to the fact that he was the only one put on a separate training schedule while the entire squad was on pre-season camp in Turkey.

43. The respondents furthermore argued that the head coach confirmed to him that he was put to train in separate at the request of club management and that “Furthermore, during the period in question, Kairat did not assign any other player of the first team to train alone. The entire team was on a pre-season camp in Antalya, Turkey”. The respondents concluded that “For these reasons, the Counter-Claimants are convinced that the assigning of the Player to an individual training was unwarranted and constituted a unilateral change of the terms of the Contract to the detriment of the Player, and was, as such, abusive”.

44. The respondents furthermore argued that the player was not being paid his full salary on account of the fact that the club unilaterally deducted amounts, failing to provide evidence why. The player underlined that his salary totals KZT 837,500 comprised of basic salary (KZT 628,125) and personal allowance (KZT 209,375), the latter which is not subject to any discretion of the club or the head coach under art. 3.1 and 3.9 of the contract. The player claimed he was paid his salary only for January 2020 and not the personal allowance. The player further claimed that in 4 years the club had never made such deduction.

45. The player went on to submit that a period of 46 days is rather a permanent situation and not a temporary one. He further argued that the training facility in Kazakhstan was not adequate as it comprised on an old synthetic pitch in snowy conditions and low temperatures. The player is of the position that if the structure was adequate the team would not have gone to Turkey for pre-season training.

46. In continuation, the player argued that clauses 2.6.14, 2.2.7 and 2.4.7 of the contract do not authorize the Head Coach to put the player in a separate training schedule as they refer to off-season periods.

47. Lastly, the player confirmed that while he had a fitness coach with him, he submitted he was not authorized to train with any other teams of the club.

48. The player referred to the claim of the club and argued that since Kazakh Law does not apply, the claim for interest of 9.5% has to be rejected, and further outlined that the termination of the contract took place outside the protected period. The player further argued that the compensation clause established under the contract is disproportionate.

49. Petitum of the respondents:

“1. Render the present counterclaim admissible.

2. Declare that the Player terminated the employment contract with Kairat with a just cause, with effect from 12 February 2020.

3. Order Kairat to pay the Player outstanding salary of KZT 209 1375 plus interest of 5% p.a. as of 11 February 2020 until the date of effective payment.

4. Order Kairat to pay the Player compensation for breach of contract of KZT 7,152,396.50 plus interest of 5% p.a. as of 12 February 2020 until the date of effective payment.

5. Reject the claims of Kairat against the Player and Daugavpils in their entirety insofar as they are admissible.

6. Declare that these payments of salary and compensation to the Player shall be made on a net basis, free of any taxation, Kairat being responsible for the filing and payment of all taxes relating to these payments of salary and compensation of salaries due to the Player.

7. Impose sanctions on Kairat under Article 1 7.4 or Article 24bis RSTP”.

c. Reply to the counterclaim

50. The club in its reply to the counterclaim argued that Kazakh Law “shall be taken into account” under art. 25 (6) and 26 (2) of the RSTP and art. 2 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber.

51. As to the personal allowance, the club argued that “as confirmed in the affidavit of Kairat’s General Director (cf. Enclosures X and XI of the Statement of Claim), is akin to a bonus, incentivising Kairat’s players to maintain the highest standards of professionalism and is only paid to players – in addition to their salary - based on the recommendation of the Head Coach. The club’s General Director also confirmed in his affidavit (cf. Enclosures X and XI of the Statement of Claim) that a number of the club’s players have had their personal allowance withheld at different times and for a variety of reasons”.

52. The club argued that the audio recordings submitted by the player are inadmissible on the grounds that they were obtained without the consent of the people involved, which violates Kazakh Law, namely art. 144 of the local Civil Code.

53. The club went on to confirm that it was the Head Coach’s decision to put the player on a separate training schedule. The club is of the position that the player was underperforming and not motivated, and hence it decided to put him on said training schedule for sporting reasons. The club is further of the opinion that clauses 2.6.14 and 2.2.7 authorized the club to do so.

54. The club further refuted the allegation that it put the player on a separate trainings schedule due to a problem with the player’s agent, and argued that the player has not met his burden of proof in this regard. The club further argued that the player’s training schedule was to end precisely one day before the club’s first match on 7 March 2020, and that the player was included in the club’s roster for the league.

55. The club further referred to the video evidence filed by the player regarding the conditions of the club in its headquarters and argued that such footage does not demonstrate the player’s allegations.

56. The club reiterated its requests for relief.

III. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER

a. Competence and applicable legal framework

57. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) 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 30 June 2020 and submitted for decision on 14 January 2021. Taking into account the wording of art. 21 of the January 2021 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.

58. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and observed that in accordance with art. 24 par. 1 in combination with art. 22 lit. a) and b) of the Regulations on the Status and Transfer of Players (edition January 2021), the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a Kazakh club, a Kazakh player and a Latvian club.

59. The Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Player (edition January 2021), and considering that the present claim was lodged on 30 June 2020, the June 2020 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

b. Burden of proof

60. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 12 par. 3 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 DRC stressed the wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider evidence not filed by the parties.

61. In this respect, the Chamber also recalled that in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in TMS.

c. Merits of the dispute

62. The competence of the DRC and the applicable regulations having been established, the DRC entered into the merits of the dispute. In this respect, the DRC started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. However, the DRC 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

63. The foregoing having been established, the Chamber moved to the substance of the matter, and took note of the fact that the parties strongly dispute whether the player had just cause or not to terminate the contract, and the consequences thereto. The Chamber also noted that the parties dispute whether Kazakh law applies to the matter at hand.

64. First of all, the Chamber wished to recall that when deciding a dispute before the DRC, FIFA’s regulations prevail over any national law chosen by the parties. In this regard, the Chamber emphasised that the main objective of the FIFA regulations is to create a standard set of rules to which all the actors within the football community are subject to and can rely on. This objective would not be achievable if the DRC would have to apply the national law of a specific party on every dispute brought to it. In this respect, the DRC wished to point out that it is in the interest of football that the examination of the aspects concerning the termination of a contract is based on uniform criteria rather than on provisions of national law that may vary considerable from country to country. Therefore, the Chamber deemed that it is not appropriate to apply the principles of a particular national law to the termination of the contract but rather the Regulations, general principles of law and, where existing, the Chamber’s well-established jurisprudence

65. In continuation, the DRC outlined that it seemed quite clear, in light of the contents on clauses 2.2.7 and 2.6.14 of the contract, that the club could indicate individual training programs to the player both while the season was ongoing or during season breaks, the latter of which pertains to the case at hand. The DRC outlined that the contents of such clauses are in principle convergent with the general duty of a player to maintain his fitness level.

66. Accordingly, the Chamber concluded that the club was contractually entitled to put the player on a separate training schedule. The DRC wished to emphasize however, for the sake of completeness, that even if a club might be contractually authorized to assign specific training schedules to a player, such authorization has to be reasonable and proportionate; in other words, it cannot amount to an abusive conduct.

67. In continuation, the Chamber turned to the evidence provided by the player in respect of the allegation that the individual training program was put in place as a punishment for the player having changed his agent, consisting from audio files and text messages. The DRC confirmed that in light of the contents of art. 12 par. 1 of the Procedural Rules and in line with the jurisprudence of the Chamber and the Court of Arbitration for Sport (CAS), such as, for instance, case CAS 7050, such evidence was admissible.

68. To this end, the majority of the members of the Chamber concurred that such evidence could not establish to a comfortable satisfaction degree the player’s allegations. It followed therefore that the majority of the members of the Chamber concurred that the notices of the player in respect of this line of reasoning, i.e. the training sessions as a punishment related to the player’s agent, should be disregarded as they lacked legal basis.

69. Notwithstanding the above, the Chamber examined the default notice sent by the player on 7 February 2020 and noted that pursuant to the wording of clauses 3.1 and 3.7 of the contract, the personal allowance was a part of the player’s fixed monthly remuneration. In particular, the Chamber unanimously found that clause 3.7 of the contract does not state that such personal allowance is conditional upon the player’s performance, but rather that is will be paid “to stimulate the improvement of the quality of work and increase the responsibility of the Employees for the performance of their duties”. The Chamber established thus that such payment was not conditional, setting aside the argument of the club that the payment was similar to a bonus, and decided that such payment should have been properly made by the club.

70. At this point, the Chamber confirmed that in spite of the fact that the club could not have withheld part of the player’s salary, such amount did not comprise of more than two monthly salaries. Concomitantly, the Chamber confirmed that the deadline granted by the player in his default notice of 7 February 2020 was short, and that the player terminated the contract on 12 February 2020, that is, only five days after having put the club in default.

71. Additionally, the Chamber acknowledged the fact that the player signed a new contract with Daugavpils on the same day he terminated the contract with Kairat.

72. In this respect, the Chamber was eager to emphasise that only a breach or misconduct which is of a certain severity justifies the termination of a contract. In other words, only when there are objective criteria, which do not reasonably permit to expect a continuation of the employment relationship between the parties, a contract may be terminated prematurely. Hence, if there are more lenient measures which can be taken in order for a party to ensure the fulfilment of its counterparty’s contractual duties, such measures must be taken before terminating an employment contract. A premature termination of an employment contract can only ever be an ultima ratio measure.

73. Based on the foregoing considerations, the majority of the members of the Chamber concurred that the player did not have just cause to terminate the contract. In short, the majority of the Chamber deemed that the player’s termination of the contract was premature; the player was still attending the individual (temporary) training sessions during a preseason period, and the contractual breach by the club had in any case not reached a level for the player to conclude that it could not reasonably be expected to continue the employment relationship.

74. Notwithstanding the above conclusion, the DRC by unanimous decision wished to emphasize that it did not take the club’s position lightly, that is, that the prolonged period of the individual training sessions and the particular circumstances of the case pertaining to the team preseason training in Turkey were duly considered; however, the majority of the members of the Chamber emphasized that the player acted prematurely in his termination, in a seemingly premediated manner since the date of the termination of the contract and the date of execution of the new contract with Daugavpils were exactly the same.

ii. Consequences

75. That said, the DRC further established that the player is to be held liable for the early termination of the contract without just cause, thereby focussing its attention on the consequences of such breach of contract.

76. In doing so, the DRC established in line with the forgoing considerations that the player is entitled to the unpaid portion of his salary of January 2020, which amounts to KZT 209,375.

77. Furthermore, the DRC confirmed that the player was employed by Kairat for 12 days in the month of February 2020, i.e. up until the contract was terminated. Therefore, the Chamber decided that the player is entitled to his pro-rata salary of February 2020, which amounts to KZT 335,000.

78. As such, the Chamber decided to partially accept the player’s counterclaim and that Kairat must pay, in accordance with the general legal principle of pacta sund servanda, the aforementioned amounts (i.e. KZT 209,375 and KZT 335,000) as outstanding remuneration in the case at hand.

79. In addition, taking into account the player’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the Chamber decided that Kairat must pay to the player interest of 5% p.a. on the said amount as from the first day after their due dates, i.e. respectively 1 February 2020 and 13 February 2020, until the date of effective payment.

80. In continuation, the Chamber turned its attention to art. 17 par. 1 of the Regulations, according to which the player is liable to pay compensation to Kairat. Furthermore, pursuant to the unambiguous contents of art. 17 par. 2 of the Regulations, the Chamber established that the player’s new club, i.e. Daugavpils, shall be jointly and severally liable for the payment of compensation. In this respect, the Chamber was eager to point out that the joint liability of the player’s new club is independent from the question as to whether the new club has committed an inducement to contractual breach or any other kind of involvement by the new club. This conclusion is in line with the jurisprudence of the DRC, which has been repeatedly confirmed by CAS. Notwithstanding, the Chamber recalled that in accordance with art. 17 par. 2 of the Regulations, it should be assumed that, unless otherwise proven, any club that signs a contract with a professional player who has terminated his/her contract without just cause has induced the player to terminate such contract.

81. The members of the Chamber 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 as well as the fees and expenses paid or incurred by the former club (amortised over the term of the contract) and whether the contractual breach falls within a protected period.

82. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment contract contains a provision by which the parties had beforehand agreed upon an amount of compensation payable by either contractual party in the event of breach of contract. Upon careful examination of said contract, the members of the Chamber deemed that the contract contains a clause which could be considered, i.e. clause 6.5.

83. In this respect, the Chamber found that the clause at stake is neither proportionate nor reciprocal insofar as the compensation is payable in favour of the club only; additionally, the amount therein indicated is equivalent to approximately 150 times the yearly remuneration of the player under the contract. Accordingly, the Chamber found that clause 6.5 cannot be upheld and that compensation due to Kairat shall be calculated on the basis of art. 17 of the Regulations.

84. In the calculation of the amount of compensation due by the player, the Chamber firstly turned its attention to the remuneration and other benefits due to the player under the existing contract and/or any new contract(s), a criterion which was considered by the Chamber to be essential. The members of the Chamber deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations allows the Chamber to take into account both the existing contract and any new contract(s) in the calculation of the amount of compensation.

85. According to the documentation provided by the parties, it appears that in accordance with the contract, which was to run until February 2021, the player was to receive a total remuneration of KZT 10,524,583. This amount includes the remainder of the player’s salaries of February 2020 (i.e. from 12 February 2020 onwards) and 12 months of remuneration from March 2020 until February 2021.

86. On the other hand, the value of the new employment agreement, concluded between the player and Daugavpils, appears to entail a monthly salary of EUR 1,050. Hence, the total contract value as converted on 12 February 2020, i.e. the date the player and Daugavpils signed their contract, is approximately KZT 3,700,655. For the sake of completeness, the Chamber wished to clarify that in order to properly calculate the aforementioned average, in accordance with the jurisprudence of the DRC, it was necessary to consider the amounts due to the player under the agreement signed with Daugavpils for the same period of time remaining in the contract. In other words, the DRC clarified that in order to properly calculate the average of the amounts due to the player under both the former and the new contract, it had to (fictionally) extend the period of the new employment contract to match the original term of the contract.

87. In view of all of the above, the Chamber concluded that bearing in mind art. 17 par. 1 of the Regulations, after having duly taken into account the specificities of the present case, the compensation considering the player’s both existing contract and any new contract(s) amounts to KZT 7,112,619, which is the average between the amounts the player is entitled to both under the contract and new employment agreement, a sum the Chamber found to be fair and proportionate.

88. The members of the Chamber then turned to the argumentation of Kairat pertaining to replacement costs allegedly incurred. In this respect, and having in mind the aforementioned principle of the burden of proof, the DRC unanimously concurred that the club failed to establish that the costs incurred with hiring another player had been done so in connection with a replacement of the player. Consequently, any argument of the club in this respect was set aside by the Chamber.

89. On account of all of the above-mentioned considerations and the specificities of the case at hand, the Chamber decided that the player must pay the amount of KZT 7,112,619 to Kairat as compensation for breach of contract. Furthermore, Daugavpils is jointly and severally liable for the payment of the relevant compensation.

90. In addition, taking into account Kairat’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the Chamber decided that the player and Daugavpils must pay to Kairat interest of 5% p.a. on the amount of compensation as of the date of claim until the date of effective payment. The Chamber highlighted that there was no contractual basis to award the interest

iii. Sporting sanctions

91. As to the matter of sporting sanctions, as established under art. 17 par. 3 and 17 par. 4 of the Regulations, the Chamber found that, albeit Kairat was not in breach of its obligations per se at the time of termination, it engaged in a posture that the Chamber found to be significant as outlined before.

92. In view of such particular situation, and yet underlining, once again, that the termination of the contract was found to be premature by the majority of the members of the DRC, the Chamber concluded that the player’s actions did not merit the imposition of sporting sanctions. In short, the DRC unanimously concluded that the overall posture of Kairat was to be considered an attenuating factor.

iv. Compliance with monetary decisions

93. Finally, taking into account the applicable Regulations, the Chamber 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.

94. In this regard, the DRC pointed out that, against players, the consequence of the failure to pay the relevant amounts in due time shall consist of a ban from playing in official matches, up until the due amounts are paid and for the maximum duration of six months.

95. Additionally, 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 and for the maximum duration of three entire and consecutive registration periods.

96. Therefore, bearing in mind the above, the DRC decided that, in the event that the player does not pay the amounts due to Kairat within 45 days as from the moment in which Kairat, following the notification of the present decision, communicates the relevant bank details to the player, a ban from playing in official matches, for the maximum duration of six months shall become effective on the player in accordance with art. 24bis par. 2 and 4 of the Regulations.

97. Likewise, the DRC decided that, in the event that Daugavpils does not pay the amounts due to Kairat within 45 days as from the moment in which Kairat, following the notification of the present decision, communicates the relevant bank details to Daugavpils, 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 Daugavpils in accordance with art. 24bis par. 2 and 4 of the Regulations.

98. Equally, the DRC decided that, in the event that Kairat does not pay the amounts due to the player within 45 days as from the moment in which the player, following the notification of the present decision, communicates the relevant bank details to Kairat, 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 Kairat in accordance with art. 24bis par. 2 and 4 of the Regulations.

99. The DRC recalled that the above-mentioned bans 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.

d. Costs

100. The Chamber referred to article 18 par. 2 of the Procedural Rules, according to which “DRC proceedings relating to disputes between clubs and players in relation to the maintenance of contractual stability as well as international employment related disputes between a club and a player are free of charge”. Accordingly, the Chamber decided that no procedural costs were to be imposed on the parties.

101. Likewise and for the sake of completeness, the Chamber recalled the contents of art. 18 par. 4 of the Procedural Rules, and decided that no procedural compensation shall be awarded in these proceedings.

102. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any of the parties.

IV. DECISION OF THE DISPUTE RESOLUTION CHAMBER

1. The claim of the Claimant/Counter-Respondent, FC KAIRAT, is partially accepted.

2. The Respondent 1/Counter-Claimant, RAMAZAN ORAZOV, has to pay to the Claimant/Counter-Respondent, the following amount:

- KZT 7,112,619 as compensation for breach of contract without just cause plus 5% interest p.a. as from 30 June 2020 until the date of effective payment.

3. The Respondent 2, FC DAUGAVPILS, is jointly and severally liable for the payment of the aforementioned compensation.

4. Any further claims of the Claimant/Counter-Respondent are rejected.

5. The Claimant/Counter-Respondent is directed to immediately and directly inform the Respondent 1/Counter-Claimant and the Respondent 2 of the relevant bank account to which the payment is to be made.

6. The Respondent 1/Counter-Claimant and the Respondent 2 shall provide evidence of payment of the due amount in accordance with this decision to psdfifa@fifa.org, duly translated, if applicable, into one of the official FIFA languages (English, French, German, Spanish).

7. In the event that the amount due, plus interest as established above is not paid by the Respondent 1/Counter-Claimant within 45 days, as from the notification by the Claimant/Counter-Respondent of the relevant bank details to the Respondent 1/Counter-Claimant, the following consequences shall arise:

 1.

The Respondent 1/Counter-Claimant shall be restricted on playing in official matches up until the due amount is paid and for the maximum duration of six months. The aforementioned ban mentioned will be lifted immediately and prior to its complete serving, once the due amount is paid (cf. art. 24bis of the Regulations on the Status and Transfer of Players). 2.

In the event that the payable amount as per in this decision is not paid within the granted deadline, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee.

8. In the event that the amount due, plus interest as established above is not paid by the Respondent 2 within 45 days, as from the notification by the club /Counter-Respondent of the relevant bank details to the Respondent 2, the following consequences shall arise:

 1.

The Respondent 2 shall be banned from registering any new players, either nationally or internationally, up until the due amount is paid and for the maximum duration of three entire and consecutive registration periods. The aforementioned ban mentioned will be lifted immediately and prior to its complete serving, once the due amount is paid.

(cf. art. 24bis of the Regulations on the Status and Transfer of Players). 2.

In the event that the payable amount as per in this decision is 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 the FIFA Disciplinary Committee.

9. The counterclaim of the Respondent 1/Counter-Claimant is partially accepted.

10. The Claimant/Counter-Respondent has to pay to the Respondent 1/Counter-Claimant the following amounts:

- KZT 209,375 as outstanding remuneration plus 5% interest p.a. as from 1 February 2020 until the date of effective payment;

- KZT 335,000 as outstanding remuneration plus 5% interest p.a. as from 13 February 2020 until the date of effective payment.

11. Any further claims of the Respondent 1/Counter-Claimant are rejected.

12. The Respondent 1/Counter-Claimant is directed to immediately and directly inform the Claimant/Counter-Respondent of the relevant bank account to which the payment is to be made.

13. The Claimant/Counter-Respondent shall provide evidence of payment of the due amount in accordance with this decision to psdfifa@fifa.org, duly translated, if applicable, into one of the official FIFA languages (English, French, German, Spanish).

14. In the event that the amount due, plus interest as established above is not paid by the Claimant/Counter-Respondent within 45 days, as from the notification by the Respondent 1/Counter-Claimant of the relevant bank details to the Claimant/Counter-Respondent, the following consequences shall arise:

 1.

The Claimant/Counter-Respondent shall be banned from registering any new players, either nationally or internationally, up until the due amount is paid and for the maximum duration of three entire and consecutive registration periods. The aforementioned ban mentioned will be lifted immediately and prior to its complete serving, once the due amount is paid.

(cf. art. 24bis of the Regulations on the Status and Transfer of Players). 2.

In the event that the payable amount as per in this decision is 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 the FIFA Disciplinary Committee.

15. The decision is rendered free of costs.

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer

NOTE RELATED TO THE APPEAL PROCEDURE:

According to article 58 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 20 of the Procedural Rules).

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