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 19 November 2020

Decision of the

Dispute Resolution Chamber

passed on 19 November 2020,

regarding an employment-related dispute concerning the player Fernander Kassai

COMPOSITION:

Geoff Thompson (England), Chairman

Daan de Jong (Netherlands), member

Michelle Colucci (Italy), member

CLAIMANT:

Fernander Kassai, France

Represented by Mr Vasilyev Dmitry

RESPONDENT:

FC Tobol, Kazakhstan

Represented by Ms Maria Tokmakova

I. FACTS

1. On 24 October 2017, the French player, Mr Fernander Kassai (hereinafter: the player or the Claimant) and the Kazakhstani club, FC Tobol (hereinafter: Tobol or the Respondent), concluded an employment contract (hereinafter: the contract), valid as from 3 January 2018 until 30 November 2019.

2. Clause 10 of the contract stipulated that “If at the expiration of this employment agreement, the employment relationship actually continues and neither of the parties has demanded their termination, then the contract is considered extended for an indefinite period”.

3. According to art. 3 of the contract, the club undertook to pay the player a monthly salary in the amount of Kazakhstan Tenge (KZT) 100,000, to be paid on the 10th day of each month. According to clauses 3 and 4 of Appendix 1 of the contract, the salary is paid in KZT and the exchange rate is fixed at USD 1 = KZT 336.

4. Moreover, according to clause 4 of Appendix 1 of the contract, the club undertook to pay to the player, inter alia, the following amounts:

- KZT 18,567,000 before 1 February 2018;

- KZT 18,567,000 before 1 March 2018;

- KZT 18,567,000 before 1 April 2018;

- KZT 9,934,000 before 1 May 2018;

- KZT 9,934,000 before 1 June 2018;

- KZT 9,934,000 before 1 July 2018;

- KZT 9,934,000 before 1 August 2018;

- KZT 9,934,000 before 1 September 2018;

- KZT 9,934,000 before 1 October 2018;

- KZT 9,934,000 before 1 November 2018;

- KZT 9,934,000 before 1 December 2018;

- KZT 18,567,000 before 1 February 2019;

- KZT 18,567,000 before 1 March 2019;

- KZT 18,567,000 before 1 April 2019;

- KZT 9,934,000 before 1 May 2019;

- KZT 9,934,000 before 1 June 2019;

- KZT 9,934,000 before 1 July 2019;

- KZT 9,934,000 before 1 August 2019;

- KZT 9,934,000 before 1 September 2019;

- KZT 9,934,000 before 1 October 2019;

- KZT 9,934,000 before 1 November 2019;

- KZT 9,934,000 before 1 December 2019.

5. On 1 July 2019, the parties concluded an agreement titled “Additional agreement N°3” (hereinafter: the contract extension) according to which the contract was extended until 30 November 2021. Pursuant to the contract extension, the club undertook to pay to the player the following net remuneration:

- USD 50,000 before 10 February 2020;

- USD 50,000 before 10 March 2020;

- USD 50,000 before 10 April 2020;

- USD 25,000 before 10 May 2020;

- USD 20,000 before 10 June 2020;

- USD 20,000 before 10 July 2020;

- USD 20,000 before 10 August 2020;

- USD 20,000 before 10 September 2020;

- USD 20,000 before 10 October 2020;

- USD 20,000 before 10 November 2020;

- USD 20,000 before 10 December 2020;

- USD 50,000 before 10 February 2021;

- USD 50,000 before 10 March 2021;

- USD 50,000 before 10 April 2021;

- USD 25,000 before 10 May 2021;

- USD 20,000 before 10 June 2021;

- USD 20,000 before 10 July 2021;

- USD 20,000 before 10 August 2021;

- USD 20,000 before 10 September 2021;

- USD 20,000 before 10 October 2021;

- USD 20,000 before 10 November 2021;

- USD 20,000 before 10 December 2021.

6. As to the dispute resolution mechanisms, the contract provided the following instructions under its clauses 9.1, 9.2 and 9.3:

“9.1 All occurring during the execution of this employment agreement disputes will be resolved by the parties through negotiations.

9.2 If the dispute between the Parties is resolved in the negotiating process in accordance with the Regulations of the status and transfer of football players of FIFA without prejudice to the final settlement of the question, should confine itself to provisions of the Regulation on the status and transfer of football players of FIFA or FFK on the status and transfer of players.

9.3. If the dispute between the Parties is not resolved in the negotiations in the conciliation Commission and/or legal bodies of the FFK, it will be reviewed in accordance with the Labour Code of Kazakhstan in the Almaty regional court on civil cases of the Astana city, the Employee is entitled to seek dispute directly associated with this Employment contract in Court of Arbitration for Sport (CAS, Lausanne) consideration of dispute by the arbitrator of the Chamber of dispute resolution of FIFA (FIFA Dispute Resolution Chamber)”.

7. On 6 November 2019, the parties allegedly concluded a termination (hereinafter: the termination agreement) whereby it is indicated that, in the context of the expiry of the contract of 24 October 2017, the club terminates the contract as from 1 December 2019 and undertakes to pay to the player the annual leave of 5 days for the period of 12 September until 30 November 2019 and to pay any indemnity.

8. On 11 November 2019, a press article stated that the player had missed two official matches due to a knee injury and that he would have to undergo surgery but would return to training before the next training camps.

9. By means of a document signed by the player on 30 November 2019 (hereinafter: the financial release document), the player acknowledged that the club paid every amount due as per the contract and that there were no overdue amounts at the date on which the said document was entered into by the parties.

10. In a statement published on the club’s website, dated 15 December 2019, the following was indicated that the player was leaving the club and that the club thanked the player for his work and wished the best of success for the rest of his career.

11. On 29 December 2019, the player requested the club to explain the statement dated 15 December, as he had not been informed of any termination. As such, the player held that he intended to continue working for the club as per the contract.

12. On 30 December 2019, the player requested the club to inform him about the dates and places of the pre-season camps of the club for the season 2020.

13. On 31 December 2019, the player informed the club that he had been told that the camp was to be held in Dubai as from 7 January 2020 and recalled the club that he was still a member of the team as per the contract, which was valid until 30 November 2021.

14. On 5 January 2020, the club replied, stating that, due to his current injury and to the surgery, it was decided that the player would not be called for the pre-season camp. However, the club underlined that this decision did not stop the player from resuming his individual trainings. Finally, the club requested the player to provide medical documents on the state of the injury and the surgery.

15. On 6 January 2020, the player confirmed that his injury was getting better as he was training physically and psychologically in France in order to join the team as soon as possible. As such, the player also held that he underwent surgery in France and that he paid EUR 1,884. The player attached the relevant invoice, as well as 22 pictures of the surgery, for the information of the club.

16. On 27 January 2020, the player informed the club that he had recovered from his injury and was ready to join the team to the second camp. As such, he requested the club to arrange his flights.

17. On 29 January 2020, the player reiterated his request and asked the club to clearly inform him clearly about its stance with regard to the contractual relationship.

18. On 31 January 2020, the player informed the club that he was arriving in Antalya on 2 February 2020 and that he was hoping to meet with the board of the club to discuss their future cooperation.

19. In his claim, the player first stated that he had been playing for the club for 4 years without any dispute arising, and that he always complied with his obligations.

20. The player also underlined that the league in Kazakhstan starts in March and ends in November and that the club paid all salaries until 30 November 2019, to the exception of the surgery costs.

21. The player further explained that, on 30 October 2019, he sustained an injury to his knee and that the club’s doctor recommended a surgery. On 6 November 2019, an order was signed regarding the annual leave of the player, after which he travelled back to France and the national league ended on 10 November 2019.

22. The player claimed that he underwent surgery on 22 November 2019 and then started recovery under the supervision of the doctor. According to the player, he was never informed of any intention of the club to terminate the contract prior to the statement dated 15 December 2019. Following this statement, the club ignored the player’s calls and messages.

23. The player further explained that, on 2 February 2020, he arrived at the hotel of the team in Turkey. However the hotel informed him that the team had not booked any room for him. The club’s director was not happy to see him and refused to discuss with him. On the next day, upon meeting with the director and the club’s lawyer, the player was informed that his contract had expired and that the contractual relationship was over. The club further invited the player to sign a document whereby the contract was terminated and the parties had no financial claim in exchange of a letter authorising the player to move to any other club. However, the player refused to sign any document.

24. The player explained that he stayed in a neighbour hotel and invited his lawyer to meet again with the director and lawyer of the club. As such, the club affirmed that the player had signed the termination of the contract, as well as a document confirming that he had no financial claims against the club. The club stated that it would make an expertise of the player’s signature to prove the authenticity of these documents. The player and his lawyer maintained that these documents were forged. The player further mentioned that the director of the club threatened him to make public his health condition if he refused to amicably terminate the contract.

25. The player maintained that the strategy of the club was to force him to sign the termination agreement and thereby put in writing that he had no financial claim towards the club. The fact that the club insisted on the signature of the termination agreement, whilst claiming that the contract had already expired, is contradictory.

26. On, 17 February 2020, the player lodged a claim before the NDRC of Kazakhstan, explaining his current situation and requesting measures authorising him to train and to join another club as well as to impose a transfer ban on the club.

27. On 20 February 2020 according, the club submitted its reply to the NDRC of Kazakhstan, requesting the rejection of the player’s claim as it is illegal and unreasonable and to confirm the termination of the contract.

28. On an unknown date 26 March 2020, the player wrote to the NDRC of Kazakhstan stating that he was doubtful of “the NDRC as the judicial body of the FFK, which is unable to lead proceedings in a legitimate and impartial way for this dispute. I believe that the DRC of the FFK is acting against the interests of the claimant”. As such, the player asked the NDRC of Kazakhstan to terminate the proceedings and stated that he would submit the dispute to FIFA’s DRC.

29. In his claim, the player emphasised that he did not request a resolution of the dispute before the NDRC of Kazakhstan, but merely provisional measures in order to allow him to protect his rights whilst awaiting the resolution of the dispute before FIFA.

30. The player claims that he was first made aware of the alleged termination during the proceedings before the NDRC of Kazakhstan. He contested ever having signed the termination agreement.

31. In order to support the argumentation that his signature had been forged on the alleged termination agreement, the player submitted an expert report. The report concludes that the signature on said document does not come from the player’s hand and that it was therefore forged.

32. In light of the above, the player held that the contract was never terminated. Alternatively, the player stressed that, even if he had signed the termination agreement, quad non, the player argued that there is further evidence that demonstrates that the contract was not terminated. In this context, the player maintained that, if the contract was validly terminated on 6 November 2019:

- Why did the club publish a statement on 11 November 2019 mentioning that the player would return from injury promptly to train with the team;

- Why did the club wait 40 days (statement dated 15 December 2019) to publicly announce the termination of the contract with the player;

- Why did the club reply to the player on 5 January 2020 stating that he was not selected to the pre-season camp due to his current injury and to the surgery but that this did not stop the player from resuming his individual training. The club would not have said this if the player was no longer a player of the club;

- The player further argued that the club threatened his agent by making him sign a document whereby he would not represent and testify in favour of the player before FIFA and CAS;

- Given the situation of the player on 6 November 2019 (he is 32 years old, had 2 years remaining on his contract, sustained an injury 6 days earlier and had no other offer from another club), it would have been nonsense to sign the alleged termination.

33. Therefore, the player concluded that the club forged his signature on the alleged termination agreement. In line with the aforementioned, the player held that, given that the contract is still valid, it should be noted that the club has not paid any salary since December 2019.

34. As such, the player requested the following:

 USD 630,000 net corresponding to the salaries as from 10 February 2020 until 10 December 2021;

 KZT 2,400,000 net corresponding to monthly salary of KZT 100,000 x 24 months;

 5% interest p.a. on the aforementioned amounts as from 6 November 2019;

 EUR 1,884 as the medical costs paid by the player + 5% interest p.a. as from 22 November 2019;

 Legal costs.

35. In its reply, as to the competence, the club held that this is a case of forum shopping since a claim had already been lodged by the player before the NDRC of Kazakhstan; and that, whilst the player terminated the proceedings before the NDRC of Kazakhstan on 26 March 2020, the club argued that it “did not withdraw its counterclaim from the FFK NDRC, thus the proceedings on the aforementioned dispute are still pending”.

36. The club further referred to art. 22 of the Regulations according to which parties may opt for disputes to be decided by an independent arbitration tribunal at national level. Moreover, the club referred to clause 9.3 of the contract to argue that the parties agreed to submit any dispute before the judicial bodies of the Kazakhstani FA and only alternatively, to CAS or FIFA

37. The club maintained that, by lodging a claim before the NDRC of Kazakhstan, the player acknowledged its competence over FIFA. Therefore, in accordance with the principle litis pendens, the dispute shall not be admitted by any other legal body for consideration and the claim must be considered inadmissible. In support of its statement, the club provided jurisprudence of the DRC and CAS.

38. As to the substance, the club argued that the player agreed to terminate the contract because the player in order to join a club “from a top-tier championship” but that he then suffered an injury. The club further argued that it never authorised the player to return to France to undergo surgery.

39. According to the club, a while before the end of the season, i.e. on 10 November 2019, the parties agreed upon the termination of the contract, thereby agreeing that it would end on the original termination date of 30 November 2019. In this context –explained the Respondent–, the parties signed the alleged termination agreement on 6 November 2019.

40. Moreover, the club explained that the parties signed the financial release document dated 30 November 2019, whereby the player confirmed that all financial dues had been paid to him.

41. In its statement of defence, the club acknowledged having issued the annual leave document to the player due to the fact that the whole team was on vacation following the last game of the season; and that, following the end of the season, the club published various statements on its website announcing the departure and arrival of different players.

42. As per the Respondent, the parties decided to terminate the contract due to the expiration of its term on 1 December 2019. In this regard, the club affirmed that the player signed the alleged termination himself, which is ratified by the analyst report provided by the Respondent within the scope of the present proceedings, which concluded that the signature was authentic. In this respect, the club explained that the expert report submitted by the player only used 3 different signatures to conclude that the signature was forged, whilst the analyst’s report presented by the club used 31 different signatures of the player to conclude its authenticity.

43. In light of the above, the club maintained that the player agreed to terminate the contract and to annul the contract extension. The club further argued that the draft of the document that it submitted to the player for signature in February 2020 was not to terminate the contract but to provide the player with a guarantee that he was free from any obligation with the club following the termination of the contract. However, as per the club, the player refused to sign it because he considered that he could receive more money by suing the club for the residual value of the contract.

44. Concerning the injury of the player, the club maintained that it never authorised him to return to France to undergo surgery in “a facility not approved by the Club and without any confirmation form the Club whatsoever”.

45. The club claimed that “after the Player signed the Termination Order and the Confirmation and voluntarily departed to France to undergo medical treatment at his own expenses, this confirming the termination of the Contract due to the expiry of its term, he should be estopped from claiming that the Contract was terminated by the Club unilaterally pursuant to the principle venire contra factum proprium”.

46. With regard to the correspondence exchanged between the player and the club in December 2019 and January 2020, the club argued that the player was aware that the contract was terminated and was thus trying to offer his services to the club in order to sign a new employment contract, as follows: “Therefore, the Club decided that the Player wanted to reinitiate the employment relationship with the Club and sign a new employment contract. However, the Club was aware of the medical condition of the Player and was not willing to sign a new employment contract with the Player, who had not been training for months. Accordingly, by means of an email dated 5 January 2020 the Club informed the Player that it was not interested in his services, specifically indicating that it was not willing to invite him to the training camp for a trial, but offered him to provide medical records to be able to perhaps reevaluate its decision later.”

47. In light of all of the above, the club requested the DRC to consider the claim of the player inadmissible or alternatively, to reject it.

48. Alternatively ,the club requested that, should the DRC decide that the club terminated the contract without just cause, then the compensation due to the player should be mitigated with the employment contract signed by the player with the Romanian club, FC Gaz Metan Medias.

49. On 24 August 2020, the player and the Romanian club, Sports Club Gaz Metan Medias, signed an employment contract (hereinafter: the new contract), valid as from 20 August 2020 until 30 June 2022. According to clause 4 of the new contract, the player was entitled to receive, inter alia, the following remuneration:

- For the period as from 20 August 2020 until 30 June 2021: EUR 3,000 net per month;

- For the period as from 1 July 2021 until 30 June 2022: EUR 6,000 net per month.

50. However, on 1 October 2020, the player and Sports Club Gaz Metan Medias signed a mutual termination agreement according to which the club undertook to pay the player a compensation of EUR 9,000.

II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) analyzed whether it was competent to deal with the case at hand. Taking into account the wording of art. 21 of the June 2020 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.

2. Subsequently, the Dispute Resolution Chamber referred to art. 3 par. 1 of the Procedural Rules and emphasized that, in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players, the Dispute Resolution Chamber is in principle competent to deal with matters which concern employment-related disputes with an international dimension between players and clubs, such as the present one, which involves a French player and a Kazakh club.

3. However, the Dispute Resolution Chamber noted that, in its reply, the Respondent challenged the competence of FIFA by referring to clause 9.3 of the contract, in accordance with which the parties shall submit any eventual dispute arising from the contract before the NDRC of Kazakhstan and, only subsidiary, could the parties seek redress before FIFA or CAS. In addition, the DRC noted the argumentation of the Respondent, who held that, when lodging a claim before the NDRC of Kazakhstan, the Claimant acknowledged the competence of the said NDRC over the competence of the DRC of FIFA.

4. In relation to the above, the Chamber deemed it vital to outline that one of the basic conditions that needs to be met in order to establish whether a deciding body, other than the DRC, can settle an employment-related dispute between a club and a player of an international dimension, is that the competence of the relevant arbitration tribunal or respectively national court, derives from a clear reference in, inter alia, the employment contract at the basis of the dispute.

5. Therefore, while analyzing whether it was competent to adjudicate the present matter, the Dispute Resolution Chamber considered that it should, first and foremost, analyze whether the employment contract at the basis of the present dispute actually contained a clear and exclusive jurisdiction clause in favor of a specific court or decision-making body.

6. In this respect, after duly examining the contents of the contract that is at the basis of the present dispute, the Chamber observed there is no clear and exclusive jurisdiction clause in the contract in favor of the Kazakh NDRC.

7. In addition, the DRC noted that clause 9.3 of the contract does refer to both, FIFA and CAS, as competent bodies to adjudicate on any matter related to a dispute arisen in connection with the contract at stake. As to the argument of the Respondent regarding the hierarchical competence instructions contained in the said clause, in accordance with which the Claimant must have sought for redress before the “legal bodies of the FFK”, the Chamber determined that clause 9.3 of the contract does not grant exclusive competence to the said deciding body and clearly refers to FIFA and CAS as competent instances before which contractual disputes could be submitted.

8. In addition to the above, the Chamber referred to the argument of the Respondent by means of which the latter stressed that the DRC shall not be competent due to the existing litis pendence before the NDRC of Kazakhstan. In this respect, the DRC noted that the aforesaid request, submitted in front of the NDRC of Kazakhstan, was later on withdrawn by the player. In this regard, the Chamber acknowledged the argument of the Respondent, who maintained that, insofar it lodged a counter-claim before the said NDRC, the said proceedings have not finished and the procedural exception of litis pendence shall be appreciated by this Chamber.

9. In this context, the DRC –after carefully analyzing the documentation on file– came to the unanimous conclusion that the player only initiated legal proceedings before the said NDRC in order to request provisional measures aimed at: being allowed to resume his trainings with the Respondent club, eventually join another team and a transfer ban being imposed on the club. Hence, considering that no financial claims were made by the player before the NDRC of Kazakhstan, the Chamber determined that no litis pendence is to be appreciated, insofar the claimed objects are different and the eventual issuance of a decision by the NDRC of Kazakhstan could enter into a conflict with the decision issued by the DRC.

10. As to the argument of the Respondent that it lodged a counter-claim before the NDRC of Kazakhstan, the DRC analyzed the documentation on file and concluded that the Respondent did not provide evidence regarding having lodged the said counter-claim and, thus, given that the original claim of the player before the said deciding body was withdrawn, no decision should be pending before the NDRC of Kazakhstan.

11. In view of all of the above, the DRC confirmed that it is competent to hear over the present dispute ex. art. 24 par. 1 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players.

12. In continuation, the Dispute Resolution Chamber analyzed which edition of the Regulations of the Status and Transfer of Players should be applicable to the present matter. In this respect, the Dispute Resolution Chamber 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 claim was lodged on 19 June 2020, the June 2020 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand.

13. With the above having been established, the Dispute Resolution Chamber entered into the substance of the matter. In doing so, it started to acknowledge the facts of the case as well as the documents contained in the file. However, the Dispute Resolution Chamber emphasized that in the following considerations it will refer only to facts, arguments and documentary evidence which it considered pertinent for the assessment of the matter at hand.

14. In this respect, the Chamber noted that, on 24 October 2017, the parties concluded an employment contract (the contract) valid as from 3 January 2018 until 30 November 2019; which was subject of novation through the conclusion –on 1 July 2019– of a document titled “Additional agreement Nº3”, in accordance with which the parties agreed to extend the duration of the contract until 30 November 2021.

15. In addition, the Chamber took note that the parties concluded a document dated 30 November 2019, whereby the Claimant acknowledged having received his monetary entitlements until the date of conclusion of the said document.

16. Moreover, the DRC acknowledged the argumentation brought forward by the Respondent, according to which the parties would have concluded a termination agreement on 6 November 2019, by means of which the parties agreed that the now Respondent would pay to the now Claimant “the annual leave of 5 days for the period of 12 September until 30 November 2019 and to pay any indemnity” as compensation for the early termination of the contract.

17. Subsequently, the Chamber acknowledged that the Claimant lodged a claim before FIFA, requesting, inter alia, outstanding remuneration and compensation for breach of contract from the club in the amounts of USD 630,000 net, KZT 2,400,000 net and EUR 1,884, plus interests, as displayed in point I. 34 above.

18. In this context, the DRC noted that the Claimant suffered an injury on 30 October 2019, which obliged the player to undergo surgery. In this context, the DRC noted that the Claimant acknowledged that the club complied with its financial obligations towards him until 30 November 2019 and that, thereafter, he found out –via a press report published on 15 December 2019–, that he had left the club. In this sense, the DRC took note of the argumentation wielded by the Claimant, who maintained that the contract was not terminated due to the signature of any termination agreement and who held that club prevented him from resuming his professional activities with the rest of the team once he recovered from surgery in January 2020.

19. Conversely, the Chamber noted that, for its part, the club based its defense in the termination agreement allegedly concluded between the parties on 6 November 2019, whereby the parties would have agreed on the cessation of their contractual obligations towards each other as from 1 December 2019.

20. Furthermore, the DRC noted that, on his part, the Claimant challenged the authenticity of the termination agreement, holding that the club tried to force him to sign the termination agreement in order to avoid any financial liability arising upon the premature termination of the contract, but that he never accepted said conditions and never signed the aforementioned termination agreement. What is more, the Chamber observed that, according to the player, the latter only became aware of the existence of the said termination agreement during the proceedings conducted before the NDRC of Kazakhstan. As to the signature stamped in the said termination agreement, the DRC observed that the Claimant maintained that it was forged by the Respondent, whereas the latter held that the Claimant did sign the termination agreement. What is more, the Chamber noted that both parties provided their respective expert reports in support of their positions.

21. In view of the dissent between the parties, the members of the Chamber agreed on the fact that the main issue in connection with the present dispute was to determine whether the parties did or did not conclude the termination agreement dated 6 November 2020.

22. In this respect, the Chamber was eager to emphasize that the Dispute Resolution Chamber is not a criminal court and, as such, it cannot enter into a rigorous analysis regarding the authenticity of signatures stamped in an agreement. Nevertheless, the Chamber, in order to adjudicate on the present matter, requested the Respondent to provide the original document of the termination agreement allegedly concluded between the parties on 6 November 2020, which was duly received by the FIFA administration. After a careful analysis of the signature therein contained, after having compared it with the different signatures provided by both parties during the course of the present proceedings, and after having considered the expert reports regarding the calligraphy of the player, the DRC reached to the conclusion that it could not determine with sufficient certainty whether the said signature belonged or not to the handwriting of the player.

23. In this regard, the Chamber determined that the desired standard of proof in cases where documental forgery is alleged by one of the parties should be the standard of reaching a conclusion beyond reasonable doubt, which could not be reached in the present case.

24. Consequently, the Chamber took into consideration all the arguments brought forward by the parties, the evidence provided in support of their allegations as well as the uncontested facts. In particular, the DRC referred to 2 specific circumstances surrounding the alleged termination of the contract: the club´s statement published on 11 November 2019, whereby the club communicated that the player would resume his activities with the Respondent club after recovering from his injury; and the content of the email dated 5 January 2020, by means of which the Respondent communicated to the Claimant that the reason why he was not summoned for the pre-season camp in Dubai as from 7 January 2020 was the injured suffered by the player, which obliged the latter to undergo surgery and thereby also requested the player to send to the club the relevant medical documents regarding the surgery and to inform the club about his medical status in order consult the club´s doctor and take a decision. As to the announcement made on 11 November 2019, the Chamber unanimously concluded that, should the parties had reached a valid termination agreement on 6 November 2019, no such announced would have been made by the Respondent on 11 November 2019. In connection with the correspondence dated 5 January 2020, the Chamber determined that, if –as ascertained by the Respondent– no contractual obligations were enforceable as from 1 December 2020, the reason provided by the Respondent to the Claimant in that correspondence in connection with the club not having convoked the player for the pre-season camp in Dubai would have been the cessation of the contractual relationship of the parties as from 1 December 2019, and not the fact that the player got injured and needed to undergo surgery. Moreover, the DRC determined that, if the contractual relationship did no longer exist as from 1 December 2019, the club would not need to ask the club´s doctor about the state of the player and take any decision, as stated in the correspondence dated 5 January 2020.

25. In view of the above, the Chamber concluded that the above-mentioned behaviors of the Respondent led the DRC to reach a comfortable satisfaction in determining that the parties did not conclude the alleged termination agreement dated 6 November 2019, standard of proof which the DRC defined as greater than a mere balance of probability.

26. Thus, the Chamber concluded that, having established that the parties did not enter into a termination agreement, the contractual relationship did not terminate on 1 December 2019, but continued in force. Regarding the date on which the contract was, de facto, terminated, the Chamber observed that no termination letter was on file and that no further evidence was provided by the parties in that regard. Thus, the DRC concluded that, in view of the allegations of the Claimant that the contract was still valid, the Chamber considered the date on which the claim was lodged, i.e. 19 June 2020, as the date of termination of the contract with just cause by the Claimant.

27. Bearing in mind the previous considerations, the DRC went on to deal with the consequences of the early termination of the employment contract.

28. First of all, the DRC concurred that the Respondent must fulfil its obligations as per employment contract up until the date of termination of the contract in accordance with the general legal principle of “pacta sunt servanda”.

29. On account of the above considerations and the documentation on file, the DRC decided that the Respondent is liable to pay to the Claimant the remuneration that was outstanding at the time of the termination i.e. the amounts of KZT 600,000 and USD 195,000 consisting of the following entitlements:

- As per the contract: KZT 600,000 (KZT 100,000*6 months: the monthly salaries as from January until June 2020);

- As per the Additional agreement N°3: USD 195,000 (instalments from 10 February to 10 June 2020; cf. point I.5 above).

30. In addition, taking into account the Claimant’s claim, as well as the DRC’s longstanding jurisprudence in this respect, the DRC decided to award the Claimant interest of 5% p.a. on the outstanding moneys. As to the date as from which the default interest should be granted, despite the granted instalments having a contractually agreed due date, the DRC deemed that, considering that the player requested the payment of 5% interest as from 6 November 2019 and not as from their dates, the 5% default interest shall be granted as from the date on which the claim was lodged, i.e. as from 19 June 2020.

31. In continuation, the Chamber decided that, taking into consideration art. 17 par. 1 of the Regulations, the Claimant is entitled to receive from the Respondent compensation for breach of contract in addition to any outstanding remuneration on the basis of the relevant employment contract. In this context, the Chamber outlined that, in accordance with said provision, 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 Claimant under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, and depending on whether the contractual breach falls within the protected period.

32. In application of the relevant provision, the Chamber held that it firstly had to clarify whether the pertinent employment contract contained any clause by means of which the parties had beforehand agreed upon a compensation payable by the contractual parties in the event of breach of contract. In this regard, the Chamber established that no such compensation clause was included in the employment contract at the basis of the matter at stake.

33. Subsequently, and in order to evaluate the compensation to be paid by the Respondent, the members of the Chamber took into account the remuneration due to the Claimant in accordance with the employment contract as well as the time remaining on the same contract, along with the professional situation of the Claimant after the early termination occurred.

34. In this respect, the Chamber pointed out that, at the time of the termination of the employment contract on 19 June 2020, the contract would have still run until 30 November 2021, and that the contract stipulated that the player was entitled to a total amount, during the said period, of KZT 1,700,000 (i.e. KZT 100,000*17, from July 2020 to November 2021) as per the contract; and of USD 435,000 (the instalments due to the player as from 10 July 2020 until 10 December 2021 as per the Additional Agreement Nº3; cf. point I 5 above).

35. In continuation, the Chamber verified as to whether the Claimant 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, 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.

36. In this respect, the Chamber noted that, on 24 August 2020, the player and the Romanian club, Sports Club Gaz Metan Medias, signed an employment contract valid as from 20 August 2020 until 30 June 2022, in accordance with which the player was entitled to a monthly salary of EUR 3,000 net as from August 2020 until June 2021; and to a monthly salary of EUR 6,000 net as from July 2021 until June 30 June 2022. The DRC further noted that the said parties might have concluded a termination agreement on 1 October 2020, whereby the Respondent undertook to pay to the Claimant a final amount of EUR 9,000 as compensation for the early termination of the contract. Nevertheless, since the authenticity of the said termination agreement could not be proved, also taking into account that the said Romanian club is not part of the presents proceedings, the Chamber decided to take into consideration –for mitigation purposes– the amounts indicated in the contract dated 24 August 2020.

37. In view of the above, the Chamber acknowledged that, during the overlapping period, the Claimant was able to mitigate his damages in an amount equal to EUR 61,000 (EUR 1,000 corresponding to the 10 days of the month of August 2020, EUR 30,000 corresponding to the salaries as of September 2020 until June 2021, and EUR 30,000 corresponding to the salaries as from July 2021 until November 2021), which equals USD 68,381.

38. Thus, the Chamber established that the mitigated compensation would correspond to KZT 1,700,000 and USD 366,619 (435,000 – 68,381 = 366,619).

39. Moreover, taking into account the Claimant’s request as well as the longstanding jurisprudence in this respect, the Chamber decided to award 5% interest p.a. over said amounts as from the date of the claim until the date of effective payment.

40. Regarding the medical costs requested by the Claimant in the amount of EUR 1,884, the Chamber decided that, in view of the lack of a contractual provision whereby the parties had agreed on the procedure to follow in case of injury of the player, and given that the player did not provide evidence regarding the club´s acceptance of the player´s surgery in a facility not approved by the club nor any confirmation regarding the player´s undertakings in this regard, the DRC decided to reject the player´s claim in connection with the requested medical expenses incurred by the latter.

41. In respect to the legal costs requested by the Claimant, the Chamber referred to its constant jurisprudence and stressed that, in view of the international dimension of the disputes submitted to the DRC whose legal costs in which the parties thereto eventually incur can broadly differ; and in view of the absence of uniformed criteria regarding the estimated legal costs incurred by a party to a proceeding held before FIFA´s deciding-bodies, legal costs requested by the parties shall be rejected.

51. Furthermore, taking into account the previous considerations, the Dispute Resolution 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.

42. In this regard, the Dispute Resolution Chamber 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.

43. Therefore, bearing in mind the above, the Dispute Resolution Chamber 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.

44. Finally, the Dispute Resolution Chamber recalled that the above-mentioned ban will be lifted immediately and prior to its complete serving upon payment of the due amounts, in accordance with art. 24bis par. 3 of the Regulations.

45. The DRC concluded its deliberations on the present matter by establishing that the claim of the Claimant is admissible and partially accepted.

III. DECISION OF THE DISPUTE RESOLUTION CHAMBER

1. The claim of the Claimant, Fernander Kassai, is admissible.

2. The claim of the Claimant is partially accepted.

3. The Respondent, FC Tobol, has to pay to the Claimant, the following amounts:

- KZT 600,000 as outstanding remuneration plus 5% interest p.a. as from 19 June 2020 until the date of effective payment;

- USD 195,000 as outstanding remuneration plus 5% interest p.a. as from 19 June 2020 until the date of effective payment;

- KZT 1,700,000 as compensation for breach of contract without just cause plus 5% interest p.a. as from 19 June 2020 until the date of effective payment;

- USD 366,619 as compensation for breach of contract without just cause plus 5% interest p.a. as from 19 June 2020 until the date of effective payment.

4. Any further claims of the Claimant are rejected.

5. The Claimant is directed to immediately and directly inform the Respondent of the relevant bank account to which the Respondent must pay the due amount.

6. The 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).

7. In the event that the amount due, plus interest as established 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 following consequences shall arise:

 1.

The 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.

8. 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).

CONTACT INFORMATION:

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