F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2019-2020) – fifa.com – atto non ufficiale – Decision 12 February 2020

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 12 February 2020,

in the following composition:

Omar Ongaro (Italy), Deputy Chairman

Johan van Gaalen (South Africa), member

José Luis Andrade (Portugal), member

on the claim presented by the club,

FC Kairat Almaty, Kazakhstan,

represented by Mr Luca Tettamanti

as Claimant

against the player,

Akmal Anvarovich Bakhtiyarov, Kazakhstan;

Represented by Mr Gianpaolo Monteneri

as Respondent I

against the club,

FC Sochi, Russia

as Respondent II

and against the club,

FC Noah, Armenia

as Respondent III

regarding an employment-related dispute

between the parties

I. Facts of the case

1. On 26 February 2016, the Kazakh player, Akmal Anvarovich Bakhtiyarov (hereinafter: Respondent I or Player), born 2 June 1998, and the Kazakh club, FC Kairat Almaty (hereinafter: Claimant) signed an employment contract valid as from 1 March 2016 until 1 march 2018, according to which the player would earn a monthly salary of Kazakh Tenge (KZT) 40,000.

2. On 1 February 2017, the Claimant and the player signed a further employment contract (hereinafter: contract) valid as from the date of signature until 30 November 2019.

3. In accordance with Item 3 of the contract, the player was entitled to a monthly salary of KZT 70,000.

4. Item 6.7 of the contract stipulated the following: “In accordance with the Regulation of the Football Federation of Kazakhstan on the status and transfer of players, in case of early termination of the labor contract by the [player], in case of absence of a violation of the labor contract and the legislation of the Republic of Kazakhstan by the [Claimant], the [player] sends a notification on termination for 30 (thirty) calendar days before the supposed date of termination and shall pay compensation to the [Claimant] for early termination, in the amount of monthly remuneration of labor calculated for the period from the date of termination of this labor contract and until the expiry date of its validity term.”

5. Item 10.8 of the contract stipulated the following: “The [player] agrees that in case of concernment from another football club in the [player], the transfer amount (compensation) shall be at least 5 000 000 (five million) US dollars. The [player] will take all necessary measures to properly inform the concerned club about the transfer amount provided in this item and guarantees its payment to the [Claimant]. Obligations stipulated by this item shall remain in force, including the case of early termination of this labor contract by the [player] and the transfer of the [player] to another club.”

6. On 28 May 2018, the player unilaterally terminated his contract with the Claimant. In his termination letter, the player held the following: “In accordance with the item 6.7. of the Contract, I hereby notify you about the termination of the Contract. The date of termination is June 30, 2018. Based on the requirements of the item 6.7. of the Contract, I guarantee payment of compensation for termination of the Contract in the following amount: 70 000 tenge […] (the period from July 01, 2018 to November 30, 2019) = 1 190 000 (one million one hundred ninety thousand) tenge”.

7. On 29 May 2018, the Claimant informed the player in writing of the following: “In case of early termination of the Contract on the initiative of the [player], the [Claimant] has the full right to receive compensation payments, provided not only in the item 6.7. of the Contract, as well as the item 10.8. of the Contract […] Thus, in case of early termination of the Contract […] on your initiative, you are kindly requested to provide all amounts of compensation payments and provide the [Claimant] with the final settlement of the amounts within 3 (three) calendar days”.

8. On 27 June 2018, the player wrote a “Reminder note” to the Claimant, stating the following: “I repeatedly refer to my previous letter (dated May 28, 2018) to you with respect to the abovementioned subject. Until now, you have not sent the actual bank details to pay compensation for early termination of the Contract […]. I confirm my intentions, stated in the letter dated May 28, 2018 and guarantee the payment of compensation, in accordance with [Item 3] of the Contract. I hope for the soonest provision of bank details by you for the most correct and prompt settlement of this issue.”

9. On 2 July 2018, the Macedonian club, FC Saxan, requested the Claimant in writing to send a TPO declaration regarding the player within the next three days.

10. On 4 July 2018, the Claimant responded to FC Saxan’s request by referring to Item 10.8 of the contract as well as to Art. 17 (4) of FIFA’s Regulations on the Status and Transfer of Players. In this context, the Claimant argued that the “Player is subject to punishment in the form of a disqualification from participation in the official matches for a period of up to six months”.

11. Furthermore, also on 4 July 2018, the Claimant filed a claim against the player in front of the Kazakh Football Federation (KFF) DRC and requested the imposition of a fine of KZT 500,000 and a 6-months suspension period against the player. In its submissions, the Claimant indicated that the parties could not reach an agreement upon the early termination of the contract. The Claimant made reference to the buy-out clause of USD 5,000,000 but did not ask the KFF DRC to rule on the unilateral termination of the contract. Finally, the Claimant alleged that FC Saxan had induced the breach of contract.

12. On 9 July 2018, FC Saxan informed the Claimant via email that it was not aware of the existence of a valid contract between the Claimant and the player and therefore decided to cancel the negotiations with the player. In this context, according to the information contained in the Transfer Matching System (TMS), on 21 July 2018, FC Saxan entered a transfer instruction to engage the player permanently. However, as per the information in TMS, on 3 August 2018, the FC Saxan cancelled the transfer instruction.

13. On 24 July 2018, the KFF DRC rendered its decision condemning the player to pay a fine in the amount of KZT 500,000 to the Claimant and suspended him for 6 months as from 24 July 2018. The KFF DRC also summoned the player to return to the Claimant within the next three days.

14. According to the information contained in the TMS, on 29 August 2018, the Armenian club, FC Noah (hereinafter: Respondent III or FC Noah), entered a transfer instruction to engage the player permanently. In continuation, on 31 August 2018, the KFF rejected the ITC request, holding that the player is still under contract with the Claimant. Finally, on 14 September 2018, FIFA authorized the provisional registration of the player with FC Noah.

15. In parallel, on 7 September 2018, the KFF sent a request to FIFA in order to extend the player’s suspension internationally, which was rejected by the FIFA Players’ Status department on 20 September 2018 and by the FIFA Disciplinary Committee on 9 October 2018.

16. According to the information provided in the TMS, the player was registered with FC Sochi (hereinafter: Respondent II or FC Sochi) on 5 February 2019.

17. On 15 May 2019, the Claimant lodged a claim in front of FIFA requesting compensation. In particular, the Claimant primarily requested that the player and FC Sochi be declared jointly and severally liable to pay it compensation in the amount of USD 5,000,000 plus 5% interest p.a. as from 1 July 2018 until the date of effective payment.

18. On a subsidiary basis, the Claimant requested that the player, FC Sochi and FC Noah be declared jointly and severally liable to pay it compensation in the amount of USD 5,000,000 plus 5% interest p.a. as from 1 July 2018 until the date of effective payment.

19. On an alternative subsidiary basis, the Claimant requested that the player and FC Noah be declared jointly and severally liable to pay it compensation in the amount of USD 5,000,000 plus 5% interest p.a. as from 1 July 2018 until the date of effective payment.

20. In addition, the Claimant requested that the player be restricted on playing in official matches for six months, and that both FC Noah and FC Sochi be suspended from registering any new players at national and international level for two consecutive registration periods.

21. Finally the Claimant requested to be awarded training compensation in the amount of EUR 864,538.34, to be paid by FC Noah and/or FC Sochi.

22. In its claim, the Claimant argued that the player, while registered with the Claimant, was “widely recognized as one of the best perspectives”, having regularly participated in youth squad of the respective Kazakh national team of his ages. For this reason, the Claimant “was eager to prolong the employment relationship and negotiated an increase up to the double of the Player’s salary”, as is demonstrated by the new employment contract signed with the player on 1 February 2017.

23. According to the Claimant, between May 2016 and March 2018, the player received several call-ups to represent the youth teams of Kazakhstan. In this context, as per the Claimant, the player featured in 26 matches with the Claimant’s U19 team during season 2017, 18 matches in season 2018, plus 6 UEFA youth league matches between 2017 and 2018.

24. The Claimant further underlined that the player also featured on the bench of the Claimant’s first team on 2 occasions during season 2018 but did not make a single appearance for the Claimant’s first team. The Claimant argued that the player was a highly rated prospect.

25. Furthermore, the Claimant underlined that it had always complied with all its contractual obligations vis-à-vis the player.

26. As such, the Claimant stated that the player’s termination notice, dated 28 May 2018, came completely “out of a sudden”, and without just cause.

27. As per the Claimant, given that the player had terminated the contract without just cause, it referred to Item 10.8 of the contract and held that “this clause was supposed to cover cases in which the Player had the intention to terminate the Contract but with another club willing to register him”.

28. In other words, as per the Claimant, “the Player freely accepted that [he has] the right to be transferred to a third club via the payment of USD 5,000,000. This was mutually agreed to protect the scenario, like in the present case, where a new club was interested in the Player but preferred not to negotiate at all the Player’s transfer with [the Claimant]”.

29. The Claimant argued that “it is evident that the true intention of the Player was not to merely execute clause 6.7 of the Contract but to be transferred abroad to a new bigger club”, such as FC Sochi.

30. In this context, according to the Claimant, on 27 November 2018, the player’s transfer to FC Sochi, was announced in the press. In this regard, the Claimant maintained that, up until that moment, the player had played in approximately 10 games for the first team of FC Noah. The Claimant interpreted the transfer of the player to FC Sochi as a sign that the player’s registration with FC Noah was a bridge transfer.

31. Along these lines, the Claimant further argued that both FC Sochi and FC Noah had jointly induced the breach of contract. According to the Claimant, “this sort of scheme is not only a stratagem to try to avoid paying training compensation, but also to obstruct the payment of any compensation by the true debtor to the Claimant and to avoid the imposition of disciplinary sanctions to the persons/entities that arranged it”.

32. Therefore, and having determined that the player terminated the contract without just cause, and that FC Sochi and FC Noah had induced him to do so, the Claimant determined that are obligated to pay it compensation for breach of contract.

Consequently, and referring once again to Item 10.8 of the contract, the Claimant established that the compensation for breach of contract is to amount to USD 5,000,000.

33. Furthermore, and given all of the above, the Claimant referred to Art. 17.3 and Art. 17.4 of the FIFA RSTP, and educed that sporting sanctions should be imposed on all three respondents.

34. In reply to the Claimant’s claim, the player pointed out that he had always complied with his contractual obligations vis-à-vis the Claimant, but that he barely had any opportunities to participate with the first team. Consequently, he decided to terminate the contract on 28 May 2018 in accordance with Item 6.7 of the contract. According to the player, the compensation payable to the Claimant, i.e. “the residual value of the Contract [amounted to] 1,190,000 tenge (approximately USD 3,000)”. Subsequently, the player explained that he asked the Claimant] to provide him with the bank details where the payment was expected to be made.

35. The player further underlined that, following his termination notice, the Claimant never communicated with the player, let alone send him the bank details. According to the player, “in the absence of any reaction from [the Claimant], as from 30 June 2018, the Player left [the Claimant], as soon as the pre-termination period of one month set out in [Item 6.7] of the Contract had expired.”

36. In continuation, the player explained that in view of his lack of first team experience he did not receive many offers. In fact, the player highlighted that he was very rarely training with the Claimant’s first team and that his opportunities had been very limited in that regard.

37. Consequently, the player stated that he would have even been keen to play as an amateur with FC Saxan to keep practising. In this regard, the player further underlined that obtaining the status of amateur with FC Saxan would have not made much difference from his previous situation with the Claimant where he was only earning USD 180 per month, which “corresponded more to the reimbursement of expenses than to a real salary”.

38. As per the player, he “luckily” signed an employment contract with FC Noah on 27 August 2018, where he participated in twelve official matches between August 2018 and November 2018. According to the player, his subsequent transfer to FC Sochi cannot be considered a bridge transfer, but “only represent the ordinary course of a young player’s sporting career”.

39. Given all of the above, the player argued that the Claimant’s claim should be rejected, given that he terminated the contract in compliance with Item 6.7 of the contract. In this context, the player insisted that no compensation shall be payable. Finally, the player held that, if any compensation is deemed payable, it shall be limited to the residual value of the contract.

40. In their respective replies to the Claimant’s claim, FC Sochi and FC Noah endorsed the player’s position.

II. Considerations of the Dispute Resolution Chamber

1. 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 submitted to FIFA on 15 May 2019 and submitted to the Chamber for decision on 12 February 2020. Taking into account the wording of art. 21 of the 2019 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 members of the Chamber referred to art. 3 par. 1 of the Procedural Rules as well as art. 22. lit. a) of the Regulations on the Status and Transfer of Players, according to which FIFA is competent to hear disputes between clubs and players in relation to the maintenance of contractual stability, where there has been an International Transfer Certificate (ITC) request and a claim from an interested party in relation to said ITC request, in particular, inter alia, regarding compensation for breach of contract.

3. In view of the above, the members of the Chamber pointed out that the case at hand is related to the move of a player and his subsequent registration with a club belonging to a different association and connected to an ITC request. The foregoing fact was, in the Chamber’s view, the basis on which it is established that the Dispute Resolution Chamber shall be competent to adjudicate on the matter at hand as to the substance.

4. Furthermore, 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 Players (edition 2018) and considering that the present claim was lodged on 15 May 2019, the June 2018 edition of the said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

5. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. In this respect, the Chamber started by acknowledging all the above-mentioned facts and arguments as well as the documentation on file. However, the Chamber 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. In this respect, the Chamber recalled that, in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated by or contained in the Transfer Matching System (TMS), in order to properly assess the issue at stake.

6. The Chamber firstly recalled that the Claimant and the player signed an employment contract on 1 February 2017, valid until 30 November 2019, by means of which the player would be entitled to a monthly salary of KZT 70,000.

7. The DRC further recalled that on 28 May 2018, the player sent the termination notice invoking Item 6.7 of the contract. In other words, the Chamber understood that, according to the wording of his termination notice, the player was willing to compensate the Claimant for the contract termination in amount equal to the residual value of the contract.

8. In continuation, the DRC noted that, in its claim, the Claimant requested compensation in the amount of USD 5,000,000, in accordance with Item 10.8 of the contract, and that the player, as well as FC Noah and FC Sochi are to be held jointly and severally liable to pay this compensation. In this context, the Chamber recalled that, according to the Claimant, FC Noah and FC Sochi had induced the player to terminate the contract with the Claimant.

9. Subsequently, the Chamber noted that the player maintained that he terminated the employment relationship pursuant Item 6.7 of the contract, because he did not have sufficient opportunities with the first team of the Claimant. Meanwhile, the DRC recalled, both FC Noah and FC Sochi simply endorsed the player’s position.

10. Given the above, the Chamber deemed necessary to first establish the exact date of contract termination. Along these lines, the DRC referred to the player’s termination notice, dated 28 May 2018 by means of which the player inter alia held that “the date of termination is June 30, 2018”. Thus, the DRC established that the employment contract was effectively terminated on 30 June 2018.

11. Secondly, from the information on file, the Chamber established that both parties agreed that some amount of compensation needed to be paid by the player to the Claimant for his contract termination. Having said this, the DRC understood that the primary issue at stake in the matter is determining whether this amount of compensation should be equal to the residual value of the contract, in accordance with Item 6.7, or whether the compensation should amount to USD 5,000,000, as is allegedly stipulated in Item 10.8 of the contract.

12. In this respect, the Chamber firstly to Item 6.7 and 10.8 of the contract, and recalled that they stipulated the following:

Item 6.7: “In accordance with the Regulation of the Football Federation of Kazakhstan on the status and transfer of players, in case of early termination of the labor contract by the [player], in case of absence of a violation of the labor contract and the legislation of the Republic of Kazakhstan by the [Claimant], the [player] sends a notification on termination for 30 (thirty) calendar days before the supposed date of termination and shall pay compensation to the [Claimant] for early termination, in the amount of monthly remuneration of labor calculated for the period from the date of termination of this labor contract and until the expiry date of its validity term.”

Item 10.8: “The [player] agrees that in case of concernment from another football club in the [player], the transfer amount (compensation) shall be at least 5 000 000 (five million) US dollars. The [player] will take all necessary measures to properly inform the concerned club about the transfer amount provided in this item and guarantees its payment to the [Claimant]. Obligations stipulated by this item shall remain in force, including the case of early termination of this labor contract by the [player] and the transfer of the [player] to another club.”

13. Having carefully analysed both clauses, the DRC unanimously agreed that they are to be understood as follows: The player can terminate the contract in accordance with Item 6.7 of the contract by paying the residual value of the contract. In other words, as per the Chamber, Item 6.7 can be interpreted as a termination clause, and paying the residual value of the contract is the minimum amount of compensation payable by the player to the Claimant. However, should the player subsequently register with another club, then the player would need to compensate the Claimant with an amount of USD 5,000,000, and the new club would be jointly liable. In other words, as per the DRC, as long as the player does not register with a new club, then the compensation amount of USD 5,000,000 would not have been due.

14. Having said this, and taking into account that the player was not even 20 years old on the date of contract termination, the Chamber unanimously emphasized that one could not reasonably expect the player to fully understand the abovementioned construction of the clauses.

15. On account of the above, the DRC decided that the player terminated the contract in line with the termination clause, i.e. Item 6.7 of the contract. Consequently, the DRC established that the player is obligated to compensate the Claimant with an amount equal to the residual value of the contract.

16. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the fixed remuneration payable to the player under the terms of the employment contract signed with the Claimant for the period that was remaining since the unilateral termination of the contract by the Claimant until its expiry, i.e. from 30 June 2018 until 30 November 2019.

17. In this regard, the Chamber noted that, as per the employment contract signed with the Claimant, the contract would remain valid for another 17 months. Thus, the DRC calculated that 17 monthly instalments of KZT 70,000 each would lead to a total fixed remuneration of KZT 1,190,000. However, the DRC further noted that, from the information on file, it remained undisputed that the player had received the monthly salary corresponding to the month of July 2018. Consequently, and taking into account that the player had already ceased to provide his services to the Claimant in July 2018, the DRC agreed to include an extra month to the residual value of the contract. Consequently, the Chamber established that the residual value of the contract amounted to 18 salaries of KZT 70,000 each, i.e. a total fixed remuneration of KZT 1,260,000.

18. On account of the above, the DRC decided that the total amount of KZT 1,260,000 is to be considered as the amount to be paid as compensation for the contract termination.

19. In addition, while taking into account the Claimant’s request for interests, the Chamber recalled that in his termination notice, the player had requested the Claimant to provide him his bank details in order to pay the amount of compensation equal to the residual value of the contract. In other words, as per the DRC, the delay in payment of the compensation is the sole responsibility of the player. Consequently, the Chamber decided to reject the Claimant’s claim for interests.

20. In continuation, the Chamber noted that in its claim, the Claimant had requested that FC Noah and/or FC Sochi are to be held jointly and severally liable for the payment of compensation. Having said this, the DRC underlined that the contract had been terminated by the player in accordance with the termination clause. Therefore, the joint liability as provided in art. 17 (2) of the Regulations is not applicable to the case at hand.

21. Similarly, the Chamber decided to reject the Claimant’s request for the imposition of sporting sanctions on the three respondents, because the player had terminated the contract in accordance with the termination clause.

22. Furthermore, taking into account the consideration under number II.4. above, 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.

23. In this regard, the Chamber established that, in virtue of the aforementioned provision, it has competence to impose a restriction on the player. More in particular, the DRC pointed out that, against players, the sanction shall consist in a restriction on playing in official matches up until the due amount is paid and for the maximum duration of six months.

24. Therefore, bearing in mind the above, the DRC decided that, in the event that the player does not pay the amount 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 player, a restriction on 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.

25. Finally, the Chamber recalled that the above-mentioned sanction 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.

26. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claims lodged by the Claimant are rejected.

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III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, FC Kairat Almaty, is partially accepted.

2. The Respondent I, Akmal Anvarovich Bakhtiyarov, has to pay to the Claimant the amount of KZT 1,260,000.

3. Any further claim lodged by the Claimant is rejected.

4. The Claimant is directed to inform the Respondent, immediately and directly, preferably to the email address as indicated on the cover letter of the present decision, of the relevant bank account to which the Respondent must pay the amount mentioned under point III.2. above.

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

6. In the event that the amount due in accordance with point III.2. above is not paid by the Respondent within 45 days as from the notification by the Claimant of the relevant bank details to the Respondent, the Respondent shall be restricted on playing in official matches up until the due amount is paid and for the maximum duration of six months (cf. art. 24bis of the Regulations on the Status and Transfer of Players).

7. The restriction mentioned in point III.6. above will be lifted immediately and prior to its complete serving, once the due amount is paid.

8. In the event that the amount due in accordance with point III.2. above is still not paid by the end of the restriction on playing in official matches for six months, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.

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Note related to the publication:

The FIFA administration may publish decisions issued by the Players’ Status Committee or the DRC. Where such decisions contain confidential information, FIFA may decide, at the request of a party within five days of the notification of the motivated decision, to publish an anonymised or a redacted version (cf. article 20 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber).

Note related to the appeal procedure:

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

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

Court of Arbitration for Sport

Avenue de Beaumont 2

1012 Lausanne

Switzerland

Tel: +41 21 613 50 00

Fax: +41 21 613 50 01

e-mail: info@tas-cas.org

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer