FIFA - Decisión disputa Khozin 28082023

REF. FPSD-10745

Decision of the Dispute Resolution Chamber passed on 28 August 2023 regarding an employment-related dispute concerning the player Vladimir Khozin BY: Alejandro Taraborelli (Italy/Argentina)

CLAIMANT:

Vladimir Khozin, Russia

RESPONDENT: Shakther, Kazakstan pg. 2

REF. FPSD-10745

I. Facts of the case

1. On 15 July 2021, the Russian player Vladimir Khozin (hereinafter the Claimant or the Player) and the Kazakhstani club Shakther (hereinafter the Respondent or the Club) concluded an employment agreement (hereinafter the Employment Agreement), valid as from 16 July 2021 until 30 November 2022.

2. In Clause 3 of the Employment Agreement, the Claimant and the Respondent (jointly referred to as the Parties) agreed upon KZT 1,591,500 as a monthly salary.

3. Furthermore, the Parties signed an Appendix No. 2. In this document, the Parties agreed

upon the following:

4. On 16 November 2021, the Respondent provided the Claimant with a “Letter of Guarantee”, stating that the latter is entitled to KZT 1,950,000 as a bonus. pg. 3

REF. FPSD-10745

5. On 22 July 2022, the Parties agreed to mutually terminate the Employment Agreement by signing an Additional Agreement to the Employment Contract (hereinafter the Termination

Agreement).

6. Therein, the Parties stipulated the following:

2. The Parties agree that the Club shall pay to the Employee a compensation for early termination of the Contract amounting to 6,340,000 (six million three hundred forty thousand) tenge "net".

3. The date of termination of employment relations is considered to be July 22, 2022

4. The Parties have agreed that as of the date of termination of the Contract the amount

payable to the Employee excluding the amount specified in clause 2 of the Agreement is 12,110,325 (twelve million one hundred and ten thousand three hundred and twenty five) tenge "net". 5.The amounts stipulated in paragraphs 2 and 4 of the Agreement shall be paid by the Employer in equal shares· by 30.12.2022 in the following order: - 4,612,581 (four million six hundred twelve thousand five hundred and eighty-one) tenge until August 30, 2022; - 4,612,581 (four million six hundred twelve thousand, five hundred and eighty-one) tenge until September 30, 2022; -4,612,581 (four million six hundred twelve thousand five hundred and eighty-one) tenge until October 30, 2022; -4,612,582 (four million six hundred twelve thousand five hundred and eighty-two) tenge until November 30, 2022.

6. The parties have agreed that all possible disputes about the early termination of the Contract, are settled at the time of signing this Agreement, and the Employee undertakes not to make any claims against the Employer in respect of such payments.”

7. It remained undisputed that on 28 October 2022, the Club made a payment of KZT 7,510,000 and on 22 May 2023, a payment of KZT 3,038,816.

8. On 14 April 2023, the Claimant sent a letter to the Respondent, requesting the amount of USD 6,000 within the next 15 days. In its default notice, the Claimant provided for the following break-down: “1. Shakhter Football Club JSC to pay Khozin V.V. the debt in the amount of KZT 10,940,325 pursuant to clauses 2 and 4 of the Supplementary Agreement to Employment Contract No.

48-2021-0 dated July 15, 2021, concluded on July 22, 2022, within ten days (until April 24, 2023).

2. Shakhter Football Club JSC to pay Khozin V.V. cash bonuses in the amount of KZT 1,950,000 within ten days (until April 24, 2022).” pg. 4

REF. FPSD-10745

II. Proceedings before FIFA

9. On 1 July 2023, the Claimant filed the claim at hand before FIFA. A brief summary of the position of the parties is detailed in continuation.

a. Position of the Claimant

10. The requests for relief of the Claimant were the following: “1. To oblige Shakhter Football Club Joint-Stock Company to pay Khozin Vladimir Viacheslavovich the debt in the amount of KZT 9,851,509 for payments provided for in clauses 2 and 4 of the Supplementary Agreement to Employment Contract No. 48-2021O dated July 15, 2021, concluded on July 22, 2022, and cash bonuses for participation in the OLIMPBET Football Championship among teams of the Premier League and the Cup of the Republic of Kazakhstan.

2. To oblige Shakhter Football Club Joint-Stock Company to pay penalties to Khozin Vladimir Viacheslavovich for the salary payment delay provided for in clause 3 of Article 113 of the Labor Code of the Republic of Kazakhstan as of July 01, 2023 in the amount of KZT 1,549,305.34, as well as penalties charged on the debt in the amount of KZT 9,851,509 commencing from 02/07/2023 to the day of actual payment of the debt in the amount of 1.25-fold base rate of the National Bank of the Republic of Kazakhstan on the day of fulfillment of obligations.

3. To apply the sanctions as stipulated in clause 2 (a) of Article 24 of the Regulations on the

Status and Transfers of Players to Shakhter Football Club Joint-Stock Company until the full execution of the Chamber's decision.

4. To oblige Shakhter Football Club Joint-Stock Company to compensate Khozin Vladimir Viacheslavovich for the expenses required to pay the services of a representative and to pay for translation services in the amount of 193,750 RUB in KZT at the exchange rate of the Central Bank of the Republic of Kazakhstan on the day of payment.”

11. The Claimant based his claim on the legal principle pacta sunt servanda.

b. Position of the Respondent

12. In its reply, the Respondent requested to partially accept the claim of the Claimant, accepting the debt of KZT 7,901,509 as unpaid remuneration.

13. As to the requested bonus, the Respondent was of the opinion that by signing of the Termination Agreement, the Claimant revoked his other claims other than those stipulated in the Termination Agreement. pg. 5

REF. FPSD-10745

c. Final comments of the Claimant

14. In his final comments, the Claimant argued the following: “The Bonus was not included in the system of remuneration under the labor contract and was a personal bonus of the Employee confirmed by the Letter of guarantee has the amount and terms of payment included. Thus, the Bonus was not included in the total amount of payments provided in the paragraphs 2 and 4 of the Supplementary Agreement to the labor contract.

Moreover, the Club did not prove that the Bonus was included in the total amount of payments in paragraphs 2 and 4 of the Supplementary Agreement having all the information and accounting documents on the composition of payments to the player under the contract. So, the Club had the opportunity to proof its position with the documents but provided just general wording from the text of the Supplementary Agreement. The Claimant requests to satisfy all the specified claims in total including the Bonus”

III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

15. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to as the Single Judge) analysed whether he was competent to deal with the case at hand.

In this respect, the Single Judge took note that the present matter was presented to FIFA on 1 July 2023 and submitted for decision on 28 August 2023. Taking into account the wording of art. 34 of the March 2023 edition of the Procedural Rules Governing the Football Tribunal (hereinafter the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.

16. Subsequently, the Single Judge referred to art. 2 par. 1 of the Procedural Rules and observed that in accordance with art. 23 par. 1 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (May 2023 edition), he is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a Russian player and a Kazakhstani club.

17. Subsequently, the Single Judge analysed which regulations should be applicable as to the substance of the matter. In this respect, he confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (May 2023 edition), and considering that the present claim was lodged on 1 July 2023, the May 2023 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

b. Burden of proof

18. The Single Judge recalled the basic principle of burden of proof, as stipulated in art. 13 par. 5 of the Procedural Rules, according to which a party claiming a right on the basis of pg. 6

REF. FPSD-10745 an alleged fact shall carry the respective burden of proof. Likewise, the Single Judge stressed the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which he may

consider evidence not filed by the parties, including without limitation the evidence generated by or within the Transfer Matching System (TMS). c. Merits of the dispute

19. His competence and the applicable regulations having been established, the Single Judge entered into the merits of the dispute. In this respect, he started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. However, the Single Judge emphasised that in the following considerations he will refer only to the facts, arguments and documentary evidence, which he considered pertinent for the assessment of the matter at hand.

1. Main legal discussion and considerations

20. The foregoing having been established, the Single Judge moved to the substance of the matter, and took note of the fact that this is a claim of a player against a club for overdue payables. In particular, the Single Judge noted that the Claimant requested:

(i) KZT 9,851,509, corresponding to the amounts in Termination Agreement as well as a bonus payment, (ii) penalties based on national law and (iii) reimbursement of various expenses.

21. The Single Judge equally observed that the claim remained uncontested by the Respondent as to the amount of KZT 7,901,509, yet the latter argued that the bonus was revoked by signing of the Termination Agreement.

22. In this context, the Single Judge acknowledged that it his task was to determine if the Claimant is entitled to the disputed bonus and to the penalties and reimbursement of expenses.

23. Regarding the bonus, the Single Judge concluded that that it shall not be granted as the Termination Agreement superseded any prior documents and finally settled the financial terms between the Parties.

24. Furthermore, concerning any other claims, the Single Judge pointed out that the Claimant failed to submit necessary evidence to establish his entitlement, including providing of the appropriate legal basis.

25. In view of the above, the Single Judge concluded that the acknowledged debt of KZT 7,901,509 shall be granted to Claimant and any other claim shall be rejected.

pg. 7 REF. FPSD-10745 ii. Consequences

26. The Single Judge observed that the financial obligations deemed as outstanding in the present case correspond to KZT 7,901,509.

27. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the Single Judge decided that the Respondent is liable to pay to the Claimant the amounts claimed as outstanding under the contract, in total KZT 7,901,509, as detailed above.

28. In line with the legal principle ne ultra petita, taking into consideration the Claimant’s request, the Single Judge did not grant the Claimant any interest. iii. Compliance with monetary decisions

29. Finally, taking into account the applicable Regulations, the Single Judge referred to art. 24 par. 1 and 2 of the Regulations, which stipulate that, with its decision, the pertinent FIFA deciding body shall also rule on the consequences deriving from the failure of the concerned party to pay the relevant amounts of outstanding remuneration and/or compensation in due time.

30. In this regard, the Single Judge highlighted that, against clubs, the consequence of the failure to pay the relevant amounts in due time shall consist of a ban from registering any new players, either nationally or internationally, up until the due amounts are paid. The overall maximum duration of the registration ban shall be of up to three entire and consecutive registration periods.

31. Therefore, bearing in mind the above, the Single Judge decided that the Respondent must pay the full amount due (including all applicable interest) to the Claimant within 45 days of notification of the decision, failing which, at the request of the Claimant, a ban from registering any new players, either nationally or internationally, for the maximum duration of three entire and consecutive registration periods shall become immediately effective on the Respondent in accordance with art. 24 par. 2, 4, and 7 of the Regulations.

32. The Respondent shall make full payment (including all applicable interest) to the bank

account provided by the Claimant in the Bank Account Registration Form, which is attached to the present decision.

33. The Single Judge recalled that the above-mentioned ban will be lifted immediately and prior to its complete serving upon payment of the due amounts, in accordance with art. 24 par. 8 of the Regulations. pg. 8

REF. FPSD-10745

d. Costs

34. The Single Judge referred to art. 25 par. 1 of the Procedural Rules, according to which “Procedures are free of charge where at least one of the parties is a player, coach, football agent, or match agent”. Accordingly, the Single Judge decided that no procedural costs were to be imposed on the parties.

35. Likewise, and for the sake of completeness, the Single Judge recalled the contents of art. 25 par. 8 of the Procedural Rules and decided that no procedural compensation shall be awarded in these proceedings.

36. Lastly, the Single Judge concluded his deliberations by rejecting any other requests for relief made by any of the parties. pg. 9

REF. FPSD-10745

IV. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Vladimir Khozin, is partially accepted.

2. The Respondent, Shakther, must pay to the Claimant the following amount(s): - KZT 7,901,509 as outstanding remuneration.

3. Any further claims of the Claimant are rejected.

4. Full payment (including all applicable interest) shall be made to the bank account indicated in the enclosed Bank Account Registration Form.

5. Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, if full payment

(including all applicable interest) is not made within 45 days of notification of this decision, the following consequences shall apply:

1. The Respondent shall be banned from registering any new players, either nationally or internationally, up until the due amount is paid. The maximum duration of the ban shall

be of up to three entire and consecutive registration periods.

2. The present matter shall be submitted, upon request, to the FIFA Disciplinary Committee in the event that full payment (including all applicable interest) is still not made by the end of the three entire and consecutive registration periods.

6. The consequences shall only be enforced at the request of the Claimant in accordance with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.

7. This decision is rendered without costs.

For the Football Tribunal: Emilio García Silvero Chief Legal & Compliance Officer pg. 10

REF. FPSD-10745

NOTE RELATED TO THE APPEAL PROCEDURE: According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this decision.

NOTE RELATED TO THE PUBLICATION: FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a party within five days of the notification of the motivated decision, to publish an anonymised or a redacted version (cf. article 17 of the Procedural Rules Governing the Football

Tribunal).

CONTACT INFORMATION

Fédération Internationale de Football Association FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland www.fifa.com | legal.fifa.com | psdfifa@fifa.org | T: +41 (0)43 222 7777 pg. 11