FIFA - Decisión disputa Kovtaliuk 14092023

REF. FPSD-11311

Decision of the Dispute Resolution Chamber passed on 14 September 2023 regarding an employment-related dispute concerning the player Mykola Kovtaliuk BY: Jorge Gutiérrez, Costa Rica

CLAIMANT:

Mykola Kovtaliuk, Ukraine

RESPONDENT:

FC Shakhter, Kazakhstan pg. 2

REF. FPSD-11311

I. Facts of the case

1. The parties to the dispute are the Ukrainian player, Mykola Kovtaliuk (hereinafter: the Claimant or the player), and the Kazakhstani club, FC Shakhter (hereinafter: the Respondent or the club).

2. On 10 January 2022, the Claimant and the Respondent concluded an employment contract

(hereinafter: the contract), valid as from the same date until 30 November 2022, with an option to further extend it until 30 November 2023, which however was not exercised.

3. Under the contract, the Respondent undertook to pay to the Claimant KZT 1,500,000 net per month as salary.

4. Clause 9 of the contract reads as follows: “9. CONSIDERATION OF LABOUR DISPUTES 9.1. In case of a dispute between the Parties, it shall be settled through direct negotiations. 9.2. If the dispute between the Parties is not resolved, then it is subject to resolution by the jurisdictional bodies of the KFF (if the [Claimant] is a citizen of the Republic of Kazakhstan) or the jurisdictional bodies of FIFA (if the [Claimant] is a foreign citizen). 9.3. In case of disagreement with the decision of the jurisdictional authorities referred to in p. 9.2, the Parties shall apply for dispute resolution to the Court of Arbitration for Sport in Lausanne (hereinafter referred to as the “CAS”) in accordance with the CAS Code. The competence of CAS to consider the relevant

dispute between the Club and the [Claimant] is determined in accordance with the CAS Code and the legislation of the country where CAS is located. The decision of CAS in a dispute between the Parties is final. 9.4. The Parties undertake to comply with the effective decisions of the jurisdictional bodies of the KFF and FIFA, as well as CAS”.

5. Annexe 2 to the contract states as follows: “Bonus payments

1. In accordance with the provisions of Paragraph 3 of the employment agreement

(hereinafter referred to as the “Agreement”), the Parties agreed on the terms and conditions and procedure of paying bonuses to the [Claimant] for achieved sports results: pg. 3 REF. FPSD-11311 1.1. The [Claimant] who duly fulfills his obligations under the employment agreement is entitled to the following bonus payments in the 2022 season: - for the team’s home win – by decision of the administration of the [Respondent]; - for the team’s away win – by decision of the administration of the [Respondent]; - for the away match ended in a draw – by decision of the administration of the [Respondent].

2. The [Respondent] undertakes to pay the [Claimant] a monthly amount of money from sponsorship funds in proportion to the time worked in the following amount: - 2,860,000 (two million eight hundred sixty thousand) tenge ("net").

2. The [Respondent] establishes for the [Claimant] a lump-sum payment in the amount of 600,000 (six hundred thousand) tenge (“nett”), which is paid by 10.03.2022. 3.The following individual bonus is established for the [Claimant]: 3.1. If the main team of the [Respondent] based on the results of the game season wins the right to participate in the UEFA Conference League, Europa League, and the player takes part in 70 (seventy)% of the matches of the main team of the Club, the

[Respondent] undertakes to pay the [Claimant] a personal bonus in the amount of 2,180,000 (two million one hundred and eighty thousand) tenge (“nett”), which shall be paid by 30 December 2022. 3.2. for 10 (ten) goals scored in the Championship of the Republic of Kazakhstan in the 2022 season – 4,360,000 (four million three hundred and sixty thousand) tenge "nett", which is paid to the [Claimant] by 30.12.2022. 3.3. If the main team of the [Respondent] based on the results of the game season, takes the 1st place in the Championship of the Republic of Kazakhstan among the teams of the Premier League in 2022, and the player takes part in 70 (seventy)% of the matches of the main team of the Club, the [Respondent] undertakes to pay the [Claimant] a personal bonus in the amount of 3,000,000 (three million) tenge (“nett”), which is paid to the [Claimant] by 30 December 2022. The Parties agreed that for the purposes of applying this clause, only matches of the Football Championship of the Republic of Kazakhstan among the Premier League teams are taken into account.

4. The [Respondent] establishes a lump-sum payment to the [Claimant] in the amount of 6,000,0000 (six million) tenge (“nett”), which is paid to the [Claimant] by 10.05.2022.” pg. 4

REF. FPSD-11311

6. By correspondences dated 29 May 2023 and 9 June 2023, the Claimant put the Respondent in default of payment of KZT 4,792,815 as the unpaid portion of his remuneration under the contract. In the second default notice, the player granted the club a deadline of 10 days to cure its breach, to no avail.

II. Proceedings before FIFA

7. On 11 August 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

8. In his claim, the player argued as follows: - The Respondent breached the terms and conditions of the contract by failing to pay the Claimant the final settlement and other arrears upon his dismissal. - The Respondent violated the Labour Code of Kazakhstan by not making the payment within three working days after the termination of the contract. - The Respondent did not provide the Claimant with a copy of the order on termination of the contract or a calculation of the amount of the debt, as required by the contract and the law. - The Claimant tried to resolve the dispute amicably by sending two written requests to the Respondent, but received no response or payment. - The Claimant has the right to seek redress before FIFA based on a clause in the contract that explicitly opts for FIFA jurisdiction in case of any unresolved dispute.

9. The Claimant requested the following relief: “1. To acknowledge the fact of violation by the Respondent of the terms and conditions of the employment agreement in respect of non-payment of the final settlement under the employment agreement upon dismissal of the Claimant.

2. To oblige the Respondent to pay the Claimant the arrears under the employment agreement in the amount of 4,792,815 (four million seven hundred ninety-two thousand eight hundred and fifteen) in the currency of Kazakhstan (tenge).

3. To compel the Respondent to pay the Claimant additionally to the arrears amount 5 % p.a. as of the due dates until the date of effective payment. pg. 5

REF. FPSD-11311

4. To compel the Respondent to additionally pay the Claimant compensation for his expenses for legal support of the application to the FIFA Dispute Resolution Chamber in the amount of 499,040 (four hundred ninety-nine thousand and forty) tenge, which is equivalent to 1,000 (one thousand) Euros.

10. Upon request of the FIFA general secretariat, the player provided the following table as to the breakdown of the amounts sought: Period Amount of Grounds Sum paid Date of 2022 debt (KZT) (KZT) payment January 2 843 478,25 p.3.1. Contract + 978 260, 87 24.02.2022

p.2 Annex No.2 February 3 451 666,66 p.3.1. Contract + 1 187 500,00 18.03.2022 p.2 Annex No.2 Lump-sum 600 000,00 p.2 Annex No.2 payment March 4 360 000,00 p.3.1. Contract + 1 500 000,00 13.04.2022 p.2 Annex No.2 April 4 360 000,00 p.3.1. Contract + 1 500 000,00 05.05.2022 p.2 Annex No.2 Lump-sum payment 6 000 000,00 p.4 Annex No.2 May 4 360 000,00 p.3.1. Contract + 4 729 384,04 19.05.2022 p.2 Annex No.2 June 4 360 000,00 p.3.1. Contract + 1 500 000,00 08.06.2022 p.2 Annex No.22 July 4 360 000,00 p.3.1. Contract + 1 500 000,00 13.07.2022 p.2 Annex No.2 August 4 360 000,00 p.3.1. Contract + 1 500 000,00 17.08.2022 p.2 Annex No.2 2 860 000,00 22.08.2022

2 860 000,00 24.08.2022 September 4 360 000,00 p.3.1. Contract + 1 500 000,00 05.09.2022 p.2 Annex No.2 2 860 000,00 12.09.2022 October 4 360 000,00 p.3.1. Contract + 1 500 000,00 07.10.2022 p.2 Annex No.2 11 440 000,00 28.10.2022 3 000 000,00 28.10.2022 November 1 932 815,20 p.3.1. Contract + 3 000 000,00 04.11.2022 p.2 Annex No.2 1 500 000,00 07.11.2022

TOTAL: 49 707 960,11 44 915 144,91

Debt: 4 792 815, 20

b. Position of the Respondent pg. 6

REF. FPSD-11311

11. In its reply, the Respondent admitted to owe the player KZT 4,790,228.84 as of the date the claim was lodged, however it sustained that on 29 August 2023 it made a payment of KZT 1,000,000 to the player, and therefore it argues that its debt amounts to KZT 3,790,228.84.

12. The club also rejected the player’s claim for legal costs on the grounds of art. 25, par.1 of the Procedural Rules Governing the Football Tribunal.

13. The Respondent filed the following request for relief: “Based on the foregoing, Respondent hereby requests FIFA DRC to make the following

decision:

1. Accept the claim of the Claimant Mykola Kovtalyuk in part.

2. The Respondent, FC Shakhter, is to pay the Claimant, Mr. Mykola Kovtalyuk,

the amount of KZT 3,790,228.84 net as outstanding consideration plus 5% per annum on the specified amount from the date of payment to the date of actual payment.

3. Claimant's further claims are dismissed.”

c. Comments of the Claimant on payments made by the club

14. Upon request of the FIFA general secretariat, the player confirmed receipt of KZT 1,000,000 on 29 August 2023 and stated that the debt towards him amounts to KZT 3,790,228.84. He further insisted that his legal costs be reimbursed by the club per his original statement of claim.

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 Single Judge) analysed whether he was competent to deal with the case at hand. In this respect, he took note that the present matter was presented to FIFA on 11 August 2023 and submitted for decision on 14 September 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 and art. 24 par. 1 lit. a) of the Procedural Rules and observed that in accordance with art. 23 par. 1 in combination with art. 22 par. 1 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 employmentpg. 7

REF. FPSD-11311 related dispute with an international dimension between an Ukrainian 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 11 August 2023, the same 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 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. The competence and the applicable regulations having been established, the Single Judge entered into the merits of the dispute. In this respect, the Single Judge 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, following the confirmation of receipt of KZT 1,000,000 on 29 August 2023 by the Claimant, it stands undisputed that he is owed KZT 3,790,228.84, in line with the submissions of the Respondent – which shall as a

consequence be awarded in line with the principle pacta sunt servanda.

21. In addition, taking into consideration the Claimant’s request as well as the constant practice of the Football Tribunal in this regard, the Single Judge decided to award the Claimant interest over the due amounts. From the calculations provided by the player however, and given the irregular payments made by the club, the Single Judge deemed that it is impossible to reconstruct to which concepts the outstanding balance applies, and thus the calculation of the interest is also not possible to reconstruct entirely. pg. 8

REF. FPSD-11311

22. As such, the Single Judge decided that the Respondent must pay interest of 5% p.a. on the balance due as from one day the natural expiry of the contract (i.e., 1 December 2022) until the date of effective payment. ii. Article 12bis of the Regulations

23. In continuation, the Single Judge referred to art. 12bis par. 2 of the Regulations, which stipulates that any club found to have delayed a due payment for more than 30 days without a prima facie contractual basis may be sanctioned in accordance with art. 12bis par. 4 of the Regulations.

24. To this end, the Single Judge confirmed that the player put the club in default of payment of the amounts sought, which had fallen due more than 30 days before, and granted the club a 10-day deadline to cure such breach of contract.

25. Accordingly, the Single Judge confirmed that the club had delayed a due payment without a prima facia contractual basis. It followed that the criteria enshrined in art. 12bis of the Regulations was met in the case at hand.

26. The Single Judge further established that by virtue of art. 12bis par. 4 of the Regulations he can impose sanctions on the club. On account of the above and bearing in mind that this is the 3rd offense by the club within the last two years, the Single Judge decided to impose

fine of USD 1,000 on the club in accordance with art. 12bis par. 4 lit. c) of the Regulations.

27. In this connection, the Single Judge highlighted that a repeated offence will be considered as an aggravating circumstance and lead to a more severe penalty in accordance with art. 12bis par. 6 of the Regulations. iii. Compliance with monetary decisions

28. 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.

29. 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.

30. 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 pg. 9

REF. FPSD-11311 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.

31. 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.

32. 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. d. Costs

33. 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 Chamber decided that no procedural costs were to be imposed on the parties.

34. 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 – thus, the request of the Claimant in this respect was rejected.

35. Lastly, the Single Judge concluded the deliberations by rejecting any other requests for relief made by any of the parties. pg. 10

REF. FPSD-11311

IV. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Mykola Kovtaliuk, is partially accepted.

2. The Respondent, FC Shakhter, must pay to the Claimant the following amount: - KZT 3,790,228.84 as outstanding remuneration plus 5% interest p.a. as from 1 December 2022 until the date of effective payment.

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. A fine in the amount of USD 1,000 is imposed on the Respondent, which must be paid to FIFA within 30 days of notification of this decision. Such fine must be paid to the following bank account with a clear reference to the case FPSD-11311: UBS Zurich Account number 230-366677.61N (FIFA Players’ Status) Clearing number 230

IBAN: CH12 0023 0230 3666 7761 N

SWIFT: UBSWCHZH80A

8. This decision is rendered without costs.

For the Football Tribunal: Emilio García Silvero Chief Legal & Compliance Officer pg. 11

REF. FPSD-11311

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. 12