FIFA - Decisión disputa Lamanje 21062023

REF. FPSD-9420

Decision of the Dispute Resolution Chamber passed on 21 June 2023 regarding an employment-related dispute concerning the player Abdel Lamanje BY: Michele Colucci (Italy)

CLAIMANT:

Abdel Lamanje , France Represented by Ludovic Deléchat

RESPONDENT: Shakhter, Kazakhstan pg. 2

REF. FPSD-9420

I. Facts of the case

1. On 25 June 2021, the French player, Abdel Lamanje (hereinafter: Claimant or player) and the Kazakh club, Shakhter (hereinafter: club or Respondent) concluded an employment contract

(hereinafter: contract) valid as from 13 July 2021 until 30 November 2022.

2. According to the contract, the Respondent undertook to pay the Claimant a monthly salary of Kazakhstan Tenge (KZT) 1,800,000 net.

3. On 21 July 2022, the player and the club concluded an agreement, in accordance with which the parties agreed to mutually terminate contract as of 21 July 2022 (hereinafter: termination agreement).

4. According to the termination agreement, the club undertook to pay to the player the following amounts: “2. The parties have agreed that the Club, in accordance with clause 7.6 of the Contract pays the Employee compensation for early termination of the contract is 4 410 000 (four million four hundred and ten thousand) tenge (“net”).

3. Consider July 21, 2022 as the date of termination of employment

4. The Parties agreed that on the date of termination of the Agreement, the amount payable to the Employee, excluding the amount specified in paragraph 2 of the Agreement is 13 380 000

(thirteen million three hundred and eighty thousand) tenge “net”.

5. The amounts specified in paragraph 2 and paragraph 4 of the agreement are paid by the

Employer in equal installments until 30.12.2022.”

5. On 19 December 2022, according to the player, the club acknowledged owing the player the total sum of KZT 11,167,833 net, however, “once again, the Club did not pay anything to the Player until today.”

II. Proceedings before FIFA

6. On 27 February 2023, the player 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

7. According to the player, the club failed to remit the claimed amounts agreed to as per the termination agreement.

8. The requests for relief of the player, were the following: pg. 3

REF. FPSD-9420

(a) The Respondent shall be obliged to pay to the Claimant the amount of Tenge 11,167,833 net as outstanding remuneration, plus interest at a rate of 5% p.a. over said amount, as from the relevant due dates until the effective date of payment. (b) The Respondent shall be obliged to pay to the Claimant the amount of Tenge 283,233 as reimbursement of the flight ticket to travel back to France. (c) The Respondent shall be sanctioned in accordance with article 12bis par. 4 of the FIFA Regulations on the Status and Transfer of Players. b. Position of the club

9. In its reply, the club confirmed that it owed the outstanding remuneration to the player as claimed, but it was not liable to pay the flight ticket expenses to the player.

10. The requests for relief of the club were the following:

(a) Claimant's claim Lamanje Abdel Aziz Ngapout accept in part. (b) FC Shakhtar, is to pay the Claimant, Mr. Lamanje Abdel Aziz Ngapout, the amount of KZT 11,167,833 net as outstanding consideration plus 5% per annum on the said amount from the

date of payment to the date of actual payment. (c) Claimant's further claims are dismissed. pg. 4

REF. FPSD-9420

III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

11. 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 27 February 2023 and submitted for decision on 21 June 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.

12. 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 (March 2022 edition), the Single Judge is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a player from France and a club from

Kazakhstan.

13. 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 (March 2023 edition), and considering that the present claim was lodged on 27 February 2023, the October 2022 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

b. Burden of proof

14. 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

15. His 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. pg. 5

REF. FPSD-9420

1. Main legal discussion and considerations

16. The foregoing having been established, the Single Judge moved to the substance of the matter and took note that the parties strongly dispute the total amount that was outstanding and due to the player as per the termination agreement concluded between the parties on 21 July 2022.

17. In this context, the Single Judge acknowledged that his task was to determine whether the amounts claimed by the player had indeed already fallen due and were to be paid by the club.

18. The Single Judge noted that in its submission, the club did not contest that the outstanding remuneration is due to the player, but it argued that it was not liable to pay the flight ticket expenses as claimed.

19. In this context the Single Judge referred to the provisions of the termination agreement and mentioned that the parties failed to agree to the payment of flight expenses as part of the terms of the said agreement, hence the Single Judge decided to reject this part of the player’s claim.

20. Subsequently, the Single Judge mentioned that in the case at hand the club bore the burden

of proving that it indeed complied with the financial terms of the termination agreement concluded between the parties specifically in relation to the outstanding remuneration as claimed, which it failed to do.

21. Moreover, the Single Judge held that no reasonable justification was presented by the club for not having complied with the terms of the termination agreement.

22. In view of the foregoing, the Single Judge concluded that the club was indeed in arrears of its financial obligations as per the termination agreement and is thus to be held liable for the consequences thereof. ii. Consequences

23. Having stated the above, the Single Judge turned his attention to the question of the consequences of such unjustified breach of the termination agreement committed by the

Respondent.

24. 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 amount of KZT 11,167,833 net. pg. 6

REF. FPSD-9420

25. What is more, based on its well-established jurisprudence as well as taking into account the Claimant’s request, the Single Judge decided to award 5% interest p.a. on the above amounts as from 30 December 2022. iii. Compliance with monetary decisions

26. 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 his 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.

27. 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.

28. 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.

29. 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.

30. 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

31. 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.

32. 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. pg. 7

REF. FPSD-9420

33. Lastly, the Single Judge concluded his deliberations by rejecting any other requests for relief made by any of the parties. pg. 8

REF. FPSD-9420

Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Abdel Lamanje , is partially accepted.

2. The Respondent, Shakhter, must pay to the Claimant the following amount(s): - KZT 11,167,833 net as outstanding remuneration plus 5% interest p.a. as from 30

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. This decision is rendered without costs.

For the Football Tribunal: Emilio García Silvero Chief Legal & Compliance Officer pg. 9

REF. FPSD-9420

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).

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. 10