FIFA - Decisión disputa Rustemovic 26052023

REF. FPSD-7507

Decision of the Dispute Resolution Chamber passed on 26 May 2023 regarding an employment-related dispute concerning the player Edin Rustemovic BY: Frans de Weger (The Netherlands), Chairperson Roy Vermeer (The Netherlands), member Mario Flores Chemor (Mexico), member

CLAIMANT / COUNTER-RESPONDENT:

Edin Rustemovic, Bosnia & Hercegovina Represented by Dupovac Feđa

RESPONDENT / COUNTER-CLAIMANT:

Shakhter, Kazakhstan Represented by SILA International Lawyers

INTERVENING PARTY:

FK Radnik Surdulica, Serbia pg. 2

REF. FPSD-7507

I. Facts of the case

1. On 19 March 2021, the Bosnian player Edin Rustemovic (hereinafter: player) and the Kazakh club, Shakhter (hereinafter: club) concluded an employment contract (hereinafter: contract) valid as from “the moment it is signed” until 30 November 2022.

2. Art. 10.3 of the contract states: “The parties agreed that the date of commencement of employment of the Employee is “___” July 2021”.

3. According to information contained in the Transfer Matching System (TMS), the player was registered with the club on 7 July 2021. Furthermore, the start date of the contractual relationship entered in TMS is 1 July 2021.

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

5. The contract establishes: “7.5. In case of early termination of the Contract at the initiative of the Employee in the absence of guilty actions of the Club, or at the initiative of the Club, but in the presence of guilty actions of the Employee, the Employee is obliged to pay the Club compensation for early termination

of the Contract in the amount of no more than the employee’s monthly salary for 1 (one) months in tenge. This compensation is final and cannot be reduced or increased depending on the further employment of the Employee. 7.6. In the event of early termination of the Contract at the initiative of the Club in the absence of guilty actions of the Employee, or at the initiative of the Employee, but in the presence of guilty actions of the Club, the Club is obliged to pay the Employee compensation for early termination of the Contract in the amount of no more than the employee’s monthly salary for 1 (one) months in tenge.”

6. On 19 March 2021, the parties concluded an “annex no. 2 to the employment contract”

(hereinafter: annex), according to which the club undertook to pay the player an additional monthly amount of KZT 3,820,000.

7. On 18 February 2022, the parties concluded an “additional agreement to employment contract” (hereinafter: agreement), according to which the employment relationship was extended until 30 November 2023. pg. 3

REF. FPSD-7507

8. The agreement establishes:

9. On 16 November 2021, the club issued a “letter of guarantee” to the player, according to which the Respondent guaranteed to pay the bonus related to the “participation in the OLIMPBET Championship of the Republic of Kazakhstan among the Premier League teams and Cup of the Republic of Kazakhstan” in the amount of KZT 1,743,750 until 20 February 2022.

10. On 30 August 2022, the player put the club in default and requested payment of the total amount of KZT 44,017,000, corresponding to salaries and bonuses between December 2021 until August 2022, within 15 days.

11. On 15 September 2022, the player terminated the contract with the club due to outstanding remuneration.

12. On 15 September 2022, the player signed an employment contract with the Serbian club, FK Radnik Surdulica valid as from 15 September 2022 until 30 June 2023, including a monthly salary of EUR 400 (approx. KZT 194,000). pg. 4

REF. FPSD-7507

II. Proceedings before FIFA

13. On 16 September 2022, 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 player

14. In his claim, Edin Rustemovic lodged a claim against the Shakhter in front of FIFA and requested payment of the following monies: - KZT 43,327,750 as outstanding remuneration, plus 5% interest p.a. as of the due dates; - KZT 71,390,999 as compensation for breach of contract (residual value), plus 5% interest p.a. as of 15 September 2022; - KZT 27,720,000 as additional compensation, plus 5% interest p.a. as of 15

September 2022; - “The value of one way air plane ticket plus 5% interest p.a. as from due date”; - EUR 2,500 as legal costs.

15. The player argued that he had just cause to terminate the contract, after having put the club in default before. He held that the default notice remained unanswered.

16. The player pointed out that the following amounts remained outstanding at the time of the termination: pg. 5

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b. Position of the club / counterclaim

17. In its reply, the club rejected the claim and lodged a counterclaim requesting payment of KZT 4,620,000 as compensation for breach of contract, plus 5% interest p.a. as of 16

September 2022.

18. Alternatively, the club requested to award the player the following monies:

• KZT 7,896,142.08 as outstanding remuneration, - KZT 4,620,000 as compensation for breach of contract.

19. The club held that the player had no just cause to terminate the contract on 15 September

2022.

20. In this context, the club argued that the contract started running on 1 July 2021 and not as alleged by the player on 19 March 2021. The club pointed out that the player was still fielded with his previous club on 30 May 2021.

21. The club held that it made total payments of KZT 82,105,535.92 during the contractual relationship as of July 2021, as follows: - KZT 10,160,000 on 29 September 2021; - KZT 1,600,000 on 29 September 2021; - KZT 800,000 on 26 October 2021; - KZT 800,000 on 19 November 2021; - KZT 3,820,000 on 21 February 2022; - KZT 3,820,000 on 23 February 2022; - KZT 958,069.39 on 23 February 2022; - KZT 1,173,913.04 on 18 March 2022; - KZT 1,425,000 on 18 March 2022; - KZT 3,526,153.84 on 29 March 2022; - KZT 1,800,000 on 13 April 2022; - KZT 1,800,000 on 5 May 2022; - KZT 4,071,630.42 on 19 May 2022; - KZT 1,800,000 on 8 June 2022; - KZT 1,800,000 on 13 July 2022;

• KZT 1,800,000 on 15 August 2022; - KZT 2,820,000 on 22 August 2022; - KZT 2,820,000 on 24 August 2022; - KZT 2,820,000 on 5 September 2022; - KZT 1,800,000 on 12 September 2022; - KZT 8,460,000 on 16 September 2022; - KZT 18,000,000 on 16 September 2022; - KZT 3,400,000 on 21 September 2022; - KZT 830,769.23 on 10 October 2022; The club submitted the corresponding receipts. pg. 6

REF. FPSD-7507

22. Taking those payments into account, the club argued that “only” an amount of KZT 7,896,142.08 remained outstanding and since this corresponds to less than two monthly salaries, the player had no just cause to terminate the contract.

23. Subsequently, the club pointed out that there is a valid “liquidated damages clause” inserted in the contract, which is reciprocal and proportionate, and therefore shall be taken into account.

24. Therefore, the club held that it is entitled to compensation for breach of contract of one monthly salary, in accordance with art. 7.5 and 7.6 of the contract.

25. Alternatively, in case the DRC decides that the player had just cause to terminate the contract, the player shall only be entitled to a compensation of one monthly salary in accordance with art. 7.5 and 7.6 of the contract as well as to his outstanding dues.

c. Reply to the counterclaim

26. In his reply to the counterclaim, the player rejected the claim of the club.

27. As to the starting date of the contract, the player rejected the arguments of the club and

pointed out that the club drafted the contracts which point to a starting date of 19 March

2021. Nevertheless, he maintained that it was irrelevant as the claimed amounts correspond to a later date.

28. The player brought forward that the club neglected its financial obligations and that it failed to proof otherwise.

29. In this context, the player pointed out that a substantial part of the payments to the player included in the calculation of the club were remitted after the termination of the contract

(KZT 30,690,769.23, corresponding to more than 6 monthly salaries). The player acknowledged receipt of those monies.

30. Therefore, the argumentation of the club has to be rejected as it shows that far more than two monthly salaries remained outstanding when the player terminate the contract.

31. As to the liquidated damages clause, the player held that it is “abusive” and solely favours the club. He requested to disregard it.

d. Position of the new club

32. The new club has failed to submit its comments as to the matter. pg. 7

REF. FPSD-7507

III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

33. 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 presented to FIFA on 16 September 2022 and submitted for decision on 26 May 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.

34. Subsequently, the members of the Chamber 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 2023 edition), the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a player and a club.

35. Subsequently, 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 (March 2023 edition), and considering that the present claim was lodged on 16 September 2022, the July 2022 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

b. Burden of proof

36. The Chamber 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 Chamber stressed the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which it 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

37. Its competence and the applicable regulations having been established, the Chamber entered into the merits of the dispute. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and 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. pg. 8

REF. FPSD-7507

1. Main legal discussion and considerations

38. The foregoing having been established, the Chamber moved to the substance of the matter, and took note of the fact that the parties strongly dispute that the player had just cause to terminate the contract on 15 September 2022.

39. In this context, the Chamber acknowledged that it its task was to decide if the player indeed had just cause to terminate the contract or not, and to decide on the consequences thereof.

40. The DRC noted that the matter at hand concerns a claim of a player against a club for breach of contract, including a counterclaim of the club against the player.

41. In this framework, the Chamber acknowledged that the Claimant held having terminated the contract with just cause due to outstanding remuneration.

42. On the other hand, the members of the DRC noted that the Respondent argued that less than two monthly salaries were outstanding at the time of the termination and that the player therefore had no just cause to terminate.

43. First of all the Chamber wished to emphasize that the starting date of the contract has to be clarified. It is the DRC’s opinion that even though the wording is contradictory and makes reference to the date of signing, it appears that the parties will was to be contractually bound as of 1 July 2021, when the player was registered.

44. On account of the above, the members of the DRC started to analyse to what amounts the player was entitled to. In this regard, the Chamber established that the player’s monthly salary was KZT 4,620,000, which leads to a total entitlement of KZT 64,680,000 until August 2022 (14x KZT 4,620,000). Further, the club undertook to pay a lump-sum of KZT 22,000,000 on 1 April 2022 as well as an acknowledged performance bonus for 2021 in the amount of KZT 1,743,750. Therefore, the DRC established that the player was entitled to a total amount of KZT 88,423,750 until and including August 2022.

45. In this framework, the Chamber turned its attention the submitted receipts of the club, according to which it remitted KZT 51,414,766.69 before the termination, which leads to

outstanding remuneration of KZT 37,008,983.31.

46. The player claimed not having received his remuneration corresponding to more than two monthly salaries. Furthermore, the player has provided written evidence of having put the Respondent in default on 30 August 2022, i.e. at least 15 days before unilaterally terminating the contract on 15 September 2022. pg. 9

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47. The DRC pointed out that in the case at hand the club bore the burden of proving that it indeed complied with the financial terms of the contract concluded between the parties, which it failed to do so.

48. Thus, the members concluded that the player had a just cause to unilaterally terminate the contract on 15 September 2022, based on art. 14bis of the Regulations.

49. In line with the above, the DRC rejected the club’s counterclaim. ii. Consequences

50. Having stated the above, the members of the Chamber turned their attention to the question of the consequences of such unjustified breach of contract committed by the club.

51. As to the outstanding remuneration, as established above, KZT 37,408,983.31 remained outstanding at the time of the termination. The club remitted KZT 30,690,769.23 after the termination. Therefore the amount of KZT 6,718,214.08 is still outstanding.

52. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the Chamber decided that the club is liable to pay to the player KZT 6,718,214.08.

53. In addition, taking into consideration the Claimant’s request as well as the constant practice of the Chamber in this regard, the latter decided to award the Claimant interest at the rate of 5% p.a. on the outstanding amounts as from 16 September 2022 until the date of

effective payment.

54. Having stated the above, the Chamber turned to the calculation of the amount of compensation payable to the player by the club in the case at stake. In doing so, the Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, 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 player 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.

55. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment contract contained a provision by means of which the parties had beforehand agreed upon an amount of compensation payable by the contractual parties in the event of breach of contract. pg. 10

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56. In this regard, the Chamber took note of the wording of the clauses 7.5 and 7.6 of the contract, which established: “7.5. In case of early termination of the Contract at the initiative of the Employee in the absence of guilty actions of the Club, or at the initiative of the Club, but in the presence of guilty actions of the Employee, the Employee is obliged to pay the Club compensation for early termination of the Contract in the amount of no more than the employee’s monthly salary for 1 (one) months in tenge. This compensation is final and cannot be reduced or increased depending on the further employment of the Employee. 7.6. In the event of early termination of the Contract at the initiative of the Club in the absence of guilty actions of the Employee, or at the initiative of the Employee, but in the

presence of guilty actions of the Club, the Club is obliged to pay the Employee compensation for early termination of the Contract in the amount of no more than the employee’s monthly salary for 1 (one) months in tenge.”

57. After analysing the content of the aforementioned clause, the Chamber concluded by majority that it fulfilled the criteria of reciprocity, not the criteria of proportionality. In line with the longstanding jurisprudence of the Football Tribunal, the majority of the members decided that the clauses could not be taken into account for establishing the amount of compensation payable to the player. In particular, the Chamber noted that there are 15 months left in the contract and the clause grants one monthly salary as compensation.

58. As a consequence, the Chamber determined that the amount of compensation payable by the club to the player had to be assessed in application of the other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that said provision provides for a non-exhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable.

59. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded with the calculation of the monies payable to the player under the terms of the contract from the date of its unilateral termination until its end date. Consequently, the Chamber concluded that the amount of KZT 69,300,000 (i.e. 15x KZT 4,620,000, September 2022 until November 2023) serves as the basis for the determination of the amount of compensation for breach of contract.

60. In continuation, the Chamber verified as to whether the player 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 as well as art. 17 par. 1 lit. ii) of the Regulations, 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. pg. 11

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61. Indeed, the player found employment with FK Radnik Surdulica. In accordance with the pertinent employment contract, the player was entitled to approximately EUR 400 (approx.

KZT 194,000) per month. Therefore, the Chamber concluded that the player mitigated his damages in the total amount of KZT 1,843,000, that is 9.5 times KZT 194,000 (15 September 2022 until June 2023).

62. Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to which a player is entitled to an amount corresponding to three monthly salaries as additional compensation should the termination of the employment contract at stake be due to overdue payables. In the case at hand, the Chamber confirmed that the contract termination took place due to said reason i.e. overdue payables by the club, and therefore decided that the player shall receive additional compensation.

63. In this respect, the DRC decided to award the amount of additional compensation of three monthly salaries, up to the maximum of the residual value, i.e. KZT 1,843,000.

64. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the Chamber decided that the club must pay the amount of KZT 69,300,000 to the player (i.e. KZT 69,300,000 minus KZT 1,843,000 plus KZT 1,843,000), which was to be considered a reasonable and justified amount of compensation for breach of contract in the present matter.

65. Lastly, taking into consideration the player’s request as well as the constant practice of the Chamber in this regard, the latter decided to award the player interest on said

compensation at the rate of 5% p.a. as of 16 September 2022 until the date of effective payment.

66. Moreover, in accordance with the Football Tribunal’s longstanding jurisprudence, the Chamber rejected the player’s request for legal costs. iii. Compliance with monetary decisions

67. Finally, taking into account the applicable Regulations, the Chamber 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.

68. In this regard, the DRC 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. pg. 12

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69. Therefore, bearing in mind the above, the DRC decided that the club must pay the full amount due (including all applicable interest) to the player within 45 days of notification of the decision, failing which, at the request of the player, 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.

70. The club 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.

71. The DRC 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

72. The Chamber 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.

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

74. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any of the parties. pg. 13

REF. FPSD-7507

IV. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant/Counter-Respondent, Edin Rustemovic, is partially accepted.

2. The Respondent/Counter-Claimant, Shakhter, must pay to the Claimant the following amount(s): - Kazakhstan Tenge (KZT) 6,318,214.08 as outstanding remuneration plus 5% interest p.a. as from 16 September 2022 until the date of effective payment; - KZT 69,300,000 as compensation for breach of contract without just cause plus 5% interest p.a. as from 16 September 2022 until the date of effective payment.

3. Any further claims of the Claimant/Counter-Respondent 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. The counterclaim of the Respondent/Counter-Claimant is rejected.

6. 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/Counter-Claimant 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.

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

8. This decision is rendered without costs.

For the Football Tribunal: Emilio García Silvero Chief Legal & Compliance Officer pg. 14

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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. 15