Labour Disputes
Texto da decisão
REF. FPSD-10002
Decision of the
Dispute Resolution Chamber
passed on 24 August 2023
regarding an employment-related dispute concerning
the player Nemanja Andelkovic
BY:
Frans DE WEGER (The Netherlands), Chairperson
Roy VERMEER (The Netherlands), member
Mario FLORES CHEMOR (Mexico), member
CLAIMANT:
Nemanja Andelkovic
Represented by Berlin Sports Law
RESPONDENT:
PFC Kuban, Russia
pg. 2
REF. FPSD-10002
I. Facts of the case
1.
Following previous negotiations between them, on 24 January 2023, the Serbian player
Nemanja Andelkovic (hereinafter: the Claimant or the player) and the Russian club PFC Kuban
(hereinafter: the club or the Respondent) concluded an employment contract (hereinafter: the
contract) valid as from 1 February 2023 until 31 May 2024 with an option to renew the contract.
2.
According to the information contained in the Transfer Matching System (TMS), the player was
born on 26 April 1997 and therefore was 25 years old when he signed the contract.
3.
The contract, which contained 3 Annexes, stipulated the following in favour of the player:
a.
b.
c.
d.
a monthly salary of USD 12,000 net (per Annexe 2);
return tickets between Krasnodar and Belgrade each season (per Annexe 1);
a sign-on fee of USD 100,000 net (per Annexe 2);
a relocation fee of RUB 1,800,000 net, payable in two equal instalments of RUB
900,000 each respectively on 5 April 2023 and 5 July 2023 (per Annexe 1); and
e. a monthly housing allowance of RUB 35,000 net (per Annexe 1).
4.
On 30 January 2023, with flight tickets provided by the club, the player flew to Türkiye, and
allegedly passed his medical examinations, subsequently joining his teammates in the club’s
training camp.
5.
Between 3 and 14 February 2023, the player played in 3 friendly matches for the club.
6.
On 13 February 2023, the Claimant was informed that the general director of the Respondent,
Mr. Andrey Gromov, who signed the contract with him, had left his position. A new general
director, Mr. Sergey Feldman, was allegedly appointed.
7.
On 17 February 2023, the Claimant received a new employment contract from the Respondent,
signed by Mr. Feldman, which contained different terms and conditions from the original
contract, including a list of fines for various violations (hereinafter: the second contract). The
Claimant refused to sign this second contract and insisted on the validity of the original
contract.
8.
On 20 February 2023, the team manager and the senior scout of the Respondent confirmed to
the Claimant via WhatsApp that the original contract was binding and that he would be
registered with the club before the deadline of 22 February 2023.
9.
On 21 February 2023, the Claimant received another version of the contract from the
Respondent, which reduced his monthly salary to USD 8,000 (hereinafter: the third contract).
The Claimant rejected this third contract as well and reiterated his position on the original
contract.
pg. 3
REF. FPSD-10002
10. On 22 February 2023, the agent of the Claimant sent an email to the Respondent, reminding
them of their obligations under the original contract and urging them to register the Claimant
with the club. He also warned them that failing to do so would constitute a breach of contract
without just cause and entail compensation and sanctions.
11. On that same day, the team manager of the Respondent asked the Claimant to return the
equipment provided by the Respondent.
12. On 23 February 2023, the team flew back to Russia without the Claimant and left him behind in
Türkiye without any further instructions. On that same day, the technical director of the
Respondent called the Claimant and told him that they were not interested in his services
anymore.
13. On 25 February 2023, the technical director of the Respondent sent a letter to the Claimant’s
agent, alleging that there was no valid and binding employment contract between them, and
that the Claimant was only on trial with the club. The Respondent also alleged that it had only
signed a draft contract that did not contain essential elements for a valid contract.
14. On 4 March 2023, the Respondent published an official announcement on its website, stating
essentially that the Respondent had a new investor, which made the club change its
management structure. As a result, Mr Andrei Gromov became the General Director of the club.
New players joined the club in the training camp in Türkiye, which were ready to sign expensive
contracts proposed to them by the club. However, in February 2023, the investors were not
ready to fulfil their obligations with the club. Consequently, the Club decided not to sign
contracts with the new players.
15. According to the information contained in the TMS, as well as that provided by the player, after
the contractual relationship with the Respondent ended, the player concluded two new
contracts:
a. A contract with the club Zire FC from Azerbaijan for a total remuneration of USD
21,000, valid from 2 March 2023 until 31 May 2023.
b. A contract with the club Akron FC from Russia, valid from 12 July 2023 until 15
June 2025, with the following remuneration:
i. EUR 20,000 as a signing bonus (approx. USD 22,000).
ii. A salary of EUR 6,500 net (approx. USD 7,150).
iii. Other bonuses or contingent payments.
pg. 4
REF. FPSD-10002
II. Proceedings before FIFA
16. On 21 April 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
17. The Claimant alleges that the Respondent breached their employment contract without just
cause and requests compensation and sanctions.
18. The Claimant submits that he has a valid and binding employment contract with the
Respondent that contains all essential elements for such a contract according to FIFA and Court
of Arbitration for Sport (CAS) jurisprudence. He also submits that he did not undergo a trial
period with the club and that he performed his obligations under the contract until the
Respondent breached it without just cause. He argues that their breach occurred within the
protected period and that the Respondent acted in bad faith by trying to impose different
contracts on him and by leaving him stranded in Türkiye when the team flew back to Russia.
19. The Claimant requests that FIFA declares that he had a valid employment contract with the club
and that the latter terminated it without just cause. He also requests that the club is ordered
to pay him outstanding salary and compensation for breach of contract in the amount of USD
270,117.62 net plus RUR 2,360,000 net plus interest. He further requests that the club is
sanctioned in accordance with art. 12bis and art. 17 of FIFA Regulations on the Status and
Transfer of Players (RSTP).
b. Position of the Respondent
20. On 4 May 2023, in accordance with art. 21 of Procedural Rules Governing the Football Tribunal;
hereinafter: the Procedural Rules), the FIFA general secretariat invited the Respondent to provide
its position in these proceedings as to the claim of the Claimant by no later than 24 May 2023.
21. Having received no correspondence from the Respondent within the cited deadline, the FIFA
general secretariat closed the submission-phase of the proceedings on 30 May 2023 (cf. art. 23
of the Procedural Rules).
22. On 31 May 2023, the Respondent filed a correspondence asking the FIFA general secretariat to
reinstate its deadline to file their position. It is worth noting that the Respondent did not allege
that they were not properly notified of the claim or otherwise not having been able to take note
of the claim before the deadline of 24 May 2023.
23. On 6 June 2023, the FIFA general secretariat informed the Respondent that its petition was
rejected on the grounds that the club had been validly summoned to the proceedings in
accordance with art. 10 par. 1 and 2 of the Procedural Rules.
pg. 5
REF. FPSD-10002
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
24. 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 21 April 2023 and submitted for decision on
24 August 2023. Taking into account the wording of art. 34 of the March 2023 edition of the
Procedural Rules, said rules are applicable to the matter at hand.
25. Subsequently, 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 (May 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 from Serbia and a club from Russia.
26. 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 (May 2023 edition), and considering
that the present claim was lodged on 21 April 2023, the March 2023 edition of said regulations
(hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
27. 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
28. 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.
i. Main legal discussion and considerations
29. The foregoing having been established, the Chamber 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 breach of contract,
pg. 6
REF. FPSD-10002
which stood undisputed due to the late reply of the latter. In doing so, the Chamber confirmed
that per art. 11 par. 4 of the Procedural Rules, submissions and evidence filed outside the
relevant time limit shall be disregarded. In addition, the Chamber stated that the claim had
been properly notified to the Respondent in accordance with the applicable procedural rules.
As such, the Chamber decided that it shall render its decision based on the documentation and
arguments filed by the Claimant only.
30. In continuation, the DRC recalled that according to the Claimant, the club terminated the
contract without just cause. From the documentation on file, the DRC could confirm the parties
unequivocally had signed a valid and binding employment agreement and even started to
execute it, when the club simply decided that it was no longer interested in the player’s services,
so it appears, due to the club’s own changes in its management structure. The Chamber
recalled in this respect the well-established jurisprudence of the Football Tribunal which
dictates that, in order for an employment contract to be considered as valid and binding, apart
from the signature of both the employer and the employee (or an equivalent proof of consent),
it should contain the essentialia negotii of an employment contract, such as the parties to the
contract and their role, the duration of the employment relationship and the remuneration
payable by the employer to the employee – all of which were found in the contract.
31. By the same token, only a breach or misconduct which is of a certain severity justifies the
termination of a contract without prior warning. In other words, only when there are objective
criteria which do not reasonably permit to expect the continuation of the employment
relationship between the parties, a contract may be terminated prematurely. A premature
termination of an employment contract can only be an action of last resort, an ultima ratio. In
the matter at hand, the FIFA DRC considered the contract terminated on 25 February 2023
when the club manifested that no contract existed between the parties, refused to further
comply with its obligations under the same and shortly after the team flew back to Russia
without the Claimant and left him behind in Türkiye on 23 February 2023.
32. Consequently, and given that the DRC already concluded that a valid and binding employment
contract was in place, the DRC decided that no just cause existed in the termination of the
contract by hand of the club.
33. The club therefore shall endure the consequences that follow.
ii. Consequences
34. 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 Respondent.
35. The Chamber observed that the termination of the contract took place within the first month
of its performance, and therefore it deemed appropriate that all dues to the player be factored
as the compensation for breach of contract.
pg. 7
REF. FPSD-10002
36. 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.
37. 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.
38. In this regard, the Chamber established that a compensation clause was included in the
contract at the basis of the matter at stake, namely clause 7.5 of the contract, which reads as
follows: “If the [contract] is terminated by the [Respondent] without just cause, the [Respondent]
is responsible to pay the [Claimant] compensation in accordance with the FIFA Regulations”.
39. As a consequence and following clause 7.5 of the contract, the members of 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.
40. 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, considering
its entirety as explained above. Consequently, the Chamber concluded that the amounts of USD
292,000 net plus RUB 2,360,000 serve as the basis for the determination of the amount of
compensation for breach of contract, as follows:
Sign-on fee
Salaries Feb-23 to May-24
TOTAL I
USD
USD
USD
100,000.00
192,000.00
292,000.00
Allowances (16 months)
Relocation fee
TOTAL II
RUB
RUB
RUB
560,000.00
1,800,000.00
2,360,000.00
41. In continuation, the Chamber verified as to whether the player had signed an employment
contract with another club during the relevant period, 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
pg. 8
REF. FPSD-10002
shall be considered in the calculation of the amount of compensation for breach of contract in
connection with the player’s general obligation to mitigate his damages.
42. Indeed, the player found employment with Zire FC and Akron FC. In accordance with the
pertinent employment contracts, the player was entitled to (a) a total of USD 21,000 from 2
March to 31 May 2023 with Zire FC and (b) a total of USD 97,790 from 12 July 2023 to 31 May
2024 with Akron FC, as follows:
Period with Akron FC
Pro-rata Jul-23 (22 days)
Aug-23 to May-24 (10 months)
Sign-on fee
TOTAL
Amount in USD (converted from EUR)
4,290.00
71,500.00
22,000.00
97,790.00
43. Therefore, the Chamber concluded that the player mitigated his damages in the total amount
of USD 118,790 (i.e., USD 21,000 plus USD 97,790). The Chamber clarified in this respect that
the mitigation only accounted for the overlapping period of the newly established contracts
and the original, prematurely terminated contract.
44. 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 did not
take place due to said reason i.e., overdue payables by the club, and therefore decided that the
player shall not receive additional compensation.
45. Consequently, on account of all the above-mentioned considerations and the specificities of
the case at hand, the Chamber decided that the club must pay the amount of USD 173,210 plus
RUB 2,360,000 to the player (i.e., USD 292,000 minus USD 118,790 plus RUB 2,360,000), which
was to be considered a reasonable and justified amount of compensation for breach of contract
in the present matter. The amount shall be paid net of taxes, as determined in the contract.
46. Lastly, taking into consideration the player’s request as well as the recently established 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 date of termination of the contract until the date of
effective payment.
iii. Sporting sanctions
47. In continuation, the Chamber recalled that under art. 17 par. 4 of the Regulations, in addition
to the obligation to pay compensation, sporting sanctions shall be imposed on any club found
to be in breach of contract or found to be inducing a breach of contract during the protected
period.
pg. 9
REF. FPSD-10002
48. As to the protected period, this is defined in the Regulations as “a period of three entire seasons
or three years, whichever comes first, following the entry into force of a contract, where such contract
is concluded prior to the 28th birthday of the professional, or two entire seasons or two years,
whichever comes first, following the entry into force of a contract, where such contract is concluded
after the 28th birthday of the professional”.
49. In the present case, the player was 25 years old when he signed the employment agreement,
which took place on 24 January 2023. As such, the Chamber confirmed that since the
termination of the contract occurred on 25 February 2023, it took place within the protected
period.
50. At the same time, the DRC recalled that the club terminated the contract without just cause. As
such, and by virtue of art. 17 par. 4 of the Regulations, the Chamber decided that the
Respondent shall be banned from registering any new players, either nationally or
internationally, for the two next entire and consecutive registration periods following the
notification of the present decision. The Chamber further remarked that such sanction was
merited in the present matter due to the blatant breach of the club, which took place in the
very early stages of the valid and binding contract, and even more grievous since, when the
club decided that it was not interested in the player, it pressured him into signing a new contract
with worse financial conditions than the originally concluded one and, when the player refused,
on 23 February 2023, he was abandoned in Türkiye after the training camp. On that same day,
after the player contacted the Team Manger asking for an explanation and further instructions,
the technical director of the Respondent called the Claimant and told him that the Respondent
was not interested in his services anymore. The DRC was of the unanimous opinion that such
disregard and neglect of a club towards its players has no place in professional football and
shall be penalised accordingly. On this note, the DRC remarked that the wording of the
Regulations allows it a significant degree of discretion to apply sporting sanctions on every case
where the conditions of art. 17 par. 4 of the Regulations are met , that is, even if the Respondent
is not deemed as a repeated offender, which is only a factor taken into account by the DRC
when deciding whether to impose sporting sanctions on a club – a faculty the Chamber is
prepared to use given the serious circumstances of the matter at hand.
51. Indeed, the DRC wished to underline that, as confirmed by the CAS on various occasions (e.g.
CAS 2014/A/3754 and CAS 2017/A/5056, 5069), the DRC’s policy to not impose sporting
sanctions in every single case where it has the power to do so, does not mean that it cannot
impose them in other situations where the prerequisites of art. 17 par. 4 are fulfilled and the
circumstances so warrant, such as in casu. Art. 17 par. 4 is sufficiently clear to fully respect the
principles of legality and predictability, which require that the connection between the
incriminated behaviour and the sanction must be clearly and previously defined by law. Put
differently, players and clubs must be aware – and are indeed put in a position to be aware –
that to breach a contract within the protected period may lead to sporting sanctions being
imposed by the DRC, especially when the relevant breach is so blatant and unjustified as in the
matter at hand.
pg. 10
REF. FPSD-10002
52. For the sake of completeness, the Chamber recalled that in accordance with article 24 par. 3 lit.
a) of the Regulations, the consequences for failure to pay relevant amounts in due time may be
excluded where the Football Tribunal has imposed a sporting sanction based on article 17 in
the same case. Consequently, the Chamber confirmed that the consequences for failure to pay
relevant amounts in due time envisaged by art. 24 of the Regulations were excluded in the
present matter, and that should the Respondent fail to timely comply with this decision, it
would be for the FIFA Disciplinary Committee to adopt the necessary measures in accordance
with the FIFA Disciplinary Code.
d. Costs
53. 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.
54. 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.
55. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
pg. 11
REF. FPSD-10002
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Nemanja Andelkovic, is partially accepted.
2.
The Respondent, PFC Kuban, must pay to the Claimant USD 173,210 net plus RUB 2,360,000
net as compensation for breach of contract without just cause plus 5% interest p.a. as
from 25 February 2023 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.
The Respondent shall be banned from registering any new players, either nationally or
internationally, for the two next entire and consecutive registration periods following the
notification of the present decision.
6.
If full payment (including all applicable interest) is not made within 30 days of notification
of this decision, the present matter shall be submitted, upon request of the Claimant, to
the FIFA Disciplinary Committee
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 12
REF. FPSD-10002
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 | [email protected] | T: +41 (0)43 222 7777
pg. 13