Labour Disputes
Texto da decisão
REF FPSD-6510
Decision of the
Dispute Resolution Chamber
passed on 1 February 2023
regarding an employment-related dispute concerning the player Erik
Botheim
COMPOSITION:
Frans de Weger (the Netherlands), Chairperson
Roy Vermeer (the Netherlands), member
José Luis Andrade (Portugal), member
CLAIMANT 1 / RESPONDENT 2:
Erik Botheim, Norway
Represented by Centrefield LLP
CLAIMANT 2 / RESPONDENT 1:
FC Krasnodar, Russia
Represented by SILA International Lawyers
INTERVENING PARTY:
SALERNITANA 1919 S.R.L.
Represented by Eduardo Chiacchio
REF FPSD-6510
I. Facts of the case
1.
On 22 December 2021, the Norwegian player Erik Botheim (hereinafter: the player) and the
Russian club FC Krasnodar (hereinafter: the club) concluded an employment contract
(hereinafter: the contract), valid as from 1 January 2022 until 30 June 2025.
2.
Pursuant to article 4.1 of the contract, the player was entitled to the following monthly
salary:
“The monthly salary, excluding incentives payments, bonuses and awards, in amount of 73,530
(seventy three thousand five hundred thirty) Euro (62,500 Euro net) is to be paid to the Footballer
and is paid in rubles at the exchange rate determined by the Central Bank of the RF at the latest
date of the payable month.”
3.
In accordance with article 9 of the contract, the club, inter alia, undertook to pay to the
player the following sign-on bonus:
“After signing of the present employment contract, the club shall pay to the footballer a sign-on
bonus in amount of 1,176,471 (one million one hundred seventy six thousand four hundred
seventy one) Euro (1 000 000 Euro net). The payment shall be made in Russian rubles at the
exchange rate established by the Central Bank of the RF on the date of payment according to
the following schedule:
- 588,236 (five hundred eighty-eight thousand two hundred thirty six) euro (500 000
euro net) no later than 10 March 2022;
- 235,295 (two hundred thirty-five thousand two hundred ninety five) euro (200 000
euro net no later than 10 October 2022;
- 352,940 (three hundred fifty two thousand nine hundred forty) euro (300 000 euro
net) no later than 10 February 2022.”
4.
On 24 February 2022, Russia invaded Ukraine.
5.
On 2 March 2022, a meeting took place between the player as part of the group of foreign
nationals employed by the club and the Technical Director of the club, Alexandr Tolstikov,
and Commercial Director of the club, Aram Fundukyan.
6.
During this meeting the club allegedly acknowledged “the impossibility of the Foreign
Nationals’ position and agreed that they had the club’s consent to leave Russia as soon as they
were able and they would continue to be paid in accordance with their respective contracts, until
such time as they could feasibly return to Russia”.
7.
Following the aforesaid meeting, the club’s team manager proceeded to make
arrangements for the player and other foreign nationals to travel out of Russia.
REF FPSD-6510
8.
Between 2 March 2022 and 3 March 2022, a WhatsApp communication between various
foreign players and the manager of the club took place, which related to the travel
arrangements (e.g., PCR test, hotel) in order for the foreign players to leave Russia.
9.
On 3 March 2022, the player departed from Krasnodar, Russia.
10. On the same date, the player received a correspondence from the club to conclude an
additional agreement (hereinafter “the suspension offer”) , which – according to the player –
did not reflect the discussions which were held in the meeting of 2 March 2022, however it
“proposed the suspension of the parties’ respective obligations under the Playing Contract –
including the Respondent’s obligation to pay salary and bonuses to the Player – during the
Player’s absence from Russia”.
11. On 4 March 2022, the player instructed his intermediary, Jim Solbakken, to telephonically
contact the club with the instruction to reject the suspension offer.
12. On 8 March 2022, the player sent a notice to the club confirming his rejection of the terms
of the suspension offer and stated that it was confirmed by the club that it would continue
to pay him all of his remuneration pursuant to his contract. In the same letter, the player
informed the club that it was still required to make payment of the following amounts as
per the contract:
-
the salary instalment of February 2022; and
the first instalment of the sign-on bonus of EUR 500,000 net
13. On 31 March 2022, the player sent a notice of default to the club, requesting payment of
all outstanding amounts up until date thereof.
14. On 5 April 2022, in reply to the player’s aforesaid correspondence, the club informed the
player of the following via an email:
1.
“Firstly, we would like to draw your attention to the fact that it was the player’s personal decision
to leave Russia and FC “Krasnodar’s” site. The player informed the club about that in the
beginning of March 2022. The club did not object to the player’s decision of leaving Russia;
2.
Secondly, in regard to performance of financial obligations, we would like to state that the
payments to the player on behalf of the club were suspended due to the fact that the player left
the club’s site and the country and thus he stopped performing his employment duties, which
he has to perform according to the employment agreement, which was concluded between him
and FC “Krasnodar”;
3.
Thirdly, we would like to say that we respect the players decision, however, in light of the current
situation we also tend to protect interests of the club, therefore we kindly ask you to act in good
REF FPSD-6510
faith principle. We emphasize the fact that we are ready to consider options with a loan or a
definitive transfer to another club and we are open for negotiations;
4.
Lastly, we would like to remind you that the player has a right to suspend his employment
agreement with the club and be transferred to another team in accordance with the following:
Annex 7 FIFA RSTP (edition March 2022).”
15. On 6 April 2022, the player replied to the club’s email, mentioning, inter alia, the following:
-
-
-
“The Player (along with the Foreign Nationals) had expressed a desire to leave Russia as they felt
their presence there had become untenable given the political situation and the Respondent, via
its Technical and Commercial Directors, had fully supported this; 44.2. The Respondent had
given the Foreign Nationals its express assurance that they would continue to be paid under
their employment contracts in full, notwithstanding their departure from Russia and the Foreign
Nationals had acted in reliance on such assurance by leaving Russia;
Annex 7 of the FIFA Regulations provided the parties with the option to mutually agree a
suspension of the Playing Contract but the Player did not agree to this in the circumstances as
he would lose out financially as a result, so he elected to keep the Playing Contract in force; and
The Respondent was required to make payment of all past and future sums due under the
Playing Contract and in the event that it failed to do so, the Player would enforce Article 12bis
and/or 14bis of the FIFA Regulations.”
16. On 7 April 2022, the club replied and reiterated its position as per its email of 5 April 2022.
17. On 20 April 2022, the player sent a further letter to the club to request payment of the
outstanding amounts and again highlighted his rights under articles 12bis and 14bis of the
FIFA Regulations.
18. On 26 April 2022, the player sent a final letter to the club, requesting a payment of the
outstanding sums by 11 May 2022, “failing which the player would be entitled to terminate the
contract, given that the four missed salary payments amounted to at least two months’ salary
(without including the Sign on Bonus instalment of €500,000 which was equivalent to eight
months’ salary and was also significantly overdue”.
19. On 6 May 2022, the club sent a further correspondence to the player, stipulating the
following:
“We do not accept the player’s statements on the fact that the FC “Krasnodar” breaches the
financial obligations of the employment agreement due to the following reasons:
- First of all, we would like to direct your attention to the fact that it was the player’s decision
to abandon the club’s locations and Russia. He informed the club about that in the beginning
of March 2022. The club did not object to the player’s decision to leave Russia;
REF FPSD-6510
- Also, we would like to state that, the salary payments to the player are suspended due to the
fact that he left the club’s locations and the country by his own will and initiative, by doing so
he stopped performing his labor duties according to the employment agreement signed by
the player and FC “Krasnodar”;
- Until the moment when the player left the club’s locations and the country, he was duly
performing all his duties according to the contract. During those times FC “Krasnodar” was
fully executing all its financial obligations in accordance with the employment agreement;
- Moreover, the player did not exploit the right to suspend his contract, which was given to the
player according to the norms expressed in Annex 7 FIFA RSTP (edition March 2022), thus he
was not transferred to any other club and remained under the obligations of the employment
agreement with FC “Krasnodar”. Unfortunately, the player is defaulting on complying with his
duties according to the contract;
- Furthermore, we heard several times from the player’s representatives that he would not play
anymore for the club no matter what the circumstances, thus actually withdrawing from the
obligations undertaken in the employment agreement signed with FC “Krasnodar”.
20. On 17 May 2022, the player sent a termination notice to the club.
21. On 26 May 2022, the player received a payment from the club, allegedly unable to
determine what it relates to. It should be noted that the player in his witness statement
mentioned the following, “I did, however, receive a random payment of RUB 2,80,007
(approximately €39,059.91) from Krasnodar on 26 May 2022, after I had terminated the Playing
Contract. I have not received any correspondence from Krasnodar about this payment but it is
more or less the amount that I am owed for the second half of my salary for February
2022(€25,540), albeit it is difficult to be sure about this because the payment was in Rubles and
the exchange rate has fluctuated enormously due to the events in Russia and Ukraine”.
22. On 3 August 2022, in reference to the meeting held on 2 March 2022, the club obtained as
witness statement from another foreign player, Kaio Fernando da Silva Pantaleao, inter alia,
mentioning “that the club provided an opportunity to the players which were concerned about
their safety or unsure about their willingness to stay in Russia for the time being, with an
opportunity to suspend their contracts”.
23. On 4 July 2022 the player concluded a contract with the Italian club Salernitana 1919 S.R.L.
(hereinafter: Salernitana) valid from 4 July 2022 to 30 June 2026, entitling the player to the
following remuneration:
-
EUR 5,300,000 as salary for the above period;
EUR 1,310,000 as additional payments payable in 2 instalments in July 2022 and February
2023.
REF FPSD-6510
II. Proceedings before FIFA
24. On 24 June 2022, the player filed a claim against the club before FIFA.
25. On 1 July 2022, the claim was sent to the club by FIFA, however due to a technical error the
said claim was not delivered to the club.
26. On 5 July 2022, the club lodged a claim against the player before FIFA.
27. On 22 July 2022, the player and club were informed by FIFA that as the club submitted a
statement of claim which is related to the claim of the player, the proceedings shall
accordingly be consolidated.
28. On 26 July 2022, the entire case file was provided to Salernitana and its position to the
proceedings was requested.
29. On 2 August 2022, Salernitana requested an extension of the deadline, which was granted
until 25 August 2022.
30. On 5 August 2022, the club requested an extension of the deadline, which was granted until
25 August 2022.
31. On 8 August 2022, the player requested an extension of the deadline, which was granted
until 25 August 2022.
32. On 7 October 2022, the submission phase of the procedure was closed by FIFA, in
accordance with which the parties were informed that Salernitana failed to provide its
position within the given deadline.
33. On the same date, Salernitana alleged that its submission was submitted within the given
deadline, by providing an alleged copy of the said correspondence, however an internal
check with FIFA IT was conducted and such a submission was never received on the given
deadline.
34. A brief summary of the position of the parties is detailed in continuation.
a. Position of the player
35. According to the player, due to the exceptional situation deriving from Russia’s invasion of
Ukraine on 24 February 2022, he as a foreign national, “no longer felt able to continue living
and working in Russia for reasons of personal safety and moral conviction”, hence he
requested the club’s permission to immediately leave Russia.
REF FPSD-6510
36. According to the player, there is no basis on which the club was entitled to:
i)
ii)
cease making salary payments to him; or
withhold the sign-on bonus and he is therefore entitled to payment of the arrears in full.
37. The player argued that he terminated the contract lawfully with just cause as a
consequence of:
i)
ii)
the club’s various and fundamental breaches of the same; and
the impossibility of him returning to Russia in the current political climate and he is
therefore entitled to compensation for the remuneration he has lost.
38. Furthermore, the player indicated that the club “has not objected to the termination of the
contract in the period of over six weeks since the termination letter was served and therefore it
must be deemed to have accepted the same, neither did it request or suggest that the player
should return to Russia to perform services under the contract”.
39. In regard to the suspension offer, the player expressly rejected this is and mentioned that
in this regard the contract can only be amended “by written agreement of the parties” in
accordance with article 11.3 thereof. Clearly no such written agreement exists in the
present circumstances and therefore, as the Respondent is seemingly aware, it has no right
to withhold payments to the player based on any mutual agreement with him.
40. The requests for relief of the player, were that the club pay him:
(a) EUR 650,540 as outstanding remuneration, comprised of:
-
EUR 25,540 in respect of the second instalment of salary for February 2022
EUR 62,500 in respect of salary for March 2022
EUR 62,500 in respect of salary for April 2022
EUR 500,000 in respect of the first instalment of the signing on bonus
(b) EUR 2,875,000 as compensation for the financial losses suffered by him as a consequence
of the early termination of the contract, corresponding to:
-
EUR 125,000 in respect of salary payable to the player under Article 4.1 for the months of
May and June 2022;
EUR 750,000 in respect of salary payable to the player under Article 4.1 for the period from
1 July 2022 to 30 June 2023;
EUR 750,000 in respect of salary payable to the player under Article 4.1 for the period from
1 July 2023 to 30 June 2024;
EUR 750,000 in respect of salary payable to the player under Article 4.1 for the period from
1 July 2024 to 30 June 2025; and
REF FPSD-6510
-
EUR 500,000 in respect of the second and third instalments of the sign-on bonus due in
accordance with Article 9.1.
41. Additionally, the player requested the club to pay the procedural costs in relation to the
proceedings and a contribution towards the player’s costs and expenses.
42. Moreover, the player claims interest on the sums claimed above at the rate of 5% per
annum.
b. Position of the club
43. The Respondent in its submission mentioned the following:
(a) The contract was effectively suspended by mutual consent of the parties.
“The fact that the Contract was suspended by means of a tacit verbal agreement between the
parties is corroborated by the following:
- The statements provided by the Club’s Commercial Director;
- The behavior of other foreign players of the Club, who did not claim any payments from
the Club for suspension period due to the suspension of their contracts;
- The Claimant’s actions implicitly confirming suspension of the Contract;
- The Club’s good faith conduct deriving from the justified reliance on the suspension of the
Contract.”
(b) The Player did not have just cause to terminate the Contract, hence the Club is not
obliged to pay salaries to the Player within suspension period
“Given that the Club and Player reached a valid and enforceable verbal agreement regarding the
suspension of the Contract and all obligations arising thereof, it is clear that (i) none of the
amounts mentioned in the Player’s notices fell due and (ii) the Player shall be estopped from his
blatant bad faith attempts to take advantage of a force majeure situation and claim
performance of obligations from the Club without performing his own obligations in line with
the principles of venire contra factum proprium and exceptio non adimpleti contractus.”
“Given the above, none of the payments under the Contract fell due as the Contract was
effectively suspended and all obligations stipulated therein were paused. At the same time,
the Player was clearly acting in bad faith while breaching the Contract himself, thus he
should be estopped from claiming any payments. Consequently, the Player did not have just
cause to terminate the Contract.”
(c) The consequences of the Player’s termination of the Contract without just cause
REF FPSD-6510
“The Player terminated the Contract without just cause, in breach of numerous legal principles.
Therefore, the objective criteria mentioned in Article 17 par. 1 FIFA RSTP shall be considered
while assessing the aforementioned contractual provision.
Therefore, as it is evident from said contractual provision and in line with Article 17 par. 1
subpar. i of the FIFA RSTP, the Player is obliged to pay to the Club the compensation for
termination of the Contract without just cause in the amount of EUR 30,000,000 (thirty million)
net.”
44. The requests for relief of the club, were the following:
(a) its claim is accepted.
(b) the player to pay to the club the amount of EUR 30,000,000 net as compensation for
termination of contract without just cause plus 5% interest per annum as from 18 May 2022
until the date of the effective payment.
c. Player’s reply to the claim of the club
45. The player rejected the claim of the club in its entirety, for the reasons set out in his
statement of claim and the fact that “he terminated the contract lawfully and with just cause
in accordance with Article 14bis and/or Article 14 of the Regulations, as such, no compensation
is payable to the Respondent by the Claimant as claimed, or at all”.
46. Accordingly, the player held that:
-
-
the club’s claim is unfounded and should be dismissed given that he terminated the
contract with just cause and therefore no compensation whatsoever is due from the
player to the club; and
his claim should be held as admissible and well-founded, and compensation should
be awarded to the player and sporting sanctions imposed on the club.
d. Club’s reply to the claim of the player
47. According to the club, the player ” was acting in bad faith and his main goal was to receive
money without having to actually work at any football club and that the club is actually the party
which suffered losses due to the unlawful termination of the contract by the player without just
cause”.
48. Consequently, the player’s claim shall be rejected, whereas the club’s claim shall be
accepted. The player stated that “[e]ven in the unlikely case that FIFA DRC decides that the
Player has just cause to terminate the Contract (quod non), no compensation shall be awarded
to the Player due to his blatant bad faith behavior, or, if it is awarded, the compensation shall
be reduced by the value of the player’s new contract for the corresponding period”.
REF FPSD-6510
49. In support of its allegations, the club submitted a statement by another foreign player
which stated that the club provided an opportunity to the foreign players which were
concerned about their safety or unsure about their willingness to stay in Russia for the time
being, with an opportunity to suspend their contracts.
50. The club requested that the:
-
“Claim of the Claimant 1 / Respondent 2, Mr Erik Botheim, is rejected.
Claim of the Respondent 1 / Claimant 2, Football Club Krasnodar is accepted.
Claimant 1 / Respondent 2, Mr Erik Botheim, has to pay to the Respondent 1 / Claimant 2,
Football Club Krasnodar, the amount of EUR 30,000,000 net as compensation for
termination of contract without just cause plus 5% interest p.a. as from 18 May 2022 until the
date of the effective payment.”
e. Position of the Intervening Party
51. Salernitana submitted its reply outside of the FIFA given deadline.
REF FPSD-6510
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
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 24 June 2022 and submitted
for decision on 1 February 2023. Taking into account the wording of art. 31 and 34 of the
October 2022 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.
2.
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 October 2022 edition), the DRC is
competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a Norwegian player and a Russian club.
3.
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 (October 2022 edition) and
considering that the present claim was lodged on 24 June 2022, the July 2022 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
4.
Lastly, the Chamber decided that the submission of Salernitana was not admissible and in
accordance with art. 21 par. 1 of the Procedural Rules it was not considered in the matter
at hand.
b. Burden of proof
5.
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
6.
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
REF FPSD-6510
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
7.
The foregoing having been established, the Chamber moved to the substance of the
matter, and noted that the case at hand pertains to a claim for outstanding remuneration
and compensation for breach of contract of the player against the club and a claim of the
club for compensation for breach of contract against the player following the departure of
the player from the club on 3 March 2022.
8.
In this context, the Chamber took note that the player in his claim argued that he
terminated the contract with the club on 17 May 2022 with just cause due to, inter alia, the
(i) various and fundamental breaches of the club; and (ii) impossibility to return to Russia
in light of the political climate.
9.
The Chamber further noted that the club on its account argued that the player did not have
just cause to terminate the contract on 17 May 2022 as the parties reached a valid and
enforceable verbal agreement regarding the suspension of the contract and all obligations
arising thereof, including its payments obligation under the contract.
10. Based on the foregoing considerations as well as the documentation on file, the members
of the Chamber deemed it appropriate to recall the following circumstances:
-
on 2 March 2022, a meeting took place during which the club allegedly acknowledged “the
impossibility of the Foreign Nationals’ position and agreed that they had the club’s consent to
leave Russia as soon as they were able and they would continue to be paid in accordance with
their respective contracts, until such time as they could feasibly return to Russia”.
-
on 3 March 2022, following the departure of the player upon his request which was
implicitly concurred by the club, the parties failed to reach a mutual agreement regarding
the status of the employment relationship or the rights and obligations pertaining to the
contract.
-
attempts were made by the club to reach an agreement with the player, additionally
referring the player to his rights as per Annexe 7 of the Regulations.
-
on 10 March 2022, to address the exceptional situation deriving from the war in Ukraine,
FIFA issued temporary rules a per the Regulations, in which context art. 3 par. 1 of Annexe
7 of the Regulations stipulates the following:
“Notwithstanding the provisions of these regulations and unless otherwise agreed between the
parties, a contract of an international dimension between a player or a coach and a club
REF FPSD-6510
affiliated to the FUR can be unilaterally suspended until 30 June 2023 by the player or the coach,
provided that a mutual agreement with the club could not be reached before or on 30 June
2022.”
-
the player explicitly stated to the club that he did not wish to make use of the suspension
rights as per Annexe 7 of the Regulations.
11. The members of the Chamber started to analyse the aforementioned circumstances and
firstly made reference to the outcome of the meeting, which was held on 2 March 2022 and
the position of the player as per his claim, i.e., that the club would continue to pay him in
accordance with his contract after he would depart, until such time as he could feasibly
return to Russia.
12. In continuation, the members of the Chamber turned their attention to the alleged
outstanding remuneration the player is claiming for the period between February and April
2022 and noted that such allegations were denied by the club. In this context, the DRC
noted that according to the club, the player by failing to return to the club to provide his
playing services, renounced his contractual rights i.e., entitlement to remuneration.
13. The members of the Chamber remarked that, in general and as a point of departure, a
party who is not in compliance with his contractual obligations is not in a position to
demand from the counterparty due compliance with the contract, before first remedying
their own default. In this regard, the DRC wishes to note that obligations under an
employment contract are reciprocal in that they are binding on the parties only so long as
both sides continue to comply with them. A major violation by one side will release the
other side from all further duty to abide by that obligation.
14. At the same time, the members of the Chamber were eager to emphasise that following
correspondence from the player in early March 2022, the club only made its position clear
to the player on 5 April 2022, i.e., that it had reached a verbal agreement with the player
regarding the suspension of the contract and all obligations arising thereof, including
suspension of its payment obligations.
15. Following the aforesaid, the members of the Chamber considered the respective positions
of the parties regarding an apparent understanding and or an agreement reached in
relation to the status of the contract and was of the opinion that neither party provided
substantiating evidence on the basis of which a mutual agreement was reached regarding
the status of the contract following the departure of the player from Russia on 3 March
2022.
16. Moreover, the Chamber highlighted that on analysis of the documentation on file it seems
that the player failed to show any willingness to find an amicable solution to the matter
and could have taken more efforts to find a solution, which was no doubt also partly
motivated by his wish not to return to Russia following the start of the war. Indeed, he
REF FPSD-6510
made it clear that he “no longer felt able to continue living and working in Russia”. At the same
time, the club on its account, though consistent in its position that the player by not
providing his playing services renounced his contractual rights, failed to take a clear
position to immediately call the player back, specifically when it became evident for the
club that the player had a different understanding of the arrangements made during the
meeting of 2 March regarding the status of the contract and that the player expected to
receive remuneration during his absence. The DRC agrees with the club that it does not
make sense to order the player to come back to training when he is not paid during the
suspension. However, once it became clear to the club that the player had a different
understanding of the arrangements made on 2 March and that he expected his salary, it
makes sense to the DRC that the club would then also have explicitly requested the player
to come back to Russia as from that moment, which the club failed to do. In fact, in none
of the club’s letters that were sent to the player, the club explicitly requested the player’s
return. What is more, already in its first letter sent to the player on 5 April 2022, the club
even emphasised that it was ready to consider options with a loan or a definitive transfer
to another club and that it was open for negotiations.
17. In view of the above, the Chamber wished to emphasize that the actions of both parties led
the members of the Chamber to conclude that from the player’s behaviour, it can be
determined that he was not interested in resuming his duties with the club; likewise, the
club was also not genuinely interested in the player’s services after he left Russia. As such,
the Chamber is of the opinion that the parties therefore mutually departed from the
contract, ultimately as from 5 April 2022, as it was from that date that the club informed
the player that it had reached a verbal agreement with him regarding the suspension of
the contract and all obligations arising thereof, including its payment suspension under the
contract.
18. Following the above line of reasoning, the members of the Chamber concluded that, since
none of the parties was sincerely interested in continuing the employment relationship, no
compensation for breach of contract to any of the parties should be awarded except for
any outstanding amounts due to the player prior to 5 April 2022.
19. As such, both the request of the player as well as the request of club to be awarded
compensation for breach of contract, had to be rejected.
20. Moreover, the Chamber wished to emphasize that since the player left the club on 3 March
2022, he is not entitled to the salary of March 2022.
ii. Consequences
21. Having stated the above, the members of the Chamber turned their attention to the
question of the consequences following the mutual departure of the parties from the
contract.
REF FPSD-6510
22. In this context, the Chamber observed that the outstanding amount due to the player by 5
April 2022 concerned the sign-on fee, more specifically the first instalment in the amount
of EUR 500,000 which was due and payable by no later than 10 March 2022.
23. As a consequence, and as the payment was conditioned to the signature of the player which
condition was clearly fulfilled and was not subjected to any other conditions, in accordance
with the general legal principle of pacta sunt servanda, the Chamber decided that the club
is liable to pay to the player the amount which was outstanding under the contract i.e., EUR
500,000.
24. In addition, taking into consideration the player’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award player at the rate of 5% p.a. on
the outstanding amount as from 11 March 2022 until the date of effective payment.
iii. Compliance with monetary decisions
25. 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.
26. 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.
27. Therefore, bearing in mind the above, the DRC 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.
28. 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.
29. 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.
REF FPSD-6510
d. Costs
30. 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.
31. 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.
32. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
REF FPSD-6510
Decision of the Dispute Resolution Chamber
1.
The claim of Claimant 1 / Respondent 2, Erik Boeheim, is partially accepted.
2.
The claim of Claimant 2 / Respondent 1, FC Krasnodar, is rejected.
3.
Claimant 2 / Respondent 1, FC Krasnodar, has to pay to Claimant 1 / Respondent 2, Erik
Botham, the following amount:
- EUR 500,000 as outstanding amount plus 5% interest p.a. as from 11 March 2022 until
the date of effective payment
4.
Any further claims of Claimant 1 / Respondent 2 are rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
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. Claimant 2 / Respondent 1 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 Claimant 1 / Respondent 2
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
REF FPSD-6510
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).
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