Dispute Resolution Chamber
Texto da decisão
REF FPSD-2249
Decision of the
Dispute Resolution Chamber
passed on 3 June 2021
regarding an employment-related dispute concerning the player Radu Ginsari
COMPOSITION:
Clifford J. Hendel (USA)/(France), Deputy Chairman
Mohamed Muzammil (Singapore), member
Stefano Sartori (Italy), member
CLAIMANT:
Radu Ginsari, Moldova
Represented by Mr Mikhail Prokopets
RESPONDENT:
FC Krylia Sovetov, Russia
Represented by
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I.
FACTS OF THE CASE
1.
On 28 June 2019, the Claimant and the Respondent signed a contract, valid as from 28
June 2019 until 31 May 2021, as well as an appendix to said contract.
2.
According to the aforementioned documents, the Claimant was entitled – based on article
6.1 of the contract - to a monthly salary of EUR 10,000 net, as well as – based on article 2
of the appendix to the contract - ‘if the Player would duly fulfil his labour obligations under
the contract’, to an additional monthly fee of EUR 10,000 net.
3.
Article 3.1.5 of the contract holds the following clause: ‘The club shall provide life and
health insurance for the Player, throughout the contract validity period pay for the
treatment of sports injuries received by the Player at fulfilling of his obligations under the
Contract’.
4.
Article 6.5 of the contract stipulates the following: ‘All the payments to the Player under
the present contract, Appendices to the present Contract and local acts of the Club shall be
made in rubles. The Parties have agreed that the regular payments in rubles shall be made
on the basis of the foreign currency (USD, EUR, etc.) rate fixed by the local act (order) of
JSCCT PFC Krylia Sovetov and equal to the corresponding currency rate of the Central Bank
of the Russian Federation on the last day of the month for which the calculation is made.
Bonuses and incentives and other payments of irregular nature may be paid in accordance
with the rate of the Central Bank of the Russian Federation et for the date on which the
payment is made, but in any case no more than 75 rubles per 1 euro and 65 rubles per 1
USD. In case of the Player’s dismissal, the amounts of payments due to the Player defined
in foreign currency shall made in accordance with the rate of the Central Bank of the Russian
Federation on the date of dismissal unless otherwise agreed by the Parties, but in any case
no more than 75 rubles per 1 euro and 65 rubles per 1 USD’.
5.
Article 8.3 of the contract stipulates the following: ‘In case of termination of the Labour
Contract at the Player’s initiative (of his own accord) without just cause, and also
in case of termination of the Labour Contract at the initiative of the Club on the
grounds relating to the disciplinary sanctions (provided for in the part 3 of Article
192 of the Labour Code of the Russian Federation), the Player shall pay a
compensation to the Club in the amount which is equal to 2 500 000 (two million five
hundred thousand) Euros. The payment shall be made within 30 days from the termination
of the Labour Contract’.
6.
Article 8.4 of the contract holds the following clause: ‘The Club has the right to unilaterally
terminate this Labour Contract at any time, including during the Protected Period, by means
of giving of a termination notice to the Player at least 5 days before the termination. In this
case the Club shall, within 30 days, pay to the Player an amount equal to the Player’s
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monthly salary (clause 6.1), multiplied by the number of months remaining until the end of
the term of this Labour Contract.’
7.
Between 24 and 26 November 2020, the Claimant underwent ‘inpatient treatment’ in a
clinic in Rome, Italy, for a ‘relapsed old dislocation of left foot with a medial capsule rupture
and ligaments with a partial break of os trogonum’, leading to medical expenses in the total
amount of EUR 15,876.70.
8.
On 16 February 2021, the Respondent informed the Claimant about the early termination
of the contract as from 24 February 2021, based on art. 8.4 of the contract.
9.
On 17 February 2021, the Claimant contested the termination of the contract, arguing that
the art. 8.4 of the contract is not valid, as it is not reciprocal. What is more, the Claimant
provided the Respondent with a 10 days’ deadline to pay him his outstanding remuneration,
costs of medical treatment and compensation for breach of contract, however to no avail.
10.
On 24 February 2021, the Respondent effectively terminated the contract by means of a
termination order, which again refers to art. 8.4 of the contract.
11.
On 26 February 2021, the Claimant concluded a new employment contract with the
Moldovan club FC Milsami Orhei, valid between 1 March and 31 December 2021, based
on which the Claimant was entitled to a monthly salary of MDL 4,375 gross (approximately
EUR 200).
12.
On 1 March 2021, the Claimant again put the Respondent in default and explained that
the termination of the contract was not validly made and providing a final deadline of 30
days to remedy its default.
13.
On 24 March 2021, the Respondent paid the Claimant has outstanding remuneration until
24 February 2021, as well as the alleged compensation for the termination of the contract
in the amount of RUB 2,678,289 or EUR 29,836, which is ‘little less than stipulated by the
Art. 8.4 of the Contract, i.e. the part of the Player’s salary indicated in the Contract (EUR 10
000) multiplied on remaining term of the Contract’.
II.
PROCEEDINGS BEFORE FIFA
14.
On 7 April 2021, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a.
15.
The claim of the Claimant
In his claim, the Claimant explains that he is of the opinion that the Respondent terminate
the contract without just cause, as article 8.4 is not reciprocal and thus cannot be upheld.
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What is more, the Claimant explains that the mentioned clause is to the benefit of the
Respondent only.
16.
As to the calculation of the compensation, the Claimant explains that the calculation cannot
be based upon article 8.4 of the contract, but should rather be calculated in the basis of
art. 17 of the FIFA Regulations and that as a result, the amount of EUR 62,630 is due (out
of which already an amount of EUR 29,836 is paid).
17.
Moreover, the Claimant deems that he is entitled to reimbursement of the medical costs,
in view of article 3.1.5 of the contract.
18.
The Claimant lodged a claim against the Respondent in front of FIFA, asking that the
Respondent be ordered to pay him the following amounts:
-
EUR 32,794 net as compensation for breach of contract, plus 5% interest p.a. as
from 24 February 2021
EUR 15,876.70 as reimbursement of medical expenses.
Furthermore, the Claimant asked for sporting sanctions to be imposed on the Respondent
b.
Position of the Respondent
19.
In its reply to the claim of the Claimant, the Respondent argued that – when making use
of the termination option in art. 8.4 of the contract – it correctly paid the Claimant a final
compensation of RUB 2,678,289, corresponding to EUR 35,710.52. The Respondent
explains that said amount in EUR can be calculated by dividing the paid amount RUB
2,678,629 by 75 rubles (the maximum exchange rate as per article 6.5 of the contract).
20.
Furthermore, the Respondent argues that it considers article 8.4 of the contract to be a
valid ”buy-out clause”, and that said clause – in combination with article 8.3 of the contract
– can be considered reciprocal. In this respect, the Respondent also refers to CAS
2019/A/6514, in which award it is considered that ‘the validity of the buyout clause is not
conditional on the full reciprocity of the contractual obligations under the buyout
clause’. Also, CAS 2015/A/4000 states the following ‘The Panel notes that article 17(1)
of the FIFA Regulations does not require contractually agreed liquidated damages
clauses to be reciprocal, nor is there any other source or legal doctrine, or at least
no such source has been cited by any of the parties, based on which such test would have
to be applied’.
21.
Additionally, the Respondent argues that the additional amount of EUR 10,000 is only due
if the Claimant properly fulfils his contractual obligations and is not of guaranteed nature.
22.
As to the medical expenses, the Respondent argues that it offered the Claimant to undergo
said treatment sin a clinic in Moscow or St. Petersburg, but that the Claimant had indicated
to the Respondent that he preferred that the medical treatment would take place in a clinic
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in Rome, Italy. As the Claimant confirmed to the Respondent that ‘he had no financial or
other claims to the Club related to the fulfilment of the terms and conditions of the Labor
Contract in respect of medical support in connection with the injury sustained‘, the
Respondent did not oppose said request.
III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
Competence and applicable legal framework
23.
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 7 April 2021 and submitted for
decision on 3 June 2021. Taking into account the wording of art. 21 of the 2021 edition of
the Rules Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned edition of the
Procedural Rules is applicable to the matter at hand.
24.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules
and observed that in accordance with art. 24 par. 1 in combination with art. 22 lit. a) and
b) of the Regulations on the Status and Transfer of Players (edition February 2021), 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 Moldovan
player and a Russian club.
25.
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 Player (edition February 2021), and
considering that the present claim was lodged on 7 April 2021, the February 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b.
Burden of proof
26.
The Chamber recalled the basic principle of burden of proof, as stipulated in art. 12
par. 3 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 DRC stressed the
wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties.
27.
In this respect, the Chamber also recalled that in accordance with art. 6 par. 3 of Annexe 3
of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence generated
or contained in TMS.
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c.
28.
Merits of the dispute
The competence of the DRC and the applicable regulations having been established, the
DRC entered into the merits of the dispute. In this respect, the DRC started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC 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 the parties strongly dispute the question whether or not the
unilateral termination of the contract by the Respondent on24 February 2021 was mad with
just cause.
30.
In this context, the Chamber acknowledged that it its task was to determine whether or
not the unilateral termination of the contract on 24 February 2021 was made with or
without just cause and what the consequences of said termination are.
31.
In this respect, the members of the Chamber concluded that the unilateral termination of
the contract, made on 24 February 2021, was made in the basis of art. 8.4 of the contract,
a clause that gives the Respondent the right to unilaterally terminate the contract. The
Claimant, by making use of said clause, had - according to the members of the Chamber –
validly terminated the contract, but should also be held liable for the financial consequences
of said termination.
ii. Consequences
32.
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 during the protected period.
33.
First of all, the DRC first of all wished to address the topic of any unpaid remuneration,
which the Respondent – in line with the legal principle of “pacta sunt servanda” would be
obliged to pay to the Claimant.
34.
In this respect, the DRC however noted that the Respondent had paid to the Claimant his
remuneration until the date of termination of the contract (24 February 2021), and that as
a result, no remuneration remained outstanding.
35.
What is more, in relation to the amounts claimed as reimbursement of medical expenses,
the members of the Chamber were of the unanimous opinion that - although the clause in
article 3.1.5 is in essence clear that the Respondent is responsible for the reimbursement of
said costs - the Respondent had demonstrated, by submitting a declaration of the Claimant
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dated 19 November 2020, that the Claimant indicated that he would bear these costs
himself.
36.
In continuation, the Chamber decided that, taking into consideration the Claimant’s
respective claim and art. 17 par. 1 of the Regulations, the Claimant is entitled to receive
from the Respondent compensation for breach of contract in addition to any outstanding
salaries on the basis of the relevant employment contract.
37.
In this context, the members of the Chamber outlined that, in accordance with said
provision, 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 Claimant 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.
38.
In application of the relevant provision, the Chamber held that he first of all had to clarify
whether the pertinent employment contract contained any clause, by means of which the
parties had beforehand agreed upon a compensation payable by the contractual parties in
the event of breach of contract.
39.
In this regard, the members of the Chamber noted art. 8.3 and 8.4 of the contract
contained a set of compensation clauses, establishing inter alia that in case the Claimant
would be entitled to receive an amount equal to the basic monthly salary of EUR 10,000,
multiplied by the number of months that would remain until the end of the Claimant’s
contract, in case the Respondent would decide to unilaterally terminate the contract.
40.
The members of the Chamber – after having analysed the contents of the above clause 8.4,
which was used by the Respondent to justify the unilateral termination of the contract agreed that this clause is mainly to the benefit of the club, as it provides for a limited amount
of compensation (i.e. 50% of the full salary) and the Claimant was effectively hindered in
fulfilling his contractual obligations.
41.
In view of all the foregoing circumstances, the members of the Chamber came to the
conclusion that said clause cannot be taken into consideration in the determination of the
amount of compensation.
42.
Subsequently, the Chamber noted that the remaining value of the employment contract as
from the date of the termination until the original expiry of the employment contract
amounted to EUR 62,857, i.e. three monthly salaries amounting to EUR 20,000 each, as
well as the pro rata part of the salary for the period between 24 and 28 February 2021, in
the amount of EUR 2,857. What is more, the Chamber took into account that on 24 March
2021, an amount of EUR 29,836 was paid by the Respondent to the Claimant.
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43.
Consequently, the members of the Chamber concluded the amount of (EUR 62,857 -/- EUR
29,836 = EUR 33,021 shall serve as the basis for the final determination of the amount of
compensation for breach of contract.
44.
In continuation, the members of the Chamber noted that the had concluded a new
employment contract with the Moldovan club FC Milsami Orhei, valid between 1 March
and 31 December 2021, based on which the Claimant was entitled to a monthly salary of
MDL 4,375 gross (approximately EUR 200). In the overlapping period until 31 May 2021,
the Claimant was thus able to mitigate his damages with the total amount of EUR 600.
45.
Consequently, and bearing in mind the provision of art. 17 par. 1 of the Regulations and in
accordance with the constant practice of the Dispute Resolution Chamber as well as the
general obligation of the player to mitigate his damages, such remuneration under the new
employment contract shall be taken into account for the calculation of the amount of
compensation for breach of contract.
46.
In view of all of the above, the members of the Chamber decided that the Respondent must
pay the amount of EUR 32,421 to the Claimant, which is considered by the Chamber to be
a reasonable and justified amount as compensation for breach of contract.
47.
In conclusion, the DRC decided that the any further claim of the Claimant of the Claimant
is rejected and that as a consequence, the claim is partially accepted.
iii. Compliance with monetary decisions
48.
Finally, taking into account the consideration under number 46. above, the Chamber
referred to par. 1 lit. and 2 of art. 24bis 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.
49.
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.
50.
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. 24bis par. 2, 4, and 7 of the Regulations.
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51.
The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Registration Form, which is attached to the
present decision.
52.
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. 24bis par. 8
of the Regulations.
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IV.
DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant, Radu Ginsari, is partially accepted.
2.
The Respondent, FC Krylia Sovetov, has to pay to the Claimant, the following amount:
-
EUR 32,421 as compensation for breach of contract, plus 5% interest p.a. as from 7 April
2021 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 set out in the
enclosed Bank Account Registration Form.
5.
Pursuant to article 24bis of the Regulations on the Status and Transfer of Players if full payment
(including all applicable interest) is not paid 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 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 paid by the end of
the of the three entire and consecutive registration periods.
6.
The consequences shall only be enforced at the request of the Claimant in accordance
with article 24bis paragraphs 7 and 8 and article 24ter of the Regulations on the Status and
Transfer of Players.
7.
This decision is rendered without costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 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 20 of the Procedural Rules).
CONTACT INFORMATION:
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