Labour Disputes
Texto da decisão
REF FPSD-5338
Decision of the
Dispute Resolution Chamber
passed on 2 June 2022
regarding an employment-related dispute concerning the player FK Spartaks
BY:
Omar Ongaro (Italy), Deputy Chairperson
Stefano Sartori (Italy), member
André dos Santos Megale (Brazil), member
CLAIMANT / COUNTER-RESPONDENT:
FK Spartaks, Latvia
Represented by Georgi Gradev and Márton Kiss
RESPONDENT 1 / COUNTER-CLAIMANT:
Matvei Ivakhnov, Russia
RESPONDENT 2:
FC Krasava, Russia
Represented by Maksim Krasnobaev
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I.
Facts of the case
1.
According to the information contained in the TMS, the Russian player Matvei Ivakhnov
(hereinafter: the player) and the Russian club Dinamo Moscow (hereinafter: Dinamo)
concluded a contract, valid as from an unspecified date until 30 June 2021. Dinamo Moscow
is listed as category II club in TMS.
2.
On 10 May 2021, the player and the Latvian club FK Spartaks (hereinafter: Spartaks)
concluded a contract, valid between 21 July 2021 and 31 December 2026, based on which
the player was entitled to receive a monthly salary of EUR 1,620. Spartaks is listed as category
III club in TMS.
3.
On 2 September 2021, a player’s agent, Mr Marco Trabucchi, sent the player a draft of a
contract between the player and Spartaks, valid between 3 September 2021 and 31
December 2024, based on which the player was entitled to receive a monthly salary of EUR
1,200, as well as variable salary of EUR 500 in case the player plays at least 1/3 of the official
games during one calendar month and EUR 800 in case the player plays at least 2/3 of the
official games during one calendar month. Ultimately, this document was signed by both the
player and Spartaks.
4.
On 6 September 2021, the player signed a contract with the Latvian club FC Super Nova
(hereinafter: Super Nova), a category IV-club, valid between 6 September 2021 and 31
December 2022, based on which the player was entitled to receive a monthly salary of EUR
1,200.
5.
On 7 September 2021, Super Nova entered a transfer instruction in TMS to engage the player
as “free of contract”. The releasing club was listed as Dinamo.
6.
On 5 January 2022, the player and Spartaks allegedly concluded a new employment
agreement, valid between 5 January 2022 and 31 December 2024, based on which the player
was entitled to receive a monthly salary of EUR 1,200, as well as variable salary of EUR 500
in case the player plays at least 1/3 of the official games during one calendar month and EUR
800 in case the player plays at least 2/3 of the official games during one calendar month.
7.
On 14 February 2022, the player signed a new contract with the Russian club FC Krasava
(hereinafter: Krasava), valid between 14 February and 30 June 2023, based on which the
player was entitled to receive a monthly salary of RUB 34,483 (EUR 280) in the period between
14 February and 30 June 2022 and a monthly salary of RUB 57,541 (EUR 470) in the period
between 1 July 2022 and 30 June 2023. Krasava is listed as a category IV club in TMS.
8.
On the same date, Krasava entered a transfer instruction in TMS to engage the player as “free
of contract”. The releasing club was listed as Super Nova.
9.
In September and October 2021, the player played in several matches of FC Super Nova.
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10. On 4 January 2022, the contract between the player and Super Nova was terminated by
mutual agreement.
11. On 13 February 2022, the player unilaterally terminated the contract with Spartaks, because
‘he was subject to a bridge transfer’, as well as ‘in connection with a significant violation of
the labor contract by the club, as well as a violation by the club of the integrity of football
with risk of applying sports disqualification to me’.
12. On 14 February 2022, Spartaks requested the player to join its team after the holiday period,
however, the player on the same day signed a contract with Krasava.
13. On 15 February 2022, the LFF provided the player a copy of the contract he allegedly signed
with Spartaks on 5 January 2022, in reply to which the player denied having signed such
contract and requested to be provided a colour copy of said contract, however to no avail.
14. On 15 February 2022, Spartaks reached out to the player, informing him that it deemed that
the termination was made without just cause, as his allegations regarding the bridge transfer
remained unproven.
15. On 17 February 2022, the Football Union of Russia (FUR) requested the ITC of the player,
which was eventually rejected by the LFF on 2 March 2022. Eventually on 15 March 2022,
FIFA granted the provisional registration of the player with immediate effect, and the player
was eventually registered on 22 March 2022 by Krasava.
16. Also on 17 February 2022, the player informed Spartaks that he never signed the contract
dated 5 January 2022.
17. On 14 February 2022, the player signed a contract with Krasava, valid between 14 February
and 30 June 2023, based on which the player was entitled to receive a monthly salary of RUB
34,483 (EUR 280) in the period between 14 February and 30 June 2022 and a monthly salary
of RUB 57,541 (EUR 470) in the period between 1 July 2022 and 30 June 2023.
18. Art. 7.5.2 of the contract contains the following clause: ‘Receipt by the Employer of an offer
during the summer or winter registration periods of the 2022-2023 sports season from one
of the RPL or FNL 1 football clubs, and the implementation by this club in favor of the
Employer of a cash payment in the amount of 10,000,000 (ten million) rubles and payment
of conditional compensation for the subsequent transfer of the Employee (sell-on fee) to the
third professional football club in the amount of 20% (twenty percent) of the transfer
payment. The specified unconditional payment is made by the new football club on the last
working day of the Employee, unless the Parties agree otherwise.’
19. Art. 7.6 of the contract stipulates the following: ‘In case of termination of the Contract on
the initiative of the Employee (at his own request) without just cause, as well as in case of
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termination of the Contract on the initiative of the Employer when the Employee's guilty
actions are initiated, the Employee is obliged to make a payment in favor of the Employer in
the amount of 10,000,000 (ten million) rubles (liquidated damages). The maximum amount
of the Employee's liability to the Employer is limited to the specified amount. The specified
payment shall be made within 2 (two) months from the date of termination of the Contract.
The payment of the specified amount does not exempt the Employee and his new football
club from the application of sports sanctions provided for by the regulations of FIFA and the
FUR.’
II. Proceedings before FIFA
20. On 3 March 2022, Spartaks filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Position of Spartaks
21. In its claim, Spartaks explained that the only reason the player terminated the contract with
Spartaks, i.e. the one signed on 5 January 2022, was because he wanted to make a transfer
to Krasava.
22. What is more, Spartaks explains that the player was not able to demonstrate that Spartaks
was in breach of any of its contractual obligations, nor that there was a bridge transfer. In
this respect Spartaks explains that the player was for more than 16 weeks (i.e. the period
between 8 September 2021 and 5 January 2022) registered with Super Nova, and even played
in 4 official matches for said club.
23. Also, Spartaks explains that potential issues regarding training compensation and an alleged
bridge transfer do not affect the player, as training compensation is a matter between the
player’s training clubs and Spartaks, and an alleged bridge transfer an issue between Spartaks
and FIFA.
24. Also, Spartaks explains that if the player was really the subject of a bridge transfer, he should
have known that already in September 2021 when he was registered at Super Nova. If that
was an issue for him, he should have not signed for Spartaks, which he however voluntarily
did in January 2022.
25. As result, Spartaks deems that the termination of the contract by the player on 13 February
2022 was made without just cause and that thus, it is entitled to compensation for breach of
contract. As to the compensation for breach of contract, Spartaks explains that the residual
value of the contract with Spartaks in the period between 13 February 2022 and 31 December
2024 was EUR 41,400 and that the value of the contract with Krasava is suspiciously low and
should not be taken into account. Spartaks deems it more realistic to take into account the
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amount of RUB 10,000,000 or EUR 80,000 as per clause 7.5.2 and 7.6 of the contract with
Krasava.
26. Finally, Spartaks provided the original versions of the contracts allegedly signed by the player.
27. The requests for relief of Spartaks, as amended, were the following:
•
To be awarded the amount of EUR 80,000 as compensation for breach of contract (or
an amount between (EUR 41,400 and EUR 80,000), plus 5% interest p.a. as from 13
February 2022 and to hold Krasava jointly liable for the payment of said amount;
•
That sporting sanctions will be imposed on the player and Krasava.
b. Position of Krasava
28. In its reply, Krasava argued that the player and Super Nova on 6 September 2021, concluded
a contract, valid between 6 September 2021 and 31 December 2022.
29. Moreover, Krasava explains that the player denies having signed the contract dated 5 January
2022 with Spartaks, and explains that the player’s player passport dated 9 February 2022,
issued by the Latvian Football Federation (LFF), indicates that the player’s last club was Super
Nova.
30. Moreover, Krasava explains that under Latvian labour law, the contract the player allegedly
concluded with Spartaks cannot be considered valid, as the player never agreed with the
contents of it. Krasava explains that this follows from the fact that the player’s alleged
signature under the contract with Spartaks appears to have been copied from another
document and copied to the contract dated 5 January 2022. In this respect, Krasava provides
an overview if signatures of the player and explains that all these signatures are exactly the
same and might thus be copied. Also, Krasava points out that the LFF and/or Spartaks never
provided a hard copy of said alleged contract.
31. Also, Krasava points out that the player’s statement dated 13 February 2022 cannot be
considered as a confirmation of an existing employment relationship between the player and
Spartaks, as the player simply relied on the statements of Mr Trabucchi, that he had a contract
dated “15” January 2022 concluded with Spartaks. In addition, Krasava points out that the
contract cannot have been concluded in Latvia, as the document indicates, because the player
was at that time in Russia. Also, Krasava points out that Spartaks never announced the signing
of said contract or paid salary to the player as per said contract.
32. In addition, Krasava explains that Mr Trabucchi, a player’s agent, managed the career of the
player and offered the player to sign a contract with Spartaks, however that the contracts
dated 10 May 2021 and 3 September 2021 between the player and Spartaks were never
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registered with the LFF. Moreover, Mr Trabucchi – according to Krasava – advised the player
on 6 September 2021 to sign the contract with Super Nova, which the player consequently
did and said contract was also registered with the LFF.
33. Moreover, Krasava explains that on 6 January 2022, the president of Super Nova ‘sent
employment contract termination agreement to the First Respondent dated 06.09.2021
signed by the parties but without the date of its conclusion. Thus, the employment contract
between the First Respondent and the FC Super Nova dated 06.01.2022 was not terminated’.
Moreover, Krasava explains that the handwritten date of 4 January 2022 on the contract
termination agreement was only put in at earliest on 6 January 2022 and thus concludes that
the player and Super Nova were in a contractual relationship with each other until 6 January
2022.
34. According to Krasava, on 8 February 2022, Mr Trabucchi confirmed the player that his transfer
to Super Nova (a category IV club) was a bridge transfer, so that it could be avoided that
Spartaks had to pay training compensation to the player’s previous club Dinamo.
35. Furthermore, Krasava explains that Spartak tried to profit from the situation by arguing on
14 February 2022 that the player had an employment contract with it and that the player
should report for training sessions. On the same time, Krasava argues that it is illogical as per
Latvian labour law that the player signed a contract with Spartaks on 5 January 2022 and
then only had to report for duty as from 14 February 2022.
36. In conclusion, Krasava states that the player never signed the alleged contract dated 5 January
2022 with Spartaks, as well as that Spartak’s actions are unjust enrichment.
c. Position of the player
37. In his reply, the player submitted the same argumentation as Krasava, arguing that the
contract dated 5 January 2022 was not valid under Latvian employment law and that his
signature on the document was copied from other documents. Also, the player explains that
he did not receive a copy of the contract, nor did the LFF ask for a (hard copy) of the contract
from Spartaks.
38. Moreover, the player explains that a handwriting expert had concluded that the alleged
signatures of the player on the document were ‘placed by using a technical tool’.
39. In addition, the player refers to a meeting of the LFF Committee on Status and Transfers which allegedly considered on 8 March 2022 that on 13 February 2022, the player allegedly
declared the termination of the contract dated 5 January 2022 – and denies that on 13
February 2022, he did so. According to the player, his statement dated 13 February 2022
cannot be considered as a confirmation of the existence of an employment agreement.
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40. In addition, the player explains that Spartaks showed atypical behaviour in the period after
13 February 2022 by ignoring the fact that the player did not come to the training camp and
by – via its legal representative Mr Gradev – trying to put pressure on the player to withdraw
the request dated 15 February 2022.
41. In conclusion, the player states that no employment relationship was concluded on 5 January
2022 between him and Spartaks and wishes that the DRC accepts this “counterclaim” from
his side.
d. Position of Super Nova
42. In reply to the entire case file, Super Nova explains that the player was a young and
prospective player, who played in the youth academy of Dinamo Moscow. Super Nova
explains that the player was first recommended to Spartaks, however that he lacked the
required level and experience and was thus recommended to Super Nova in 2021.
43. Further, Super Nova explained that – after it signed a contract with the player on 6 September
2021 – the player however only played in 4 official matches of its club, as a result of which
on 4 January 2022, it agreed with the player to mutually terminate the contract.
44. Super Nova further holds that it signed the player ‘out of its own volition’ and that it was not
in breach of art. 5bis RSTP (it was not used as a vehicle for a bridge transfer) and art. 18bis
RSTP (there was no third-party influence on its club).
45. In respect to the alleged bridge transfer, Super Nova explains that (a) it signed a contract for
1.5 years with the player, (b) it paid the player EUR 1,200 per month, (c) the player trained
with the first team and played in 4 matches and (d) more than 16 weeks had passed between
‘Mr Ivakhnov’s move from Super Nova to Spartaks’, as a result of which no bridge transfer
had occurred.
e. Position of Dinamo
46. Despite having been invited to do so, Dinamo did not provide its comments to the entire case
file.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
47. 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 3 March 2022 and submitted for decision
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on 2 June 2022. Taking into account the wording of art. 34 of the October 2021 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.
48. 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 2022 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 Latvian club and a
Russian player, with the involvement of a Russian club.
49. 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 2022 edition), and
considering that the present claim was lodged on 3 March 2022, the March 2022 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
50. 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
51. 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
52. 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 circumstances under which the
respective contracts between the parties have been signed between the summer of 2021 and
February 2022. Moreover, the parties appear to strongly disagree whether the contract dated
5 January 2022 and allegedly concluded between Spartaks and the player was effectively
signed and whether said contract was terminated by the player on 13 February 2022.
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53. In this context, the Chamber acknowledged that it its task was to determine whether the
contract dated 5 January 2022 was indeed signed by the player and whether such document
established a valid employment relationship between the parties. Furthermore, it had to be
examined whether said contract was unilaterally terminated by one of the parties and if so,
whether said termination was made with or without just cause and what the consequences
of said termination would be.
54. First of all, the members of the Chamber deemed it important to start mentioning a few
observations, it noted from the documentation provided by the parties and which it deemed
of particular importance to reconstruct the career path of the player.
Introductory observations from the documentation on file and TMS
•
The player signed in the time frame between July 2021 and February 2022 several
contracts, with Spartaks and Super Nova, which were consequently terminated within a
relatively short time frame;
•
According to the information provided by Super Nova, it appears that Spartaks was
allegedly interested in hiring the services of the player, however that it allegedly deemed
that the player should gain more experience and should be loaned out to a third club;
•
Not all moves from the player from one club to another, are reflected in the TMS, as only
the moves from Dinamo to Super Nova, and consequently from Super Nova to Krasava
are entered and the TMS does not hold any reference to Spartaks. The transfers of the
player from Dinamo to Spartaks, despite being an international move between two
different member associations, is not visible in the TMS;
•
The player alleges that he had become victim of a construction set up by Spartaks, which
wanted to avoid that it had to pay training compensation to Dinamo for the transfer and
registration of the player;
•
The player further alleged that he never signed the contract dated 5 January 2022 with
Spartaks;
•
The player, when willing to cut his alleged contractual ties with Spartaks on 13 February
2022, invoked that he – against his will – became involved in a bridge transfer and/or
construction set up by Spartaks, which was the reason for him to deem that he had a
valid reason to terminate the contract with Spartaks on said date.
55. Taken the above elements into account, the members of the Chamber determined that - in
order to analyse whether the contract between the parties existed, was breached and if so,
which party should be held responsible for this breach – the following topics have shall be
analysed:
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The alleged signing of the contract with Spartaks on 5 January 2022;
The alleged termination of the contract by the player on 13 February 2022;
The alleged bridge transfer;
Conclusions.
Substance of the matter at hand
The alleged signing of the contract with Spartaks on 5 January 2022
56. First of all, the Chamber wished to address the alleged signing of the contract dated 5 January
2022, which document forms the basis for the claim of Spartaks to claim compensation for
breach of contract from the player. On the one hand, the Chamber noted that Spartaks
deems that such contract was validly concluded and thus binding on the player and itself.
57. On the other hand, the members of the Chamber took note that the player, in his position,
submitted an extensive explanation as to the circumstances under which he was in contact
with Spartaks, but eventually denies that he ever signed the contract with Spartaks on 5
January 2022.
58. Thus, the Chamber understood that it would need to establish whether the disputed
document could in fact be taken into consideration in the context of the present case.
59. Bearing in mind the foregoing, the Chamber went on to analyse the documentation provided
by both parties in support of their position. The Chamber also emphasised that, according to
the last sentence of art. 13 par. 3 of the Procedural Rules (October 2021 edition), it has
ultimate discretion to as to the weight it gives to evidence.
60. At this stage, the Chamber considered appropriate to remark that, as a general rule, FIFA’s
deciding bodies are not competent to decide upon matters of criminal law, such as the ones
of alleged falsified signature or documents, and that such affairs fall into the jurisdiction of
the competent national criminal authority. In order to be able to solve such disputes in a
satisfactory and timely manner, without the need to wait for the initiation and conclusion of
a potential criminal investigation, the Chamber adopts a practical procedure in such cases,
namely to request the party who claims the authenticity of the disputed document to provide
its original version via regular mail. If for a layman the document appears to be authentic and
in line with the further documentation on file, such document is considered as authentic for
the purposes of solving the dispute at hand.
61. After thoroughly analysing the documentation produced by the parties, the Chamber Judge
noted that Spartaks was in fact able to provide the original of such document within the
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given deadline, which appears to be a legitimate document in the analysis of a non-expert.
In this respect, the Chamber wished to point out that apparently three (identical) versions of
said contract were signed and on at least two versions, for a layman, the signatures of the
player are non-automated signatures (as they are all slightly different), which are matching
with the player’s signatures on non-contested documentation.
62. Therefore, in line with FIFA’s well-established jurisprudence, the Chamber established that it
would take into account the contract signed on 5 January 2022 in the context of the present
dispute.
63. What is more, the explanation and argumentation submitted by the player that it was
impossible that he had signed said contract as he allegedly was in a different country than
the one mentioned in the contract and that thus, no contractual relation between him and
Spartaks existed as from 5 January 2022, was in the Chamber’s view not backed with
sufficient, convincing, documentary evidence.
64. As the document dated 5 January 2022 further contained all essentialia negotii, the Chamber
reached the conclusion that the player and Spartaks, on 5 January 2022, had concluded a
valid and binding employment contract, binding them for the period between 5 January 2022
and 31 December 2024.
The alleged termination of the contract by the player on 13 February 2022;
65. What is more, having established that a valid and binding contract was concluded between
the parties on 5 January 2022, the members of the Chamber deemed it relevant to analyse
whether such contract was effectively terminated by one of the parties, and if so, by whom.
In this respect, it took note that from the information on file, Spartaks is of the opinion that
that the player, on 13 February 2022, had unilaterally terminated the contract with immediate
effect, based on the alleged fact that he was (potentially) a victim of a bridge transfer.
66. In more detail Spartaks explains that the letter of the player, by means of which he indicates
to Spartaks ‘the termination of labor relations with FC Spartaks Jurmala in connection with a
significant violation of the labor contract by the club, as well as a violation of the club of the
integrity of football with risk of applying sporting disqualification to me’, and ‘to consider
him dismissed from 13 February 2022’, can only be explained as an effective termination of
the contract signed on 5 January 2022.
67. The members of the Chamber also noted that the player, on the other hand, does not agree
with said allegations of Spartaks and deems that his letter dated 13 February 2022 cannot be
considered as a confirmation of an existing employment relationship and a consequent
termination of said relationship between him and Spartaks.
68. However, in the Chamber’s view, the contents of said letter are – also following then fact
that the parties had effectively concluded a valid and binding contract on 5 January 2022 -
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quite clear: the player allegedly assumed that there was a contractual relationship between
him and Spartaks and wished to end his contractual ties with said club. The wording of the
letter seems in the Chamber’s view unequivocally clear, and led to the Chamber’s view to the
valid assumption on Spartaks’ side that the player did not longer wish to be part of Spartak’s
team. The Chamber, after having read the arguments to the contrary from the player, was
not sufficiently convinced that the contents of said letter did not point towards a unilateral
termination of the contract.
69. In this respect, Chamber also established that in case a party decides to undertake an action
of legal significance, such as the termination of an employment relationship, as a general
rule, he does so on its own responsibility and is liable to bear the legal consequences arising
from the termination of such contract.
70. As such, the members of the Chamber reached the conclusion that the contract signed on 5
January 2022 was – by means of his letter dated 13 February 2022 – also effectively
terminated with immediate effect by the player on 13 February 2022.
The alleged bridge transfer
71. As to the question whether said termination on 13 February 2022 was made with or without
just cause, the members of the Chamber deemed it crucial to analyse the reasoning brought
forward by the player to terminate the contract, i.e. his alleged non-voluntary involvement in
a bridge transfer set up by Spartaks.
72. In this respect, the Chamber noted that the player alleged that due to the alleged existence
of a bridge transfer, allegedly set up by Spartaks and/or its owner, who was also the player’s
agent, Mr Trabucchi, he had a valid reason to terminate his contract with Spartaks on 13
February 2022.
73. In this respect, before entering into the analysis whether from the information on file, such
bridge transfer could be constructed, the members of the Chamber deemed it relevant to
recall the exact wording of art. 5bis of the FIFA Regulations on the Status and Transfer of
Players, which stipulates the following:
“5bis Bridge transfer
1. No club or player shall be involved in a bridge transfer.
2. It shall be presumed, unless established to the contrary, that if two consecutive transfers,
national or international, of the same player occur within a period of 16 weeks, the parties
(clubs and player) involved in those two transfers have participated in a bridge transfer.
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3. The FIFA Disciplinary Committee, in accordance with the FIFA Disciplinary Code, will impose
sanctions on any party subject to the FIFA Statutes and regulations involved in a bridge
transfer.”
74. First of all, the members of the Chamber recalled noted that the player, after he left Dinamo,
apparently signed two contracts with Spartaks (on 10 May and 2 September 2021), which
contracts were consequently not registered with the LFF, nor was the payer himself registered
for Spartaks. In addition, on 6 September 2021, the player signed a contract and was
registered with Super Nova, after a request for the ITC was validly performed and the player
was transferred from the Russian Football Union (and its affiliated club Dinamo) to the LFF
(and its affiliated club Super Nova).
75. Furthermore, the members deemed it relevant to note that the player consequently, on 5
January 2022, signed a contract with Spartaks (cf. considerations above) and made thus a
national transfer in Latvia from Super Nova to Spartaks. Lastly, the player transferred, on 14
February 2022, to Krasava, while in the scope of said transfer, which is correctly reflected in
TMS and contains a registration date of 15 March 2022, both Spartaks and Super Nova were
indicated as the player’s previous clubs on the player passport issued by the LFF.
76. Having analysed the above chain of transfers, the members of the Chamber were of the
opinion that it could not be established with certainty that a bridge transfer had occurred. In
this respect, the Chamber pointed out that the reasoning the registration with Super Nova
would be part of a bridge transfer, could not be upheld, as (a) the period between 8
September 2021, the date of registration with Super Nova, and 5 January 2022, the day of
signing the contract with Spartaks, exceeds the period of 16 weeks as mentioned in art. 5bis
of the Regulations and (b) the player effectively played in 4 matches for the team of Super
Nova.
77. The members of the Chamber established that, since the period of 16 weeks was exceeded,
the assumption as per art. 5bis of the Regulations is no longer in force and it would have
been up to the player to prove with documentary evidence that a bridge transfer in fact had
occurred. The Chamber deemed that the player was not able to provide such documentary
evidence.
78. Moreover, the Chamber noted that the player had waited rather long, for almost 1.5 months,
to invoke that a bridge transfer had in fact occurred, which is according to the members of
the Chamber also a factor to take into account while assessing whether the player could
validly terminate the contract with just cause. In general, the members of the Chamber agreed
that – would a player wish to terminate a contract with just cause based on an alleged bridge
transfer – it could be expected that the player acts quicker than waiting for almost 1.5
months.
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79. Finally, the Chamber deemed it important to point out that in the matter at hand, there was
no reply received from Dinamo, despite said party was requested to provide its comments to
the documentation and submissions on file. Moreover, FIFA was not informed that via other
channels, that Dinamo was of the opinion that it had become a victim a bridge transfer. The
members of the Chamber deemed these circumstances relevant to take into account, as the
player alleged that the whole purpose the bridge transfer was allegedly to void that Spartaks
should pay training compensation to Dinamo.
80. Lastly, the members of the Chamber noted that, even if the bridge transfer would have been
established, quod non, this would not have affected the validity of the contract concluded on
5 January 2022.
81. In conclusion, based on the available information and evidence on file, the members of the
Chamber concluded that it could not be established that in the matter at hand, a bridge
transfer had taken place. As a result, the player’s reason for his terminating the contract with
Spartaks, i.e. the alleged involvement in a bridge transfer, could not be proven with sufficient
and corroborating documentary evidence.
Conclusions
82. Taking into account the aforementioned considerations, the members of the Chamber
reached the conclusion that it could be validly established that the player and Spartaks, on 5
January 2022, had concluded a valid and binding employment contract on 5 January 2022,
which was consequently unilaterally terminated by the player on 13 February 2022.
83. What is more, the reasons invoked by the player for the unilateral termination, i.e. the
potential involvement of Spartaks and/or Mr Trabucchi in a bridge transfer, were - in the view
of the members of the Chamber – not backed by sufficient documentary evidence and could
thus not be derived from the information on file.
84. In view of the foregoing, the members of the Chamber came to the conclusion that the
contract signed on 5 January 2022, was unilaterally terminated by the player on 13 February
2022 without just cause. As a result, the player is in principle obliged to pay compensation
for breach of contract to Spartaks.
ii. Consequences
85. 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 player.
86. The Chamber first of all established that at the date of termination of the contract, i.e. 13
February 2022, it appears that there was no remuneration due by Spartaks to the player, as
the latter did not lodge any claim towards Spartaks, requesting to be awarded specific
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amounts. Therefore, the members of the Chamber decided that the topic of any potential
outstanding remuneration does not need to be further addressed.
87. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to Spartaks by the player 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, the fees
and expenses paid or incurred by the former club (amortised over the term of the contract)
and depending on whether the contractual breach falls within the protected period.
88. 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.
89. In this regard, the Chamber took note of the wording of clauses 7.5.2. and 7.6 of the
contract, which establishes the following:
“Art. 7.5.2: ‘Receipt by the Employer of an offer during the summer or winter registration
periods of the 2022-2023 sports season from one of the RPL or FNL 1 football clubs, and the
implementation by this club in favor of the Employer of a cash payment in the amount of
10,000,000 (ten million) rubles and payment of conditional compensation for the subsequent
transfer of the Employee (sell-on fee) to the third professional football club in the amount of
20% (twenty percent) of the transfer payment. The specified unconditional payment is made
by the new football club on the last working day of the Employee, unless the Parties agree
otherwise.’
Art. 7.6: ‘In case of termination of the Contract on the initiative of the Employee (at his own
request) without just cause, as well as in case of termination of the Contract on the initiative
of the Employer when the Employee's guilty actions are initiated, the Employee is obliged to
make a payment in favor of the Employer in the amount of 10,000,000 (ten million) rubles
(liquidated damages). The maximum amount of the Employee's liability to the Employer is
limited to the specified amount. The specified payment shall be made within 2 (two) months
from the date of termination of the Contract. The payment of the specified amount does not
exempt the Employee and his new football club from the application of sports sanctions
provided for by the regulations of FIFA and the FUR.’
90. After analysing the content of the aforementioned clause, the Chamber concluded that it did
not fulfil the criteria of reciprocity and proportionality, in line with the Chamber’s
longstanding jurisprudence, and therefore could not be taken into account for establishing
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the amount of compensation payable to Spartaks by the player. In particular, the Chamber
noted that the amount of RUB 10,000,000 (according to Spartaks corresponding to
approximately EUR 80,000) compared to the salary of the player, which at a maximum
corresponds to EUR 470 per month), can by no means be considered proportionate.
91. Following the above reasoning, the members of the Chamber again referred to the liquidated
damages clause as well as the considerations mentioned under par. 89. and 90. above and
considered that said clause shall not be upheld. As a result, the Chamber decided to not
upheld the proposed calculation of Spartaks that it should be awarded an amount of
compensation for breach of contract between EUR 41,400 and EUR 80,000, based on the
wording and interpretation of clause 7.5.2 and 7.6 of the contract with Krasava.
92. As a consequence, the Chamber determined that the amount of compensation payable by
the player to Spartaks 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 nonexhaustive enumeration of criteria to be taken into consideration when calculating the
amount of compensation payable.
93. Bearing in mind the foregoing as well as the claim of Spartaks, the Chamber proceeded with
the calculation of the monies payable to the player under the terms of the contract until its
term. Consequently, the Chamber concluded that the amount of EUR 41,400 (i.e. the 34.5
monthly salaries of EUR 1,200 each due by Spartaks to the player in the period between 13
February 2022 and 31 December 2024) serves as the basis for the determination of the
amount of compensation for breach of contract.
94. In continuation, the Chamber verified whether the player had signed an employment contract
with another club during the relevant period of time. According to the constant practice of
the Chamber, as well as art. 17 par. 1 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 due by a player to his former club. In particular, the
Chamber explained that its standard practice is to calculate the average between the player’s
remuneration with his former club and his remuneration with the new club, for the exact
same period of time comprised between the early termination of the employment contract
with the old club and the original expiry date of such contract.
95. Indeed, the player found new employment with Krasava on 14 February 2022. In accordance
with the pertinent employment contract, the player was entitled to receive a monthly salary
of RUB 34,483 (EUR 280) in the period between 14 February 2022 and 30 June 2022 and a
monthly salary of RUB 57,541 (EUR 470) in the period between 1 July 2022 and 30 June
2023, which corresponds – in the period between 14 February 2022 and the end date of the
contract with Spartaks, i.e. 31 December 2024 - to a total amount of approximately EUR
12,600.
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96. Thus, the Chamber concluded that between the date of early termination of the player’s
contract with his former club Spartaks and its original expiry date, the average between his
remuneration with Spartaks and his current remuneration under the contract with Krasava
amounts to EUR 27,000.
97. However, before entering into determining the exact amount of compensation for breach of
contract, which should be paid by the player to Spartaks, the Chamber deemed it relevant to
point out to the very particular circumstances in the matter at hand.
98. First of all, the members of the Chamber referred again to the chain of the different transfers
the player made in the period between the summer of 2021 and February 2022, and noted
that in the TMS there is no indication of the transfer from the player from Dinamo to Spartaks
at the beginning of September 2021. Moreover, also the second period of registration with
Spartaks, between January and February 2022, is not duly covered, as the ITC for the transfer
to Krasava in February 2022 was granted within the scope of a move of the player from Super
Nova to Krasava. The Chamber was not able to construct what reasons were behind this lack
of information available in the TMS, however, deemed that such circumstance should be
taken into account as a mitigating factor, as it could have contributed to the player eventually
terminating the contract, for which Spartaks is to be considered co-responsible to a certain
extend.
99. In addition, the Chamber deemed that also the behaviour of Spartaks (Spartaks’ owner, Mr
Trabucchi, was allegedly also involved in facilitating the respective transfers in his previous
role as agent of the player), was a mitigating factor to take into account, as this could have
also contributed to the lack of trust of the player in Spartaks and the consequent termination
of the contract on 13 February 2022.
100.Based on the above unique circumstances of the matter at hand, the Chamber deemed it
appropriate - in view of Spartak’s behaviour in the matter at hand and based on the discretion
the Chamber has to determine the consequences of a termination of a contract without just
cause - to conclude that the total amount of compensation for breach of contract that the
player has to pay to Spartaks, had to be reduced one third of the amount of EUR 27,000.
101.Consequently, on account of all of the above-mentioned considerations and the specificities
of the case at hand, the Chamber decided that the player must pay the amount of EUR 9,000
to Spartaks, which was to be considered a reasonable and justified amount of compensation
for breach of contract in the present matter.
102.Furthermore, taking into consideration Spartak’s request, as well as the constant practice of
the Chamber in this regard, the latter decided to award Spartaks interest on said
compensation at the rate of 5% p.a. as of 3 March 2022 until the date of effective payment.
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103.Lastly, in accordance with the unambiguous content of article 17 par. 2 of the Regulations,
the Chamber established that the player’s new club, i.e. Krasava, shall be jointly and severally
liable for the payment of compensation, plus applicable interest.
iii. Compliance with monetary decisions
104.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.
The player
105.First of all, the Chamber highlighted that, against players, the consequence of the failure to
pay the relevant amounts in due time shall consist of a restriction on playing in official matches
up until the due amounts are paid. The overall maximum duration of the restriction shall be
of up to six months.
106.Therefore, bearing in mind the above, the Chamber decided that the player must pay the full
amount due (including all applicable interest) to Spartaks within 45 days of notification of the
decision, failing which, at the request of Spartaks, a restriction on playing in official matches
for the maximum duration of six months shall become immediately effective on the player in
accordance with art. 24 par. 2, 4, and 7 of the Regulations.
107.The player shall make full payment (including all applicable interest) to the bank account
provided by Spartaks in the Bank Account Registration Form, which is attached to the present
decision.
108.The Chamber 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.
Krasava
109.Furthermore, 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.
110.Therefore, bearing in mind the above, the DRC decided that Krasava (being jointly liable for
the payment of the compensation for breach of contract due by the player to Spartaks), 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 Spartaks, a ban from registering
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REF FPSD-5338
any new players, either nationally or internationally, for the maximum duration of three entire
and consecutive registration periods shall become immediately effective on Krasava in
accordance with art. 24 par. 2, 4, and 7 of the Regulations.
111.Krasava shall make full payment (including all applicable interest) to the bank account
provided by Spartaks in the Bank Account Registration Form, which is attached to the present
decision.
112.The Chamber recalled that the above-mentioned bans 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
113.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.
114.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.
115.Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant / Counter-Respondent, FK Spartaks, is partially accepted.
2.
The Respondent 1 / Counter-Claimant, Matvei Ivakhnov, has to pay to the Claimant / CounterRespondent, the following amount(s):
- EUR 9,000 as compensation for breach of contract without just cause, plus 5% interest p.a.
as from 3 March 2022 until the date of effective payment.
3.
The Respondent 2, FC Krasava, is jointly and severally liable for the payment of the
aforementioned amount.
4.
Any further claims of the Claimant / Counter-Respondent 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:
Respondent 1 / Counter-Claimant:
1. The Respondent 1 / Counter-Claimant shall be restricted on playing in official matches,
up until the due amount is paid. The overall maximum duration of the restriction shall be
of up to six months on playing in official matches.
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 six months.
Respondent 2:
1. The Respondent 2 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.
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For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF FPSD-5338
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this
decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a
party within five days of the notification of the motivated decision, to publish an anonymised or a
redacted version (cf. article 17 of the Procedural Rules).
CONTACT INFORMATION
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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