Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 31 October 2019,
in the following composition:
Geoff Thom ps on (England), Chairman
Roy Verm eer (The Netherlands ), member
Daan de Jong (The Netherlands ), member
on the claim presented by the player,
Iv an Milchov Karadzhov , Bulgaria,
represented by Mr Radostin Vasilev
as Claimant
against the club,
FC S hakhty or S oligors k, Belarus,
represented by Mr Timour Sysouev
as Respondent
Regarding an employment-related dispute between the parties
I.
Facts of the cas e
1. On 1 March 2017, the Bulgarian player, Ivan Milchov Karadzhov (hereinafter: the
Claimant or the player), and the Belarussian club, FC Shakhtyor Soligorsk (hereinafter:
the Respondent or the club) (hereinafter jointly referred to as the parties) signed an
employment agreement (hereinafter: the contract) valid as from the date of signature
until 31 December 2018.
2. According to Art. 8.1.3. of the contract, the player was entitled to obtain a monthly
salary of Belarusian Roubles (BYN) 18,462.95.
3. In addition, also on 1 March 2017, the parties signed a “Supplementary agreement No.1
to the terminal employment contract” (hereinafter: the Supplementary Agreement),
valid as from the date of signature until 31 December 2018.
4. As per Art. 8.1.6. of the Supplementary Agreement, the player was entitled to the
amount of BYN 137,940, payable as follows:
- BYN 68,970 by 1 June 2017;
- BYN 68,970 by 1 June 2018.
5. Art. 8.1.8. (2) of the Supplementary Agreement reads as follows: “Total amount of
payments for [Art. 8.1.3 of the contract] (monthly salary) after tax withholding and
other payments […] on the date of the payment is NET USD 8,000. According to article
8.1.6 – 2 installments in amount of NET USD 30,000 each instalment […]”.
6. By means of Art. 8.1.8. (3) of the Supplementary Agreement, “in case of essential (for
5% and more) deviations from the specified amounts in USD because of change of the
tax legislation of BYN exchange rate to USD, the [club] undertakes to make the
corresponding recalculation under this agreement about what the corresponding
supplementary agreement will be arranged”.
7. Art. 8.3. of the of the Supplementary Agreement stipulates the following: “Wages
stipulated in this contract is paid regularly by the [club] in the currency of the Republic
of Belarus on the 12th day of each month”.
8. Art. 4 of the contract lists the club’s responsibility, including:
a) “pay the [player] monthly wages in time, as well as to make other payments
according to this contract and other normative legal acts of the [club] to provide
necessary working conditions according to the present contract” (Art. 4.1);
b) “provide organizing of the playing and training process, to give training and
playing grounds” (Art. 4.2);
c) “ensure safe and healthy working conditions […] including the conditions of normal
and organization of training activities” (Art. 4.3);
Player Ivan Milchov Karadzhov, Bulgaria / FC Shakhtyor Soligorsk, Belarus
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d) “provide a stay during the period of practice and training sessions, in training camps
and during competitions” (Art. 4.4);
e) “provide restorative, therapeutic, medical and relaxation procedures aimed at
achieving the optimum competition from [the player]” (Art. 4.9).
9.
On 29 January 2018, the player complained to the club in writing that, even though
the club went on a training camp to Cyprus from 27 January until 10 February 2018,
he “was left behind, without any instructions or information by the club”.
Furthermore, the player requested the club to inform him in writing within 24 hours
“where and when the player shall appear for the start of the training camp and to
provide him with a plane ticket”.
10.
On 30 January 2018, 1 February 2018 and 6 February 2018, the player requested the
club in writing to “immediately reintegrate [him] to the first team […] or suggest a
reasonable solution of the specific situation”.
11.
In addition, on 2 February 2018, the player informed the Football Federation of
Belarus (FFB) in writing that he was separated from the team without receiving any
instructions, while on 5 February 2018, the player wrote a letter to the Cypriot hotel
“Atlantica Sungarden Beach Hotel”, holding that the team of the club is staying in
said hotel. The player further asked the hotel to submit all of his previous
correspondences to the club.
12.
Following another letter sent by the player on 8 February 2018, the club replied to the
player on 14 February 2018, informing him that “he left the location of the club and
our country without explanation […] which gives grounds to terminate the contract
with just cause”. The club further wrote that, “taking into account that in your letters
you indicate your […] wish to terminate the contract, we suggest considering its
termination by mutual agreement”.
13.
On that same day, 14 February 2018, the player replied to the club, informing it that,
by means of the club’s correspondence, it had “confirmed the receipt of all of [the
player’s] previous letters”. In said letter, the player further explained that he travelled
to Bulgaria because: “(i) the Club’s first team went for winter training camp in […]
Cyprus and left the player in Soligorsk; (ii) in the program announced by the club 27
and 28 January 2018 was non-working days […] After the club did not answered to
our letter dated 29 January 2018, and having in mind that the club did not gave any
further instructions to the player, [the player was advised] to stay in Bulgaria in order
to retain his form, until the club reintegrate him to the first team or gave him further
instructions”.
14.
In addition, in the same letter dated 14 February 2018, the player highlighted that on
13 and 14 February 2018, he was “instructed by the sports-technical staff […] to have
Player Ivan Milchov Karadzhov, Bulgaria / FC Shakhtyor Soligorsk, Belarus
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individual trainings. Nobody provided the player a training program. [He] trained
absolutely alone, without a coach”. The player further argued that he does not want
to terminate the contract, but that it is his “will to continue performing the contract,
but [the club does] not provide him such a possibility”.
15.
Finally, in said letter dated 14 February 2018, the player stated that he received only
part of his January 2018 salary in the amount of BYN 9,800. As per the player, the
“accounting department [of the club] told [him] that his salary for January was
reduced, because he did not attend the first team training camp in Cyprus.”
16.
Following another letter sent on 15 February 2018, the player sent his “Final Notice
Before Termination of Employment Contract” on 16 February 2018 to the club. In said
letter, the player inter alia held that the team went on a second training camp to
Turkey, but that he “was left in Soligorsk without any explanation”. The player further
gave the club a final deadline 48 hours to reintegrate him to the team.
17.
On 18 February 2018, the club informed the player in writing that on 10 January 2018
he was diagnosed with a meniscus injury, and that “such injury required individual
training process”. The club further highlighted that “for the reason of the injury, the
player was instructed to stay in Soligorsk […] Nevertheless, on 27th January the player
left the club and country without any authorization […] for more than 14 days, which
would be generally considered as a just cause for unilateral termination of his contract
by the club.” According to the club, his injury problem was not “solved completely
and the player must continue his recovery under doctor’s control. The reason for
withholding part of his salary is the absence of the player from the club for the period
27 January – 13 February […] which must be considered as unpaid leave.”
Furthermore, the club stated that if the player recovers from his injury, he “will be
given the opportunity to start full training process and to take part in the matches of
the club second team”. Finally, the club informed the player that he ”must come for
medicine check in the medicine room at the club facility […] on 19.02.2018 at 11:00”.
18.
On 19 February 2018, the player terminated the employment contract in writing. In
his termination letter, the player argued that on 26 January 2018, on his own initiative
he underwent an MRI. According to the player, the results showed that he was “fine”
and that the club’s “allegation about a meniscus problem are an absolute lie”. As per
the player, if he really was injured, why did the club not provide him “medical care
and individual trainings […] and for more than twenty days nobody from the club
[got] in touch”? Moreover, the player alleged that the club was “not in a position to
withhold a part of his salary”, given that he “requested many times to be
reintegrated”, and the club’s proposal to relocate him to the second team is “a clear
evidence that the [it] is not interested in [his] services”. Finally, the player requested
that the club pay him BYN 6,200 corresponding to the February 2018 salary.
Player Ivan Milchov Karadzhov, Bulgaria / FC Shakhtyor Soligorsk, Belarus
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19.
Also on 19 February 2018, the club replied to the player’s termination letter, holding
that it was “surprised to receive today your notice of termination”. In this context, the
club stated that it expects “that the player will attend the medical tests to prove his
recovery from the injury and then continue his employment with the club”.
20.
On 23 February 2018, the player joined the Bulgarian club, FC Arda Kardzhali. As per
the player, he “did not sign a contract with FC Arda Kardzhali as is non-professional
club with status of amateur and the [player] is not receiving remuneration for his
services”.
21.
The aforementioned transfer does not appear in the Transfer Matching System (TMS).
22.
On 14 March 2018, the player lodged a claim for breach of contract and requested the
payment of the following amounts:
a) USD 8,508.57 “net” as outstanding salary, plus 5% interest p.a. as follows:
i) On the amount of USD 3,080 corresponding to “part of the January
salary” as from 13 February 2018;
ii) On the amount of USD 5,428.57 corresponding to the “remaining salary
of February 2018” as from 20 February 2018.
b) USD 112,571.42 “net” as compensation for breach of contract, plus 5% interest
p.a. as from “19 February 2019”, as follows:
i) USD 2,571.42, corresponding to the period 20 February 2018 until 28
February 2018;
ii) USD 80,000, corresponding to the 10 monthly salaries as from March
2018 until December 2018 of USD 8,000 each;
iii) USD 30,000, in accordance with Art. 8.1.6. of the Supplementary
Agreement in combination with Art. 8.1.8. (2) of the Supplementary
Agreement.
23.
The player further requested the imposition of sporting sanctions against the club.
24.
According to the player, on 11 January 2018 he was informed by the club that it did
“not want to continue paying his salary and will use young goalkeepers from Belarus”.
25.
The player submitted that in the period 11 January 2018 until 27 January 2018, he
continued training with the first team, but that he had been informed “a couple of
time” by the club that it will not require his services in the future.
26.
The player held that from 27 January 2018 until 10 February 2018 the club went on a
training camp in Cyprus, but that he was told by the club to remain in Belarus “without
any instructions or explanation” and referred to the club’s website pages dated 29
Player Ivan Milchov Karadzhov, Bulgaria / FC Shakhtyor Soligorsk, Belarus
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January 2018 and 30 January 2018 respectively, which listed the names of the 23
players who travelled to Cyprus, and which did not include the name of the player
27.
According to the player, between 27 January 2018 and 10 February 2018, he travelled
to Bulgaria on his own account in order to train.
28.
As per the player, between 29 January 2018 and 14 February 2018, he tried numerous
times to reach out to the club, including by sending letters via the Football Federation
of Belarus and the hotel where the team was allegedly staying, but that the club never
replied.
29.
In this context, the player argued that by excluding him, he was “facing irreparable
harm as regards his future chances of finding another club of high level after the
expiry of the contract”.
30.
In this regard, the player highlighted that, once back at training with the club on 13
and 14 February 2018, he had to train alone without receiving any instructions from
the club.
31.
The player further highlighted that on 15 February 2018 the club went on a training
camp in Turkey, but that he again not summoned to join, and that he was not given
any further instructions by the club. Thus, as per the player, he was once again having
to train alone.
32.
In this light, the player emphasized that the club had the duty to provide work, inter
alia referring to Art. 4 of the contract.
33.
Therefore, as per the player, by withholding him “for 24 days from all of [the club’s]
activities […], and by not providing the necessary training conditions and
instructions”, the club breached its contractual obligations.
34.
Moreover, the player argued that the period from 27 January 2018 until 19 February
2018 “forms part of what is considered to be a crucial phase of preparation for the
forthcoming season, during which all players are required to display their
performance, in order to be able to undergo a selection by the club’s coach for the
new season”.
35.
With regard to the alleged outstanding salary of USD 8,508.57 “net” , the player
argued that he was entitled to a monthly net salary of USD 8,000 in accordance with
Art. 8.1.8. (2) of the Supplementary Agreement.
36.
Having said this, the player explained that on 14 February 2018 he received BYN 9,800,
which, according to the player, amounted to USD 4,920 “pursuant to the exchange
rate of the National Bank of Belarus”. Therefore, as per the player, the remaining part
of January 2018 amounted to USD 3,080 “or the equivalent of BYN 6,134”and
Player Ivan Milchov Karadzhov, Bulgaria / FC Shakhtyor Soligorsk, Belarus
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provided an abstract of his bank balance, dated 14 February 2018, as well as a
screenshot of a currency exchange website, dated 14 February 2018, which stipulated
that USD1 equals BYN 1.99.
37.
Furthermore, the player held that for the period of 1 February until 19 February 2018,
the club has to pay him outstanding remuneration in the amount of USD 5,428.57,
“which became payable as of the termination of the contract”.
38.
In its reply to the player’s claim, the club firstly submitted that it had never informed
the player that it was unwilling to pay his salaries.
39.
Instead, as per the club, in the middle of January 2018 the player was informed that
“he will be playing as backup goalkeeper”, and that “it would not be beneficial for
him to proceed as backup goalkeeper”. Moreover, the club held that it was “ready to
assist him in finding the other club” and provided a “Witness Testimony” from the
club employee, “Hohlov”, (hereinafter: “Hohlov’s Testimony”).
40.
In this context, the club stated that on 23 January 2018, it attempted to contact the
agent of the player via email, “but did not receive any response”.
41.
According to the club, the player was “willing to transfer to another club” and “was
doing everything to achieve that”.
42.
In continuation, the club submitted that, following the winter break, on 10 January
2018, the player complained about pain “in the area under his right knee”, and that
“at that period […] the player was not training with the team, but had individual
trainings” and provided a “Witness Testimony” from the club employee
“Abramovich”.
43.
According to the club, on 26 January 2018, the player underwent an MRI scan, “the
results of which confirmed the trauma” and provided a copy of a “Magnetic resonance
tomography examination”.
44.
Therefore, as per the club, “due to coaching decision, obvious injury from the
beginning of January 2018 and inability of the player to train at full capacity for at
least two weeks, he was not summoned for the training camp on 27 January 2018 and
was instructed to stay in Soligorsk” and referred to “Hohlov’s Testimony”.
45.
According to the club, following the club’s return from Cyprus and the player’s return
from Bulgaria, on 13 February 2019, the player’s “trauma was assessed for the second
time who came to the conclusion that he is not fully cured yet and the degree of his
physical condition will not allow him to train with the team at full capacity” and
referred to “Hohlov’s Testimony”.
46.
In continuation, the club held that the player “ceased to attend trainings on 14
February 2018”, and that he did not show up for his medical assessment on 19
February 2018 told by the club in its correspondence dated 18 February 2018.
Player Ivan Milchov Karadzhov, Bulgaria / FC Shakhtyor Soligorsk, Belarus
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47.
In fact, as per the club, by 20 February 2018, the player “was training in Bulgaria with
the other club” and provided an internet screenshot, dated 20 February 2018, showing
a picture of football players in training, followed by the text: “Keeper Ivan Karadzhov
trains together with Arda players”.
48.
With regards to the player’s alleged unauthorized absences, the club stated that the
player had already been absent from training at the club on 25 January 2018, prior to
his unauthorized travel to Bulgaria on 27 January 2018 and provided an in-house
“timesheet”, which allegedly indicates that the player was absent on 25 and 26
January 2018.
49.
Consequently, according to the club, due to the player’s two unauthorized absences
(i.e. “from 27 January 2018 until 13 February 2018 [and] from 15 February 2018 until
6 March 2018”, the club sent a letter to the player on 6 March 2018, informing him
that the employment contract was terminated.
50.
In addition, the club highlighted that the contract “does not prescribe any obligation
[for the club] to mandatory taking of the player to any of the training camps”. As per
the club, Art. 4.4 of the contract (cf. point 8d) above) “is merely an obligation to
provide the player with the tickets and accommodation in case the player will be
selected by the coach to go for a training camp”.
51.
Furthermore, the club submitted that it complied with the other obligations set on
Art. 4 of the contract, given that, once the club “became aware of the [player’s] injury,
the player was immediately treated by medical personal, who also contacted the
insurance company to arrange for the MRI test […] After the injury was confirmed,
the [player] was left at [the club] to recover from the injury. The player was provided
with everything necessary for living and recovery – accommodation on the basis of
the club, 3 meals daily, a gym, a laundry room, and a medical office equipped with
everything necessary for recovery. Medical and coaching staff of the second team was
present at [the club]” and referred to “Hohlov’s Testimony”.
52.
With regard to the player’s January 2018 salary, the club argued that he worked “13
days for 8 hours and 1 day for 3 hours, which totals 107 working hours instead of the
required 173 hours”. For this reason, the amount of his salary in January was BYN
11,412.74 instead of BYN 18,462.05. Taking into account the deductions […] which
amounted to BYN 1,601.30, the total amount of salary constituted BYN 9,811.44” and
a “Payroll sheet of January 2018”.
53.
Given all of the above, the club concluded that it terminated the contract with the
player on 6 March 2018 with just cause, while the player terminated the contract on
19 February 2018 without just cause. Furthermore, the club rejected all of the player’s
claims.
Player Ivan Milchov Karadzhov, Bulgaria / FC Shakhtyor Soligorsk, Belarus
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54.
In his replica, the player firstly denied that he was informed by the club in mid-January
2018 that “he will be playing as backup goalkeeper”, and that “it would not be
beneficial for him to proceed as backup goalkeeper”.
55.
In this regard, the player argued that the testimony reports provided by the club
“were created by [the club]” and “are not objective”.
56.
The player further repudiated that he was “willing to transfer to another club”, as the
club had held. As per the player, the fact that he attempted to be reinstated with the
team on numerous occasions demonstrated that he wanted to “perform his side of
the contract”.
57.
Similarly, according to the player, had the club been interested in his services, it would
have contacted him sooner than on 14 February 2018.
58.
Moreover, the player held that he never negotiated with the Bulgarian club “Pirin”.
According to the player, “none professional player would substitute [the club] to play
in Pirin, where the [player] would receive much lower remuneration”.
59.
Furthermore, according to the player, he passed the medical exams with the “nonprofessional club” FC Arda, “which confirmed that he is in perfect physical form”.
60.
In this regard, the player argued that the MRI results of 26 January 2018 were not the
reason for not inviting him to training camp, given that he was already told on 23
January 2018 that he was not invited, i.e. three days before the MRI.
61.
In continuation, the player referred to the club’s allegation that he “was provided
with everything necessary for living and recovery”, and reiterated that the club left
him no instructions whatsoever.
62.
With regard to the club’s argument that the player was entitled to only part of his
January 2018 salary for hours worked, the player argued that the club itself prevented
him from effectively fulfilling his contractual obligations. Furthermore, the player
disagreed with the allegation salary for professional football players in general is to
be calculated on the basis of working hours.
63.
In its duplica, the club firstly argued that the player’s allegation that the club did not
want to pay the player’s salary anymore is untrue, as is demonstrated by the fact that
it paid him his January 2018 salary “in the due amount and order”.
64.
According to the club, if the player disagreed with what allegedly stated by the club,
“he should have sent the letter expressing his disagreement […] right after the
conversation with [the club] in the very beginning of January and not at end of
January (29 January), only when he became aware that he is not attending the camp”.
Player Ivan Milchov Karadzhov, Bulgaria / FC Shakhtyor Soligorsk, Belarus
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II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the DRC analysed whether it was competent to deal with the case at hand.
In this respect, the Chamber took note that the present matter was first submitted to
FIFA on 14 March 2018. Consequently, the 2018 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21 of
the Procedural Rules).
2.
Subsequently, the DRC referred to art. 3 par. 1 of the Procedural Rules and confirmed
that, in accordance with art. 24 par. 1 in conjunction with art. 22 lit. b) of the
Regulations (October 2019 edition), it is competent to decide on the present litigation,
which concerns an employment-related dispute with an international dimension
between a Bulgarian player and a Belarussian club.
3.
Furthermore, the DRC analysed which edition of the Regulations should be applicable
as to the substance of the matter. In this respect, the Chamber confirmed that, in
accordance with art. 26 par. 1 and 2 of the Regulations (October 2019 edition) and
considering that the present matter was submitted to FIFA on 14 March 2018, the
January 2018 edition of said Regulations is applicable to the present matter as to the
substance.
4.
The competence of the DRC and the applicable regulations having been established,
the Chamber entered into the substance of the matter. In doing so, it started to
acknowledge the facts of the case as well as the documents contained in the 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.
5.
Having said this, the Chamber proceeded with an analysis of the circumstances
surrounding the present matter, the parties’ arguments as well as the documentation
on file, bearing in mind art. 12 par. 3 of the Procedural Rules, in accordance with which
any party claiming a right on the basis of an alleged fact shall carry the burden of
proof.
6.
In this respect, the DRC acknowledged that it was undisputed by the parties that the
Claimant and the Respondent had signed a contract as well as a supplementary
agreement on 1 March 2017, both valid as from the date of signature until 31
December 2018.
7.
The DRC recalled that in accordance with the contract and the supplementary
agreement, the player was entitled inter alia to the total monthly remuneration of
Player Ivan Milchov Karadzhov, Bulgaria / FC Shakhtyor Soligorsk, Belarus
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BYN 18,462.95 as well as two installments of BYN 68,970 each, payable on 1 June 2017
and 1 June 2018. In this respect, the Chamber took note of the supplementary
agreement providing that the conversion of the aforementioned amounts in net USD
corresponded to USD 8,000 as a salary and USD 30,000 as the two installments,
however payable to the player in local currency, on the 12th day of each month as for
the monthly salary.
8.
The DRC further took note of the club’s obligations towards the player, among which,
it would : “pay the [player] monthly wages in time, as well as to make other payments
according to this contract and other normative legal acts of the [club] to provide
necessary working conditions according to the present contract” (Art. 4.1); “provide
organizing of the playing and training process, to give training and playing grounds”
(Art. 4.2); “ensure safe and healthy working conditions […] including the conditions
of normal and organization of training activities” (Art. 4.3); “provide a stay during
the period of practice and training sessions, in training camps and during
competitions” (Art. 4.4); and “provide restorative, therapeutic, medical and relaxation
procedures aimed at achieving the optimum competition from [the player]” (Art. 4.9).
9.
In continuation, the Chamber took note that it is undisputed by the parties involved
that the club went on training camp to Cyprus as from 27 January 2018 until 10
February 2018, without inviting the player. Similarly, the Chamber also underlined
that it is undisputed that the club went on training camp to Turkey from 15 February
2018 until 6 March 2018, again without inviting the player.
10.
In addition, the Chamber also understood that while the club was on its first training
camp, the player travelled to Bulgaria, allegedly to train for himself. In parallel, the
Chamber also took note that between 29 January 2018 and 19 February 2018, the
player sent a total of 9 letters, followed by the termination letter. In continuation, the
Chamber noted that, for its part, the club replied 3 times, namely on 14 February 2018,
18 February 2018, and 19 February 2018. As a consequence, the Chamber also
understood that the player joined the Bulgarian club FC Arda on 23 February 2018,
said transfer being not available in the Transfer Matching System (TMS), i.e. the player
joined said club as an amateur.
11.
The Chamber then reviewed the claim of the player, who requested the total amount
of USD 121,079.99, as follows: USD 8,508.57 as outstanding remuneration
corresponding to part of the January (USD 3,080) and February (USD 5,428.57) 2018
salaries, and USD 112,571.42 as compensation for breach of contract. In addition, the
Chamber took note of the player’s request as to be awarded interest over the
aforementioned sums, as well as sporting sanctions to be imposed on the club.
Player Ivan Milchov Karadzhov, Bulgaria / FC Shakhtyor Soligorsk, Belarus
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12.
The Chamber further took note of the argumentation of the Claimant who held that
he had been informed as form January 2018 of the club’s wish not to count on him
anymore for the future, that he had been excluded from two consecutive training
camps with the club, that despite his will to continue training, he had been either left
with no training instructions nor training conditions or sent to train alone and, finally,
the Chamber took note of the fact that the player deemed that any information
resulting from the MRI he underwent had no influence on the club’s aforementioned
decisions. In addition, the Chamber took note of the player’s calculations as to the
claimed outstanding salaries
13.
Moreover, the DRC took note of the Respondent’s arguments in reply to the
Claimant’s claim. In this respect, the DRC recalled that the club sustained that, to the
contrary of what held by the player, he had been informed as form January 2018 that
he would be playing as a backup goalkeeper, and therefore that he would be assisted
to find a new club. Moreover, the Chamber further took note that in the club’s view,
the player had access to the training facilities and the medical and coaching staff of
the second team, basing itself on the witness statement. Furthermore, the club held
that due to the injury the player was suffering from the beginning of January 2018, it
could not take him with the rest of the team to the training camps and left him with
all necessary instructions and conditions to train and medically recover from his injury,
at its premises, with the second team. In this respect, the Chamber underlined the
club’s position as to the fact that in its opinion, it terminated the contract on 6 March
2018, with just cause, to the contrary of the player who terminated the contract on
19 February 2018, without just cause. Finally, the Chamber also noted the club’s
arguments as to the paid salaries which, in its opinion, had been duly calculated.
14.
In view of the foregoing and of the diverging opinions of the parties, the Dispute
Resolution Chamber was of the opinion that the issue at stake, considering the claim
lodged by the player against the club, was to determine whether the employment
contract had been unilaterally terminated with or without just cause by the player on
19 February 2018, and, subsequently, to determine the consequences thereof.
15.
Having said that, and reviewing the argumentations of both parties, the DRC recalled
that in the club’s view, it had allegedly informed the player, as mentioned in the club’s
witness statement, that he would be playing as a backup goalkeeper and would be
assisted to find a new club. Moreover, the Chamber underlined that the player had
been told not to attend the training camps and, despite his several requests, the club
only replied to the player’s seventh letter, on 14 February 2018, by suggesting him to
terminate the contract by mutual agreement. In addition, the Chamber also noted
that the club paid part of the player’s salary for January 2018 deeming that it
corresponded to the work provided, and, in the contrary, it did not pay him anything
for February 2018.
Player Ivan Milchov Karadzhov, Bulgaria / FC Shakhtyor Soligorsk, Belarus
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16.
Furthermore, the Chamber recalled that the player sent a total of 9 letters to the club
in which he indicated that he wanted to continue playing for the club. In continuation,
The DRC observed that despite having left for Bulgaria instead of staying at the club’s
facilities in Belarus, the player appeared to have signed after termination as an
amateur with his new club, meaning that he appears to have started earning less than
at the club.
17.
As a consequence of the aforementioned considerations, and considering that despite
its allegations, the club did not submit a counterclaim, the Chamber came to the
conclusion that the club, despite the player’s genuinely interest in continuing the
employment relationship, clearly showed for its part a lack of interest in continuing
the employment relationship.
18.
Furthermore, the DRC noted as well that during the training camps, according to the
club and based on the provided witness statement, the player had access to the
training facilities and the medical and coaching staff of the second team. However, in
accordance with the player’s allegations sustaining that the club left him no training
instructions whatsoever, the Chamber underlined that the club failed to provide
conclusive evidence as to said instructions and, therefore, deemed that during the
period that the club was on training camp, the player was not still able to carry out
work as a professional football player
19.
In continuation, the Chamber examined the copy of the MRI scan results provided by
the club and deemed that the player was possibly suffering from some sort of injury.
However, the Chamber held that the club did not provide evidence that this injury
made it impossible for the player to attend the training camps with the rest of the
team. In particular, the Chamber underlined that the player had trained with the team
from 11 January until 27 January 2018, and, in addition, that one could even argue
that it would have been better for the player to recover from the injury attending the
training camp, with all the staff present, than to train alone. Therefore, in the
Chamber’s opinion, taking into account the club’s allegation that the player was
injured, it did not act in accordance with what is expected in case a player is injured.
20.
Consequently, on account of the preceding considerations, the Chamber stated that
the Respondent had seriously neglected its contractual obligations towards the
Claimant. Therefore, the Chamber concluded that the Respondent was found to be in
breach of the contract and that, in line with the Chamber’s longstanding and wellestablished jurisprudence the breach was of such seriousness that the Claimant had
just cause to unilaterally terminate the employment contract with the Respondent on
19 February 2018. Consequently, the Chamber decided that the Respondent is to be
held liable for the early termination of the contract with just cause by the Claimant.
21.
In continuation, prior to establishing the consequences of the termination of the
contract with just cause by the Claimant, the Chamber decided that the Respondent
Player Ivan Milchov Karadzhov, Bulgaria / FC Shakhtyor Soligorsk, Belarus
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must fulfil its obligations as per the contract in accordance with the general legal
principle of “pacta sunt servanda”.
22.
On account of the aforementioned considerations, the DRC established that the
Respondent is liable to pay to the Claimant outstanding remuneration, in particular,
as agreed upon the contract and the supplementary agreement.
23.
In this respect, the DRC recalled that the player requested USD 8,508.57 as outstanding
remuneration. As regards to the partial salary of January 2018, the DRC understood
that the player claimed that he received BYN 9,800, while the club held that the player
received BYN 9,811. In this regard and according to the bank balance provided by the
player, the Chamber noted that he obtained BYN 9,811.
24.
In continuation, the Chamber deemed that the aforementioned amounts were
indicated in the contract and the supplementary agreement in Belarusian Roubles as
a gross amount, the amount mentioned in USD being a net amount. Consequently,
the player having claimed in net USD amounts, the Chamber accepted to grant
outstanding remuneration in USD because granting the amounts in BYN gross would
be ultra petitum.
25.
Consequently, the Chamber concluded that the outstanding remuneration amounts
to USD 3,080 for January 2018 and, as regards February 2018, the Chamber held that
the player was entitled to salary up until 19 February 2018, which, on a Pro Rata basis
would equal to USD 5,429. The Chamber deemed however that the amount requested
by the Claimant pertaining to the salary for the month of February 2018 should be
part of the compensation due to him.
26.
Finally, the Chamber rejected the club’s argument that the player is entitled to salary
for hours worked.
27.
In continuation and with regard to the Claimant's request for interest, the DRC
decided that the Claimant is entitled to receive interest at the rate of 5% p.a. on the
outstanding amount of USD 3,080, as from 13 February 2018 until the date of effective
payment.
28.
Having established that the Respondent is to be held liable for the early termination
of the employment contract with just cause by the Claimant, the Chamber further
decided that, taking into consideration art. 17 par. 1 of the Regulations, the Claimant
is entitled to receive from the Respondent compensation for breach of contract in
addition to the aforementioned outstanding remuneration.
29.
In this context, 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
Player Ivan Milchov Karadzhov, Bulgaria / FC Shakhtyor Soligorsk, Belarus
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existing contract up to a maximum of five years, and depending on whether the
contractual breach falls within the protected period.
30.
In application of the relevant provision, the Chamber held that it 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. In this regard, the Chamber
established that no such compensation clause was included in the contract at the basis
of the matter at stake.
31.
As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Respondent to the Claimant had to be assessed in
application of the other parameters set out in art. 17 par. 1 of the Regulations. The
Chamber recalled that said provision provides for a non-exhaustive enumeration of
criteria to be taken into consideration when calculating the amount of compensation
payable. Therefore, other objective criteria may be taken into account at the
discretion of the deciding body.
32.
The members of the Chamber then turned their attention to the remuneration and
other benefits due to the Claimant under the existing contract and/or the new
contract, which criterion was considered by the Chamber to be essential. The members
of the Chamber deemed it important to emphasise that the wording of art. 17 par. 1
of the Regulations allows the Chamber to take into account both the existing contract
and the new contract in the calculation of the amount of compensation.
33.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of the
monies payable to the Claimant under the terms of the employment contract as from
its termination and concluded that the Claimant would have received USD 118,000 as
remuneration had the employment relationship been executed until its regular expiry
date of 31 December 2018, i.e. considering as well the salary of February 2018
originally requested as outstanding remuneration. Consequently, the Chamber
concluded that the amount of USD 118,000 serves as the basis for the final
determination of the amount of compensation for breach of contract in the case at
hand.
34.
In continuation, the Chamber assessed as to whether the Claimant has signed an
employment contract with another club during the relevant period of time, by means
of which he would have been able to reduce his loss of income. According to the
constant practice of the DRC, such remuneration under a new employment contract(s)
shall be taken into account in the calculation of the amount of compensation for
breach of contract in connection with the player’s general obligation to mitigate his
damages.
35.
The Chamber recalled that, after termination of the contract, the Claimant was not
able to mitigate his damages, as he concluded an employment contract as an amateur.
Player Ivan Milchov Karadzhov, Bulgaria / FC Shakhtyor Soligorsk, Belarus
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36.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the Respondent must pay
the amount of USD 118,000 to the Claimant as compensation for breach of contract.
37.
In addition, taking into account the Claimant’s request as well as the constant practice
of the Dispute Resolution Chamber in this regard, the Chamber decided that the
Respondent must pay to the Claimant interest of 5% p.a. on the amount of
compensation as of the date on which the claim was lodged, i.e. 14 March 2018, until
the date of effective payment.
38.
The DRC concluded its deliberations in the present matter by establishing that any
further claims lodged by the Claimant are rejected.
III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Ivan Milchov Karadzhov, is partially accepted.
2.
The Respondent, FC Shakhtyor Soligorsk, has to pay to the Claimant, w ithin 30 day s
as from the date of notification of this decision, outstanding remuneration in the
amount of USD 3,080, plus interest at the rate of 5% p.a. as from 13 February 2018
until the date of effective payment.
3.
The Respondent has to pay to the Claimant, w ithin 30 day s as from the date of
notification of this decision, compensation for breach of contract in the amount of
USD 118,000, plus 5% interest p.a. as from 14 March 2018 until the date of effective
payment.
4.
In the event that the amounts plus interest due to the Claimant in accordance with
the above-mentioned points 2. and 3. are not paid by the Respondent within the
stated time limits, the present matter shall be submitted, upon request, to the FIFA
Disciplinary Committee for consideration and a formal decision.
5.
Any further claim lodged by the Claimant is rejected.
Player Ivan Milchov Karadzhov, Bulgaria / FC Shakhtyor Soligorsk, Belarus
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6.
The Claimant is directed to inform the Respondent immediately and directly of the
account number to which the remittances are to be made and to notify the Dispute
Resolution Chamber of every payment received.
*****
Note related to the publication:
The FIFA administration may publish decisions issued by the Players’ Status Committee or
the DRC. Where such decisions contain confidential information, 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 Rules Governing the Procedures
of the Players’ Status Committee and the Dispute Resolution Chamber).
Note related to the appeal procedure:
According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to
the CAS directly within 21 days of receipt of notification of this decision and shall contain
all the elements in accordance with point 2 of the directives issued by the CAS. Within
another 10 days following the expiry of the time limit for filing the statement of appeal,
the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal
with the CAS.
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Player Ivan Milchov Karadzhov, Bulgaria / FC Shakhtyor Soligorsk, Belarus
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