Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed on 20 May 2020,
in the following composition:
Geoff Thom ps on (England), Chairman
Jérôm e Perlem uter (France), member
Angela Collins (Australia), member
on the claim lodged by the player,
Oleg Karnaukh, Ukraine
as Claimant
against the club,
S abah FC, Azerbaijan
represented by Ms Maria Tokmakova
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the cas e
1.
On 31 July 2019, the Ukrainian player Oleg Karnaukh (hereinafter: the Claimant or the
player) and the Azerbaijani club Sabah FC (hereinafter: the Respondent of the club)
concluded an employment contract valid as from the date of signature until 31 May
2022.
2.
In accordance with the contract, the Claimant would receive a total remuneration of
USD 90,000, payable follows:
- S eas on 2019/2020: USD 20,000 payable in 10 equal instalments of USD 2,000
from August 2019 to May 2020, always on the 10th day of the following month.
- S eas on 2020/2021: USD 30,000 payable in 10 equal instalments of USD 3,000
from August 2020 to May 2021, always on the 10th day of the following month.
- S eas on 2021/2022: USD 40,000 payable in 10 equal instalments of USD 4,000
from August 2021 to May 2022, always on the 10th day of the following month.
3.
The contract further stipulated that the aforementioned amounts were payable in
Azerbaijan New Manat (AZN).
4.
On 9 January 2020, the player lodged a claim at FIFA against the club for breach of
contract without just cause, requesting the following:
- that the DRC establishes that he terminated the contract with just cause;
- that the club should pay him the total amount of USD 97,716, plus interest of 5%
p.a. as from the due dates, broken down as follows:
- USD 78,000 as compensation for seasons 2019/2020, 2020/2021 and
2021/2022;
- USD 3,000 as compensation for fight tickets (2 tickets x 3 years);
- USD 16,716 as additional compensation (USD 78,000 / 28 remaining
contractual months = 2,786 x 6 = USD 16,716);
- that the DRC imposes on the club sanctions “in form of a fine and ban from
registering any new players, either nationally or internationally for two entire
and consecutive registration periods”.
5.
In his claim, the player argues that on 3 January 2020, as he returned to the club after
the winter break, the club started pressuring him to terminate the contract and
excluded him from the training of the first team.
6.
On 4 January 2020 he was allegedly provided with a “mutual termination agreement”
– which is on file but is not signed by the parties – and excluded from the training
camp in Turkey, which would take place on 8 January 2020.
7.
On 7 January 2020, fearing for his well-being and alleging to have some issues to solve
at university in Krasnodar, the player flew home to Russia, where he is currently living,
Player Oleg Karnaukh, Ukraine / Club Sabah FC, Azerbaijan
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and already in the plane informed the club in writing that “After all threats against
me from you and suspension from training, I do not intend to sign any agreement on
early termination of the contract by my consent. I inform you that I am forced to leave
Azerbaijan because of fear for my life. I also inform you that I intend to inform FIFA
about this case.”
8.
The player claims that up until the date he left he had been paid a total of 6 salaries.
9.
Finally, the player claims that “By forbidding to train with the main team and then by
submitting me to train with the second team just to pressure to terminate the
Contract without a severance pay and sign ‘the Termination of employment contract
by mutual consent’, the Club violates my right to effective occupation and my
personality rights”.
10.
In its reply to the claim, the Respondent held that as of December 2019 and after the
parties orally agreed on the principle that the player would find a new club due to his
alleged wish to play on the field, once the player came back after the winter break,
several WhattsApp messages had allegedly been exchanged in this sense with
representatives of the club and coaching team, during which a mutual termination
was drafted and suggested and, as well, the player kept the club informed of his wish
to find a new club. The club provided evidence of the aforementioned discussions.
11.
Therefore, the Respondent held that on 7 January 2020, when the player informed it
that he had a flight to solve an issue at university, it only provided the player with the
training program of the second team and did not expect to receive his termination
notice sent on the same day. The club also provided evidence of the foregoing.
12.
In this respect, the Respondent rejected the reasons of “threats to life and health”
invoked by the player in his termination as they were totally unsupported by any
evidence, as well as his alleged “suspension from training of the first team”, as the
trainings with the second team were merely linked to his wish to find another club, as
evidenced in the aforementioned WhattsApp correspondence.
13.
Moreover, the club points out that despite having asked the player for explanations,
to rejoin the team and of having warned him of the possible consequences of not
coming back via its emails of 15 and 17 January 2020, the player sustained that the
contract had been duly terminated.
14.
As such, despite its last attempt to get the player back to the team on 22 January 2020,
the Respondent explained that in its opinion “Taking into account that the Player did
not return to the Club and already on 9 January 2020 filed a Claim to the FIFA claiming
that he had terminated the Contract, for the purpose of this procedure, the Club
considers 7 January 2020, i.e. the date when the Player left Azerbaijan and informed
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the Club that he was not going to come back, to be the date of unilateral termination
of the Contract by the Player.”
15.
In this respect, the Respondent insisted on the fact that the player was not suspended
from training with the first team as mentioned above, training with the second team
was only temporary, he could have had access to the training facilities if he had
wanted to and the player was still paid his full wage. Therefore, the club’s conduct
could not constitute a just cause for the player to terminate the contract. On the
contrary, the Respondent underlined that due to the unexpected termination by the
player without a prior notice, it was the player who breached the contract by
terminating it without just cause. The club however did not lodge a counterclaim
against the player.
16.
Upon being requested by FIFA, the player explained that he remained unemployed
since the termination of the contract.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber
or DRC) analysed whether it was competent to deal with the case at hand. In this
respect, it took note that the present matter was submitted to FIFA on 9 January 2020.
Taking into account the wording of art. 21 of the 2019 edition of the Rules Governing
the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: the Procedural Rules), the aforementioned edition of the Procedural
Rules is applicable to the matter at hand.
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural
Rules and confirmed that in accordance with art. 24 par. 1 in combination with art. 22
lit. b) of the Regulations on the Status and Transfer of Players (edition 2020), the
Dispute Resolution Chamber is competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension between an
Ukrainian player and an Azerbaijani club.
3.
Furthermore, 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 (2020), and
considering that the present claim was lodged on 9 January 2020, the January 2020
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at
hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. The members of
the Chamber started by acknowledging the facts of the case, as well as the
Player Oleg Karnaukh, Ukraine / Club Sabah FC, Azerbaijan
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documentation 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.
In this respect, the Chamber first acknowledged that the Claimant and the Respondent
signed an employment contract valid as from 31 July 2019 until 31 May 2022, in
accordance with which, the Claimant would receive a total remuneration of USD
90,000.
6.
The Chamber further noted that the player on the one hand claims to have terminated
the employment contract with just cause on 7 January 2020, claiming that he had been
excluded from trainings, pressured to terminate the contract and feared for his life
and well-being. The Chamber also noted that the Respondent on the other hand
rejected the player’s claim pointing out that no evidence had been provided of the
accusations made against the club. In particular, the club argued that the parties were
in consensual discussions about a mutual termination of this contract, that the player
was never excluded from trainings, that he was never threatened in any manner and
that he left the club without any previous warning and consequently without any
valid reason.
7.
In view of the foregoing and of the diverging opinions of the parties, the Dispute
Resolution Chamber was of the opinion that the main issue at stake considering the
argumentation of both parties, was to determine whether the player had indeed had
a just cause to terminate the contract on 7 January 2020.
8.
The DRC also underlined that, subsequently, if it were found that the employment
contract was breached by one of the parties without just cause, it would be necessary
to determine the consequence for the party that caused the unjust breach of the
relevant employment contract.
9.
At this point, the DRC deemed it necessary to recall the content of art. 12 par.3 of the
Procedural Rules, according to which any party claiming a right on the basis of an
alleged fact shall carry the respective burden of proof.
10.
Bearing in mind the foregoing, the Chamber noted from the documentation on file
that the club presented the player with a termination agreement on 4 January 2020,
upon which the player proceeded to almost immediately board a flight back to Russia,
alleging that he had to go back in order to solve some personal issues. On 7 January
2020, the player sent the club a letter whereby he informed it that he would not
return to Azerbaijan, therefore de facto terminating the employment contract. In said
letter, the player mentioned that he was forced to leave the country as he feared for
his life.
Player Oleg Karnaukh, Ukraine / Club Sabah FC, Azerbaijan
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11.
At this point, the Chamber noted that the Claimant bore the burden of providing
evidence of the accusations he made against the club, which lead him to deem that he
had a just cause to terminate the contract. Nevertheless, it appears that the Claimant
did not provide any evidence of the alleged threats to his life and well-being, of the
club’s alleged pressure for him to terminate the contract and of the allegation that he
had been excluded from training. In addition, the player did not provide any evidence
of having made any complaints about the aforementioned accusations to the club, as
he did not send the club any default notice prior to the termination of the contract.
Furthermore, no amount of remuneration seems to have remained outstanding by the
time of termination.
12.
Furthermore, the Chamber noted that the club on the contrary provided a copy of an
email dated 7 January 2020 referring to the training scheduled for 8 January 2020
“with the duplicate team”, which indicates that the player was in fact not excluded
from training. Furthermore, the club provided evidence which appears to indicate that
the parties were discussing the termination of the contract on consensual terms. The
club also provided copies of two emails dated 15 and 17 January 2020, in which it
asked the player for explanations, requested him to re-join the team and warned him
of the possible consequences of not coming back.
13.
In continuation, the Chamber was eager to emphasise that only a breach or
misconduct which is of a certain severity justifies the termination of a contract without
prior warning. In other words, only when there are objective criteria which do not
reasonably permit to expect a continuation of the employment relationship between
the parties, a contract may be terminated prematurely. Hence, if there are more
lenient measures which can be taken in order for an employer to assure the
employee’s fulfilment of his contractual duties, such measures must be taken before
terminating an employment contract. A premature termination of an employment
contract can always only be an ultima ratio.
14.
In view of the above, the Chamber was of the opinion that the player did not provide
substantial evidence of the reasons given for the unilateral termination on 7 January
2020 and did not provide the club a reasonable opportunity to remedy any default
before putting an end to their contractual relationship. Thus, the Chamber was of the
opinion that the player did not have a just cause to terminate the employment
contract on 7 January 2020.
15.
In view of the foregoing, the Chamber decided to reject the claim of the player.
*****
Player Oleg Karnaukh, Ukraine / Club Sabah FC, Azerbaijan
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III.
Decision of the Dis pute Res olution Cham ber
The claim of the Claimant, Oleg Karnaukh, is rejected.
*****
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 relating 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
(cf. point 4 of the directives).
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
Player Oleg Karnaukh, Ukraine / Club Sabah FC, Azerbaijan
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Chief Legal & Compliance Officer
Player Oleg Karnaukh, Ukraine / Club Sabah FC, Azerbaijan
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