Dispute Resolution Chamber
Texto da decisão
REF 20-01550
Decision of the
Dispute Resolution Chamber
Passed on 29 April 2021,
regarding an employment-related dispute concerning the player Karasev Patel
COMPOSITION:
Clifford J. Hendel (USA/France), Deputy Chairman
Muzammil Bin Mohammed (Singapore), Member
Stéphane Burchkalter (France), Member
CLAIMANT:
FC Shakhter, Kazakhstan
RESPONDENT 1:
Karasev Patel, Russia
RESPONDENT 2:
FC Tambov, Russia
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I. FACTS
1.
On 8 and 9 July 2020, the Claimant and the player concluded an employment contract dated
6 July 2020 (hereinafter: the contract), valid as from the date of signature until 24 November
2021.
2.
According to the contract, the Claimant was entitled inter alia to the following remuneration
and benefits:
3.
Further, clause 7.4. and 7.5. established a compensation (of 3 monthly salaries) in case of
unilateral termination of the contract, as follows:
4.
On 29 July 2020, the Russian media announced the signing of the player “And midfielder
Pavel Karasev will join the ranks of FC Shakter from Karaganda”.
5.
On 30 July 2020, the Claimant sent a letter (which was titled “Claim of Violation of obligations
under the Employment Contract”) to the player inter alia indicating the following:
“you were supposed to start working on July 26, 2020, but up until now, you have not arrived
at the team´s location, and in the conversation on over the phone, you said that you did not
want to play for FC Shakhter”.
6.
Furthermore, the Claimant informed the Player that “within three (3) days after the receipt
of this letter, to: 1) (…) 2) contact the management of FC Shakhter regarding your entry the
Republic of Kazakhstan to perform your job duties under the Employment Contract”
otherwise the claim would assume that the player “have terminated it [the contract]
unilaterally”.
7.
The player did not reply to said letter.
8.
On 5 August 2020, the Claimant sent a new letter (which was titled “Repeated Claim of
Violation of Obligations under the Employment Contract”) to the player requesting “to
eliminate the breach of the Employment Contract” and to “contact the management of FC
Shakhter” to perform his contract.
9.
On 7 August 2020, the FC Tambov and the player concluded an employment contract, valid
as from the date of signature until 31 May 2021.
10. On 8 August 2020, the player participated in the Russian Premier Liga match FC Tambov vs
FC Rostov.
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11. On 10 August 2020, the Claimant sent a letter (which was titled “On Significant Violation of
the Employment Contract”) to the player and the Second Respondent stating inter alia that
“the behaviour of the Player and FC Tambov absolutely unacceptable. Under present
circumstances, the Player and FC Tambov shall be jointly and severally liable to FC Shakhter
for payment of the compensation which will be awarded by FIFA”.
12. On 12 August 2020, the Second Respondent, Tambov FC, replied, in essence, stating the
following:
“FC Tambov is in total perplexity and lacks understanding of the essence of the letter. FC
Tambov did not have and does not have any information about the fact that Pavel Karasev
has entered into an employment contract with any professional club. Therefore, FC Tambov
could not induce the player to breach the employment contract concluded with Pavel Karasev
during the employment relations with him”.
13. The player never replied to any of the correspondence sent by the Claimant.
14. On 9 November 2020, The Football Union of Russia confirmed that the player was registered
with FC Tambov as a professional as of 7 August 2020.
15. On 23 October 2020, Shakhter lodged a claim against the player and FC Tambov for breach
of contract without just cause, noting that the player signed a contract with the latter despite
being bound by a contract with Shakhter. The Claimant underlined in this respect that a
player cannot be registered for more than one club at a time, and therefore he terminated
the contract without just cause.
16. In his claim, the Claimant held that the player never replied to any of its correspondence.
17. The Claimant also stated that it was clear that the player had signed an employment contract
with FC Tambov.
18. Referring to Swiss law, the Claimant held that an agreement must contain the following
elements to be valid: a work to be performed, in service of an employer and a remuneration
to be paid for the services provided. The Claimant considers that the contract in the present
matter contains all the essentialia negotii, meaning that a binding contractual relationship
existed between the Claimant and the player.
19. The Claimant further argued that the player signed a contract with a new club and failed to
fulfil his duties which constitutes a clear breach of contract. In this context, the Claimant
emphasised that it had granted the player many opportunities to comply with his obligations.
Despite the foregoing, the player never replied to the Claimant’s correspondence.
20. Therefore, the Claimant considered that the player terminated the contract without just
cause and that FC Tambov should be held jointly liable.
21. In light of the above, the Claimant requested following:
(i)
KZT 15,795,000 as compensation for the breach of the contract;
(ii)
Interest of 5% p.a. as of 9 October 2020 until the date of effective payment;
(iii)
Sporting sanctions against the player (suspension of 6 months) and FC Tambov
(transfer ban for 2 registration periods).
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22. In reply to the claim of the Claimant, the player acknowledged that he signed a “preliminary”
employment proposal with the Claimant (“Le 8 juillet Karasev à signé la version proposée
comme accord préliminaire avec les conditions proposées”) but he denied to sign a final
employment agreement. The player also admitted that after be approached by a
representative of the Claimant, he concluded a new employment contract with the Second
Respondent.
23. However, the player claimed that any contract or agreement with the Claimant is not valid
inter alia for the following reasons:
o
o
o
o
o
o
The player was approached by an unlicensed intermediary of the Claimant (a professional
player of FC Bruzhba “le joueur professionnel Konstantin Belov”, and, also, a former
player of Shakther - “Evgeny Tarasov, un ancient joueur de Shakhter”, cf. point 8 of the
answer of the player);
during the negotiation phase and signature of the proposal, it was used an unofficial
address, i.e. [email protected] instead of the club’s official email address
[email protected].
the unlicensed intermediary (i.e. Mr Belov) proposed him to be involved in a match
manipulation scheme (Note: no evidence provided – Cf. points 16 to 20 of the answer of
the player);
consequently, he decided to reject the possibility of playing for Shakhter. (“20. (…)
Cependant, Karasev a decidement refuse toute relation avec Shakhter a cause des risques
de corruptions”);
referring to Swiss and Kazakh law, the player held that the agreement was not signed by
in manuscript by the player nor by valid digital signature;
as mentioned above, Shakhter approached the player via an unlicensed intermediary,
further the Claimant did not inform FC Tambov about the relevant negotiations with the
player nor receive the respective ITC, in a clear infringement of the relevant FIFA
regulations.
24. In light of all the above mentioned, the player informed the Claimant of his decision of not
joining the club on 22 July 2020.
25. Lastly, the player defended that he did not reply any of the claimant´s request because he
did not have a lawyer or intermediary and, in addition, FC Tambov replied already the
Claimant on 12 August 2020.
26. In light of the above, the Respondent requested to dismiss the claim and to impose a sanction
on the Claimant (art. 18.3 RSTP), as well as, to open an investigation against Shakhter due to
“corruption”.
27. In reply to the claim of the Claimant, the second respondent, FC Tambov, admitted to sign
an employment contract with the player (hereinafter, the “Employment Agreement”).
28. Nevertheless, FC Tambov sustained that it was completely unaware of the existence of any
other employment related to the player and “did not encourage the player to violate the
concluded contract”.
29. The Second Respondent held that the player himself declared that there was no impediment
to sign with the club (cf. article 12 para. 1 of the Employment Agreement).
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30. In addition, according to article 12 para. 2 of the Employment Contract, the player is the sole
responsible towards the Claimant.
31. Furthermore, it is highlighted that “Sports Director of FC Tambov Khudyakov P.B. has never
given any interviews to Tambov journalists, including the author of this article - Irina
Letunova”.
32. In light of the above, the Second Respondent requested that “the presented claims and
accusations from FC Shakhtar against FC Tambov to be completely unfounded and impossible
to satisfy by the FIFA Players’ Status Committee”. Furthermore, sporting sanctions should be
imposed to the Claimant “for violation of Article 18.3 of the FIFA Regulations on the Status
and Transfers of Players”.
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II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
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.
Taking into account the wording of art. 21 of the January 2021 edition of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber (hereinafter: the Procedural Rules), the aforementioned edition of the
Procedural Rules is applicable to the matter at hand.
2.
Subsequently, the Dispute Resolution Chamber referred to art. 3 par. 1 of the Procedural
Rules and emphasised 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, the Dispute Resolution
Chamber is competent to deal with matters which concern employment-related disputes
with an international dimension between players and clubs, such as the present one,
which involves a Kazakh club, a Russian player and a Russian club.
3.
In continuation, the Dispute Resolution Chamber analysed which edition of the
Regulations of the Status and Transfer of Players should be applicable to the present
matter. In this respect, the Dispute Resolution Chamber confirmed that in accordance
with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players, and
considering the date when the claim was lodged, the June 2020 edition of the
aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at
hand.
4.
With the above having been established, the Dispute Resolution 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 Dispute Resolution Chamber
emphasized that in the following considerations it will refer only to facts, arguments and
documentary evidence which it considered pertinent for the assessment of the matter at
hand.
5.
First of all, the Chamber noted that the Claimant and the player signed a document dated
6 July 2020, which appears to be an employment contract.
6.
However, in relation to said document, the Chamber noted that the player acknowledged
that he signed a “preliminary” employment proposal with the Claimant (“Le 8 juillet
Karasev à signé la version proposée comme accord préliminaire avec les conditions
proposées”) but he denied having signed a final employment agreement.
7.
Having considered all the argumentation put forward by the parties, the Chamber
understood that the first legal issue on which it had to analyse was whether the Claimant
and Respondent had in fact concluded an employment contract dated 6 July 2020.
8.
In this regard, the Chamber recalled that in order for an employment contract to be
considered as valid and binding, apart from the signature of both the employer and the
employee, it should contain the essentialia negotii of an employment contract, such as
(but not limited to) the parties to the contract and their role, the duration of the
employment relationship and the remuneration agreed upon between the parties. After
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a careful study of the documentation on file, the members of the Chamber concluded
that all such essential elements are included in the pertinent document, in particular, the
fact that the contract establishes that the player is entitled to receive remuneration,
including a yearly salary, in exchange for his services to the club as a player.
9.
Therefore, the Chamber concluded that a valid labor contract was concluded between
the Claimant and the Player.
10. Subsequently, the Chamber noted that the Claimant lodged a claim before FIFA against
the player, arguing that the latter breached the contract it had with him when he signed
a contract with FC Tambov.
11. In relation to said contract, the Chamber observed that is not disputed that, on 7 August
2020, FC Tambov and the player concluded an employment contract, valid as from the
date of signature until 31 May 2021, even though the player was already contractually
bound to the Claimant via the contract dated 6 July 2020, which was valid as from the
date of signature until 24 November 2021.
12. Consequently, the Chamber understood that, by signing a contract with a third club while
he was already bound by a contract with the Claimant, the player breached and
terminated the contract with FC Shakhter without just cause.
13. In view of the above, and in accordance with art. 17 par. 1 of the RSTP, the player is liable
to pay compensation to the Claimant for breach of contract. Furthermore, in compliance
with the unambiguous contents of art. 17 par. 2 of the RSTP, it is established that the
player’s new club, i.e. Second Respondent, shall be jointly and severally liable for the
payment of compensation. In this respect, it is stressed that the joint liability of FC Tambov
is independent from the question as to whether the new club has committed an
inducement to contractual breach or any other kind of involvement by the new club. This
conclusion is in line with the well-established jurisprudence of the Chamber that was
repeatedly confirmed by the Court of Arbitration for Sport (CAS).
14. Having stated the above, it should be calculated the amount of compensation for breach
of contract in the case at stake. In doing so, in accordance with art. 17 par. 1 of the RSTP,
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 as well as the fees and expenses paid or incurred by the former
club (amortised over the term of the contract) and whether the contractual breach falls
within a protected period.
15. In application of the relevant provision, the Chamber held that it first of all had to clarify
as to whether the pertinent employment contract contains 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. In this regard, the Chamber
observed that, indeed, the relevant employment contract did contain a provision in which
it has been beforehand agreed upon an amount of compensation payable by the
contractual parties in the event of breach of contract. In particular, Clause 7.4. and 7.5.
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established the payment of compensation equivalent to 3 monthly salaries) in case of
unilateral termination of the contract.
16. Consequently, on account of the above-mentioned considerations and in view of the
specific circumstances of the matter at stake, the player should pay to the Claimant
compensation for breach of contract in the total amount of KZT 15,795,000,
corresponding to the compensation that was foreseen by the parties in the contract.
17. In addition, and after taking into account the Claimant’s request as well as the
longstanding jurisprudence in this regards, the Chamber established that the Claimant is
be entitled to 5% interest p.a. on said amount as of the date of the claim until the date
of effective payment.
18. Furthermore, in accordance with the unambiguous contents of art. 17 par. 2 of the RSTP,
the Chamber established second respondent (player’s new club, i.e. FC Tambov), shall be
jointly and severally liable for the payment of the aforementioned amount of
compensation.
19. Furthermore, taking into account the previous considerations, the Dispute Resolution
Chamber referred to par. 1 and 2 of art. 24bis of the Regulations, which stipulate that,
with its decision, the pertinent FIFA deciding body shall also rule on the consequences
deriving from the failure of the concerned party to pay the relevant amounts of
outstanding remuneration and/or compensation in due time.
20. In this regard, the Dispute Resolution Chamber pointed out 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 and for the maximum duration of three entire and consecutive
registration periods. The Chamber also noted that, against players, said consequence
shall imply a restriction on playing in official matches up until the due amount is paid and
for the maximum duration of six months.
21. Therefore, bearing in mind the above, the Dispute Resolution Chamber decided that, in
the event that in the event the player does not pay the amounts due to the Claimant
within 45 days as from the moment in which the Claimant, following the notification of
the present decision, communicates the relevant bank details to the player, on playing
in official matches up until the due amount is paid and for the maximum duration of six
months.
22. Moreover, the DRC established that FC Tambov does not pay the amounts due to the
Claimant within 45 days as from the moment in which the Claimant, following the
notification of the present decision, communicates the relevant bank details to FC
Tambov, a ban from registering any new players, either nationally or internationally, for
the maximum duration of three entire and consecutive registration periods shall become
effective on the Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.
23. Finally, the Dispute Resolution 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. 24bis par. 3 of the Regulations.
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III. DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant, FC Shakhter, is partially accepted.
2.
The Respondent 1, Karasev Patel, has to pay to the Claimant, the following amount:
-
KZT 15,795,000 as compensation for breach without just cause plus interest of 5%
p.a. as from 26 November 2020 until the date of effective payment.
3.
The Respondent 2, FC Tambov, is jointly and severally liable of the payment of the
compensation mentioned under point 2 above.
4.
Any further claims of the Claimant are rejected.
5.
The Claimant is directed to immediately and directly inform the Respondent of the
relevant bank account to which the Respondent must pay the due amount.
6.
The Respondent shall provide evidence of payment of the due amount in accordance with
this decision to [email protected], duly translated, if applicable, into one of the official
FIFA languages (English, French, German, Spanish).
7.
This decision is rendered without costs.
8.
In the event that the amount due, plus interest as established above is not paid by the
Respondent 1 within 45 days, as from the notification by the Claimant of the relevant
bank details to the Respondent 1, the following consequences shall arise:
1. The Respondent 1 shall be restricted on playing in official matches up until the due
amount is paid and for the maximum duration of six months. The aforementioned
ban mentioned will be lifted immediately and prior to its complete serving, once
the due amount is paid (cf. art. 24bis of the Regulations on the Status and Transfer
of Players).
2. In the event that the payable amount as per in this decision is still not paid by the
end of the restriction period, the present matter shall be submitted, upon request,
to the FIFA Disciplinary Committee.
9.
In the event that the amount due, plus interest as established above is not paid by the
Respondent 2 within 45 days, as from the notification by the Claimant of the relevant
bank details to the Respondent, the following consequences shall arise:
1. The Respondent 2 shall be banned from registering any new players, either
nationally or internationally, up until the due amount is paid and for the maximum
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duration of three entire and consecutive registration periods. The aforementioned
ban mentioned will be lifted immediately and prior to its complete serving, once
the due amount is paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amount as per in this decision is still not paid by the
end of the ban of three entire and consecutive registration periods, the present
matter shall be submitted, upon request, to the FIFA Disciplinary Committee.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this
decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a
party within five days of the notification of the motivated decision, to publish an anonymised or
a redacted version (cf. article 20 of the Procedural Rules).
CONTACT INFORMATION:
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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