Labour Disputes
Texto da decisão
REF. FPSD-14957
Decision of the
Dispute Resolution Chamber
passed on 18 September 2024
regarding an employment-related dispute concerning the player Nicolai
Solodovnicov
BY:
Sihon GAUCI (Malta)
CLAIMANT:
Nicolai Solodovnicov, Moldova
Represented by Kiryl Maleyeu
RESPONDENT:
KS Kukesi, Albania
Represented by Arsen Selmanaj
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REF. FPSD-14957
I. Facts of the case
1.
On 10 January 2024, the Albanian club, FK Kukesi (hereinafter: the Club or the Respondent)
sent an offer letter to the Moldovan player, Nicolai Solodovnicov (hereinafter: the Player or
the Claimant), that established the following conditions:
•
Validity until 31 May 2024;
•
EUR 3,000;
•
EUR 350 goal/assist;
•
EUR 300 as food allowance;
•
One flight ticket;
•
Accommodation allowance.
2.
On 17 January 2024, the Player and the Club entered into an employment contract
(hereinafter: the Contract) valid until 31 May 2024.
3.
In the context of the claim, two different signed versions of the Contract were provided by
the Parties. The different versions specified different remuneration and the clause
concerning jurisdiction also differs.
4.
In accordance with the version of the Contract provided by the Claimant, the Player and
the Club (hereinafter: the Parties) agreed on the following remuneration:
5.
•
EUR 3,000 net per month;
•
EUR 1,000 net upon the contract signature as a sign-on fee;
•
EUR 300 net as food allowance;
•
EUR 350 net per goal and assist in official match in Championship;
•
1 flight ticket (two ways: Chisinau –Tirana –Chisinau);
•
Accommodation;
•
The monthly payment will be made every 20th of the next month.
In addition, clause 18 of the Contract provided by the Claimant stipulates the following:
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REF. FPSD-14957
“In case of possible disputes, the parties to this contract undertake/commit to resolve them by
consensus, otherwise, the Civil Court of Tirana, will be exclusively competent for their resolution”.
6.
In accordance with the version of the Contract provided by the Respondent which was also
uploaded under the respective transfer instruction in TMS, the Parties agreed on a monthly
salary of ALL 45,000.
7.
In addition, clause 18 of the Contract stipulates the following:
“In case of possible disputes, the parties to this contract undertake/commit to resolve them by
consensus, otherwise, the relevant Civil Court of Tirana, in Albania, will be exclusively competent
for their resolution.”
8.
By correspondence dated 3 June 2024, the Claimant put the Respondent in default of
payment of EUR 12,247, setting a time limit of 10 days in order to remedy the default.
II. Proceedings before FIFA
9.
On 15 June 2024, the Claimant filed the claim at hand before FIFA. A summary of the parties’
position is detailed below.
a. Position of the Claimant
10. According to the Claimant, the Single Judge of the Dispute Resolution Chamber
(hereinafter: the Single Judge) is competent to hear the present matter in view of the article
22 of the Regulations.
11. The requests for relief of the Claimant, were to condemn the Respondent to pay the
Claimant the outstanding amount of EUR 12,247 net and 5% interest, corresponding to the
following amounts:
•
EUR 9,152 for the outstanding salaries;
•
EUR 1,345 for the food allowance;
•
EUR 1,750 as bonuses for goals and assists.
b. Position of the Respondent
12. The Respondent disputed the jurisdiction of the Football Tribunal on the basis of the clause
18 of the version of the Contract provided by the Club that stipulates that “In case of possible
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REF. FPSD-14957
disputes, the parties to this contract undertake/commit to resolve them by consensus, otherwise,
the relevant Civil Court of Tirana, in Albania, will be exclusively competent for their resolution”.
13. In view of the above clause, the Respondent alleged that it is “clear in the sense that the
Parties opted to exclusively refer any and all disputes arising from the Contract to an ordinary
court of law particularly and exclusive, the Civil Court of Tirana.”
14. In addition, the Respondent contested the version of the Contract that was provided by the
Player alleging that the Contract is not signed by the Club and that “the Player took a draft
contract, and he signed it at a later stage, likely modifying the salary and everything else.”
15. In this regard, the Respondent alleged that the Contract was modified in May 2024.
16. Furthermore, the Club alleged that they have fulfilled all their financial obligations towards
the Player.
17. Finally, the Respondent requested the following relief:
“The Dispute Resolution Chamber lacks jurisdiction to entertain the claim filed by Claimant
against FK Kukesi.
In all cases:
The costs of the proceedings, if any, shall be entirely born by Claimant.
The Claimant shall be ordered to pay to FK Kukesi a total amount of CHF 2,000 as a contribution
towards its legal expenses incurred in connection with these proceedings.”
c. Claimant’s comments regarding the jurisdiction
18. The Claimant provided his comments regarding the disputed jurisdiction of the Football
Tribunal and the versions of the Contract.
19. Regarding the jurisdiction, the Claimant’s position is based on the wording used in the
version provided by him as he alleged that the version of the Club was amended after the
signature of the Contract:
“In case of possible disputes, the parties to this contract undertake/commit to resolve them by
consensus, otherwise, the Civil Court of Tirana, will be exclusively competent for their resolution.”
20. The Player alleged that the jurisdiction clause is not “comprehensive, unequivocal, specific
and clear in its wording in order to be implemented as exception from rules established by art.
22 of the RSTP […] which shall prevail the jurisdiction clause.”
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21. Specifically, the Player claimed the following:
•
The city of Tirana can be found not only in Albania but also in Pakistan. Therefore,
the place is not clearly defined.
•
In addition, as in the version of the Club it is mentioned “civil Court of Tirana, in
Albania, the Respondent has specified and therefore recognized that the jurisdiction
clause is not unequivocal in full.”
•
“The Jurisdictional Clause did not specify that exactly employment-related disputes shall
be resolved at civil court, and in principle, it is not comprehensive with that respect due
to absence of reference to any and all disputes as allegedly stated by the Respondent
[…]. Therefore, it creates uncertainty whether the employment related disputes might be
considered at proposed civil court.”
•
Furthermore, the Respondent did not specify the exact name of civil court, to which
possible employment related disputes should be submitted. Thus, by adding the
word “relevant” the Respondent recognised that the Jurisdiction clause is not clear.
•
Finally, “even if it would be considered that lawsuit shall be made in Albania, the
Respondent did not provide any proof that the employment-related or labour disputes
might be heard by proposed civil court. From information on the official website of the
Courts of the Republic of Albania, such conclusion cannot be done.”
22. Regarding the disputed versions of the Contract, the Claimant alleged that he was
requested by the Club to sign different versions of the Contract.
23. The Clamant also explained that the version submitted by the Respondent should be used
for the Respondent’s internal purposes only, namely, for tax matters. In contrary, the
version provided by the Claimant reflects terms from the offer and the real financial
arrangements between the parties.
24. Finally, the Player reiterated his initial request for relief.
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REF. FPSD-14957
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
25. First of all, the Single Judge analysed whether she was competent to deal with the case at
hand. In this respect, she took note that the present matter was presented to FIFA on 15
June 2024 and submitted for decision on 18 September 2024. Taking into account the
wording of art. 34 of the March 2023 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.
26. Subsequently, the Single Judge 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 par. 1 lit b) of
the FIFA RSTP (March 2023 edition), the Single Judge would in principle be competent to
deal with the matter at stake, which concerns an employment-related dispute with an
international dimension between a Moldovan player and an Albanian club, “without
prejudice to the right of any player (…) or club to seek redress before a civil court for employment
related disputes.”
27. Notwithstanding the above, the Single Judge acknowledged that the Respondent, on the
one hand, contested the competence of FIFA’s deciding bodies on the basis of clause 18 of
the Contract provided by the Club, alleging that the competent body to deal with any
dispute deriving from the relevant employment contract is the courts of Tirana in Albania.
On the other hand, the Single Judge noted that the Claimant insisted on the competence
of FIFA to adjudicate the claim.
28. The Single Judge recalled that the Parties have provided different versions of the Contract
and therefore, reverted to the wording of the relevant clause 18 of both versions of the
Contract, provided respectively by the Player and by the Club. The Single Judge considered
that regardless the version of the Contract considered, both jurisdiction clauses 18 of both
versions of the Contract are clear and unambiguous, granting exclusive jurisdiction to civil
courts in Albania.
29. In addition, and for the sake of completeness, the Single Judge observed that both versions
of the Contract bear the Club’s signature and therefore the Club’s allegation according to
which the Claimant’s version of the Contract has not been signed by the Club, has not been
taken into account.
30. Therefore, the Single Judge concluded that the Parties unambiguously and exclusively
decided that any dispute that would arise from the Contract would be submitted to the civil
courts of Tirana, Albania.
31. The Single Judge recalled that parties may freely agree to give jurisdiction to a civil court,
and that such choice shall always prevail. In fact, the Single Judge, recalling the Football
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REF. FPSD-14957
Tribunal’s jurisprudence as well as the CAS jurisprudence in this regard, highlighted that
even if the choice of law does not specify which courts are competent (e.g. a generic
reference is made to a region/city), FIFA is not competent when the parties have exclusively
agreed upon the jurisdiction of a civil court. In addition, the Single Judge emphasized that
art. 22 par. 1 of the Regulations provides a clear hierarchy in favour of contractual
autonomy.
32. In view of all the above, the Single Judge concluded that she does not have jurisdiction to
hear the dispute between the Claimant and the Respondent.
b. Costs
33. The Single Judge 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, she decided that no procedural costs were to be imposed on
the parties.
34. Likewise, and for the sake of completeness, the Single Judge recalled the contents of art.
25 par. 8 of the Procedural Rules and decided that no procedural compensation shall be
awarded in these proceedings.
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REF. FPSD-14957
IV. Decision of the Dispute Resolution Chamber
1.
The Football Tribunal does not have jurisdiction to hear the claim of the claimant, Nicolai
Solodovnicov.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-14957
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 Governing the Football
Tribunal).
CONTACT INFORMATION
Fédération Internationale de Football Association – Legal & Compliance Division
396 Alhambra Circle, 6th floor, Coral Gables, Miami, Florida, USA 33134
legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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