Labour Disputes
Texto da decisão
REF. FPSD-10407
Decision of the
Dispute Resolution Chamber
passed on 3 August 2023
regarding an employment-related dispute concerning
the player Nikolai Solovev
BY:
Livia SILVA KÄGI (Brazil & Switzerland), Deputy Chairwoman
Stella MARIS JUNCOS (Argentina), member
Jorge GUTIÉRREZ (Costa Rica), member
CLAIMANT:
FC Zenit St Petersburg, Russia
RESPONDENT:
Nikolai Solovev, Russia
Represented by Sila International Lawyers
SECOND RESPONDENT:
OFK Grbalj, Montenegro
pg. 2
REF. FPSD-10407
I. Facts of the case
1.
The relevant parties to the dispute are:
a. FC Zenit (hereinafter: Claimant, club, or Zenit), a club headquartered in the city of
St. Petersburg, Russia, and affiliated the Football Union of Russia (FUR).
b. The Russian player, Nikolai Solovev, born on 10 June 2004 (hereinafter: the player
or the First Respondent).
c. OFK Grbalj (hereinafter: Grbalj or the Second Respondent), a club headquartered
in the city of Radanovici, Montenegro, and affiliated the Football Association of
Montenegro (FAM).
2.
On 20 June 2022, the player and the club concluded an employment contract (hereinafter:
the contract) valid as from 1 July 2022 until 10 June 2023. Previously, the player had been
registered in the Claimant’s academies as an amateur.
3.
According to the contract, the Respondent undertook to pay the Claimant a monthly salary
of RUB 30,000.
4.
Clause 11.3 of the contract reads as follows:
“11.3. If any dispute relating to the Agreement arises between the Parties, it shall be settled
through negotiations. If the dispute is not settled by the Parties, it shall be submitted
exclusively to the FUR Dispute resolution chamber. The Parties agree that the decision of FUR
Dispute Resolution Chamber may be appealed to Court of Arbitration for Sport/ Tribunal
Arbitral du Sport (Lausanne) in accordance with the FUR Regulations on dispute resolution
and in accordance with the Code of Sport-related Arbitration.”
5.
In the beginning of October 2022, the player left Russia.
6.
On 10 October 2022, the Claimant put the First Respondent in default and requested him
to (a) provide an explanation as to his absence, (b) cease breaching the contract and (c)
resume his duties, to no avail.
7.
On 17 October 2022, the Claimant sent a new notice to the player, reiterating its previous
correspondence and informing that if the player did not resume his duties within 2 days,
the contract would be terminated.
8.
On the same day via e-mail and a letter dated 10 October 2022, the player responded to
the club. In doing so, he stated as follows:
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REF. FPSD-10407
“I, Solovev Nikolai Nikolaevich, with reference to provisions of Article 77, Part 1, Clause 3,
Article 80, Article 348.12 of the Labor Code of the Russian Federation, ask to be dismissed of
my own free will on 11 November 2022.
The motive for making the decision to be dismissed at my own request was the actual
exclusion of me as an athlete from the game process, transfer to participate in training events
in the younger training age group, that, in turn, completely blocks the opportunity for me to
improve sportsmanship and professional growth, makes the job meaningless.”
9.
On 20 October 2022, the club replied to the player, and inter alia stated as follows:
“On 10 October 2022 and 17 October 2022, FC Zenit JSC (hereinafter referred as to “FC Zenit”,
“Club”) sent you the demand to stop breaching the labor agreement entered into between you
and the Club on 20 June 2022. Nevertheless, you have not resumed execution of your labor
obligations; the Club has received neither response to the Club’s request, nor any explanation
of the reasons of your absence in the workplace.
Thus, during the period from 05 October 2022 through 20 October 2022 you were absent
from the workplace without just cause and did not fulfill your labor obligations, which is the
valid reason for termination of the labor agreement by the Club with just cause. Moreover,
on 18 October 2022 the Club received your letter of dismissal on your own will without just
cause. We draw your attention that by the date you sent the letter of dismissal to FC Zenit,
you had not executed your labor obligations for the long time, to be exact for 13 days.
In light of the above, based on article 81 (6.a) of the Labor Code of the Russian Federation
(unauthorized absence), we hereby inform you of termination of the labor agreement at the
Club’s initiative on 20 October 2022 (the last day of your employment at FC Zenit). We ask you
to arrive at the Club immediately to sign the order of dismissal.
We draw your attention once again that the Club intends to claim compensation from
you and/or your future football club, as well as the application of sporting
disqualification to you.” (emphasis added).
10. On 10 October 2022, the Claimant put the First Respondent in default and requested
payment of RUB 911,221 as compensation for breach of contract, to be paid within 10 days,
to no avail.
11. On 8 February 2023, the player and the Second Respondent entered into an employment
agreement, valid as from the same date until 20 June 2023, for a monthly remuneration of
EUR 450.
12. On 9 February 2023, the Second Respondent wrote to the Claimant and enquired about
the player’s status.
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REF. FPSD-10407
13. On 10 February 2023, the Second Respondent entered a transfer instruction in the Transfer
Matching System (TMS) to “engage the player out of contract” on a permanent basis. On
the same date, the FUR confirmed the identity of the player in the relevant instruction in
line with Title V, Annexe 3 of the Regulations on the Status and Transfer of Players (RSTP),
and the FAM requested the player’s International Transfer Certificate (ITC).
14. On 11 February 2023, the FUR delivered the player’s ITC to the FAM, without any distinctive
issues.
15. On 13 February 2023:
a. the Claimant informed the Second Respondent that the player was obliged to pay
compensation for breach of contract and warned that in case the Second
Respondent registered the player, the Claimant would sue the Second
Respondent before FIFA.
b. The player was registered with the FAM and the Second Respondent.
II. Proceedings before FIFA
16. On 31 May 2023, the Claimant filed the at hand before FIFA claim against both the First
respondent and the Second Respondent. A brief summary of the position of the parties is
detailed in continuation.
a. Position of the Claimant
17. As to the jurisdiction of FIFA, the Claimant argued as follows:
“Pursuant to Article 22 (lb) of FIFA RSTP, FIFA is competent to hear employment-related
disputes between a club and a player of an international dimension. At the same time
according to Article 17 (2) of FIFA RSTP, if a professional is required to pay compensation to
his former club, the professional and his new club shall be jointly and severally liable for the
payment. Thus, in accordance with FIFA rules the dispute between the Claimant and
Respondent 1 acquired international dimension when the Player signed a new employment
contract with Respondent 2, since at that moment the latter became jointly and severally
liable for demanded compensation for unilateral termination of labor agreement without just
cause. As CAS confirmed, when a termination of a contract is followed by an international
transfer and a subsequent dispute as to whether the new foreign club must compensate the
old one according to Article 17 (2) of the FIFA Regulations, then the prerequisites of Article 22
of FIFA RSTP are fulfilled and FIFA is competent (see for example CAS 2020/A/7054 Sporting
Clube de Portugal v. Rafael Alexandre de Coinceicao Leao & LOSC Lille & FIFA).
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REF. FPSD-10407
Therefore, FIFA is fully competent to hear the dispute between the Claimant on the one side
and Respondent 1 and Respondent 2 on the other side.”
18. As to the substance, the Claimant argues that the player terminated the contract without
just cause, and must pay compensation. The Claimant also invokes art. 17 par. 2 RSTP and
states that the Second Respondent must be found jointly liable for the payment of
compensation.
19. The Claimant calculates the compensation as follows:
“A) the sum of salary and insurance fees that would have been paid to the Player under the
Labor agreement for the period from the date of its early termination until the initially
supposed date of its expiration in the amount of RUB 301,465.00 (…);
B) the sum of Player's health insurance (…) and the cost of his medical treatment in the total
amount of RUB 113,133.00 (…);
C) the sum of the training compensation paid by the Claimant to Player's former clubs
(sporting schools) due to signing of first professional contract with the Player under the FUR
Regulations on the Status and Transfer of players, in the amount of RUB 496,623.00 (…)
The compensation for the unilateral termination of the labor agreement in the amount of
RUB 911,221.00 (Nine hundred and eleven thousand two hundred and twenty-one rubles) net
can be paid to the Claimant in euros. A correspondent sum is equal to EUR 15,077.00 (Fifteen
thousand and seventy-seven euros) net and shall be calculated as follows:
911,221/60.4371, where:
911,221 -is a sum of compensation for the unilateral termination of the Labor agreement in
Russian rubles;
60.4371-is an official currency exchange rate of the Bank of Russia (EUR 1 = RUB 60.4371) for
21 October 2022, which is the date immediately following the date of unilateral termination
of the labor agreement by the Player (the latter being the due date for compensation
payment).
The official exchange rate (RUB/EUR) for 21.10.2022 can be checked at the official website of
Bank of Russia”
20. The Claimant filed the following request for relief:
“In light of the above FC Zenit respectfully requests the Dispute Resolution Chamber to declare
that:
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REF. FPSD-10407
a.
The Respondent I and Respondent 2 shall pay FC Zenit either RUB 911,221.00 (Nine
hundred and eleven thousand two hundred and twenty-one rubles) net or EUR 15,077.00
(Fifteen thousand and seventy-seven euros) net, being the outstanding sum of compensation
for the unilateral termination of the labor agreement;
b.
The Respondent 1 and Respondent 2 shall pay the annual interest of 5% on the sum
of RUB 911,221.00 or EUR 15,077 starting from 21 October 2022 until the date of effective
payment;
c.
The Respondent 1 shall be sanctioned with a six-month restriction on playing in official
matches;
d.
The Respondent 2 shall be banned from registering any new players, either nationally
or internationally, for two entire and consecutive registration periods;
e.
In addition to the above, the Respondent 1 and Respondent 2 shall bear any and all
additional costs (including procedural costs) of the proceedings that the Dispute Resolution
Chamber may deem appropriate to levy as a result of consideration of the case in question.”
b. Position of the First Respondent
21. In its reply, the First Respondent accepted the jurisdiction of FIFA, but contested the
substance of the dispute.
22. In doing so, the player raised the following issues:
•
The player argues that the military situation in Russia forced him and his family to
leave the country, which was one of the reasons he had just cause to terminate his
contract with the Claimant. He explained that because he turned 18 in June 2022, he
could be conscripted to the army, and thus his life was at risk.
•
He had just cause to terminate his contract with the Claimant due to the lack of
gaming practice, the conflict with the club, and the military situation in Russia that
forced him and his family to leave the country.
•
The Claimant did not have just cause to terminate his contract based on his absence
from training sessions for a short period, which did not affect any official matches. At
the same time, the Claimant did not show any interest in continuing the employment
or pursuing the claim in a timely manner, as it waited for 223 days before filing the
claim.
•
The Claimant did not prove any damages or expenses related to the acquisition of
his services, and its claim for fees, medical expenses, and training compensation is
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REF. FPSD-10407
unfounded and exaggerated. The player holds that these should all be rejected
accordingly.
•
The Claimant has no standing to request sporting sanctions and that such sanctions
would be disproportionate and unnecessary in the matter at hand.
23. The player requested that the claim be dismissed and no sporting sanctions are applied.
c. Position of the Second Respondent
24. In his reply, the Second Respondent objected both as to the competence as well as the
merits.
25. As to the competence, the Second Respondent argued that the parties opted for disputes
to be exclusively decided within the FUR, and FIFA cannot entertain them. Additionally, the
Second Respondent argued that art. 22 par. 1 lit. a) RSTP is not appliable, since “the dispute
between the Player and FC Zen it arose long before the Player's transfer to the Club. and there
is no link of the dispute with ITC request, therefore the present dispute cannot be attributed with
an international dimension”. On this note, the Second Respondent challenged the reference
made by the Claimant with regards to CAS jurisprudence, and indicated that the cited
award in fact support the Second Respondent’s position.
26. As to the substance, the Second Respondent referred to the player’s submissions and
supported them to the effect that the player had just cause to terminate the contract.
Grbalj contends that the Claimant terminated the Player’s employment without just cause,
or alternatively, because the Claimant lost interest in the Player’s services and prevented
him from training and playing with the relevant teams.
27. Grbalj also asserts that even if compensation is awarded to Claimant, it should be limited
to the average salary of the Player in both contracts for the remaining duration of the
original contract, and that no fees or expenses claimed by Claimant should be included in
the calculation, especially training compensation.
28. As to the sporting sanctions, the Second Respondent put in question if the Claimant has
standing to sue to make such a request, and argued that in any event it did not induce the
player to terminate the contract, thus no sporting sanctions are merited.
29. The Second Respondent filed the following relief:
“Having said all the above, the Football Club Grbalj respectfully requests the FIFA Football
Tribunal to rule as follows:
1.
The claim of FC Zenit is inadmissible.
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REF. FPSD-10407
Alternatively:
The claim of FC Zenit is rejected.
In any event:
No sporting sanctions are imposed on Football Club Grbalj.”
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
30. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or
DRC) analysed whether it was competent to deal with the case at hand. In this respect, it
took note that the present matter was presented to FIFA on 31 May 2023 and submitted
for decision on 3 August 2023.
31. 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. In doing so, the
Chamber recalled the basic principle of burden of proof, as stipulated in art. 13 par. 5 of
the Procedural Rules, according to which a party claiming a right based on an alleged fact
shall carry the respective burden of proof. Likewise, the Chamber stressed the wording of
art. 13 par. 4 of the Procedural Rules, pursuant to which it may consider evidence not filed
by the parties, including without limitation the evidence generated by or within the TMS.
32. Subsequently, the Chamber referred to art. 2 par. 1 of the Procedural Rules as well as art.
23 par. 1 in combination with art. 22 lit. a) and b) of the RSTP (May 2023 edition), and noted
that the parties dispute if the Chamber is competent to entertain the claim at hand – a
matter that in any event has to be examined ex officio, especially since the Claimant and
the First Respondent share the same nationality.
33. In accordance with art. 22 par. 1 lit. b) in conjunction with art. 24 of the RSTP, FIFA is
competent to deal with employment-related disputes between a club and a player of an
international dimension, unless an independent arbitration tribunal guaranteeing fair
proceedings exists at national level.
34. The wording of the article in question clearly implies that the first condition that needs
compulsorily to be fulfilled for FIFA to be competent to hear an employment-related
dispute between a club and a player is that said dispute has an “international dimension”.
The Chamber underlined that this means FIFA is only competent to hear an employmentrelated dispute between of such kind when the parties have different nationalities.
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REF. FPSD-10407
35. In the matter at hand, the Chamber reiterated that both the Claimant and the Second
Respondent are of Russian nationality, and thus art. 22 par. 1 lit. b) RSTP cannot apply.
36. Notwithstanding the above, the Chamber did not fail to notice the issue of the involvement
of the Second Respondent from Montenegro in these proceedings, which in principle could
trigger the application of art. 22 par. 1 lit. a) of the RSTP (insofar as the application of lit. b
of the cited provision has been set aside).
37. Article 22 par. 1 lit. a) RSTP gives FIFA the authority to decide on disputes between players
and clubs that affect the maintenance of contractual stability, especially when they involve
a request for an ITC (and a related claim by a party interested in that request). This means
– so explained the Chamber– that FIFA can intervene when a player wants to transfer to a
club in another member association and there is a conflict with the former club over the
contract previously concluded between them.
38. When a player moves from one club to another in different member associations, like in
the case at hand, the player’s registration also needs to be transferred between the two
associations concerned. This is done by issuing an ITC, which is a certificate that confirms
the player’s registration with the new club and association. According to Annexe 3, art. 11
par. 8 and Annexe 3, art. 11 par. 3 lit. b) of the RSTP, there is only one valid reason for an
association to deny the issuance of an ITC: when the former club and the player have a
contractual dispute.
39. In the matter at hand, the Chamber underlined that the dispute in relation to the player’s
engagement with the Second Respondent happened however long after the termination
of the original contract.
40. In fact, the Chamber remarked that if the FUR had refused to issue the player’s ITC, the
FAM could have asked FIFA to step in and allow the player’s registration according to
Annexe 3, art. 11 par. 8 lit. b) of the RSTP. It would be then to the Players’ Status Chamber
(PSC) to determine whether the player could be registered with the Second Respondent
despite the ongoing contractual dispute between the player and the former club (as per
art. 23 par. 4 of the RSTP).
41. The Chamber equally remarked that per Annexe 3, art. 11 par. 8 lit. b) of the RSTP, any such
decision by the PSC in cases like the one illustrated above are made without prejudice to
any claim that may be filed with FIFA regarding the underlying contractual dispute between
the player and the former club.
42. These decisions by the PSC have an international impact, which is why FIFA has the power
to authorize registrations for a player with a new club. This also explains why FIFA has
jurisdiction over employment-related disputes where the player and the club concerned
have the same nationality. If a player wants to transfer to a club in another member
association (that is, an international transfer) and this leads to a contractual dispute with
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REF. FPSD-10407
their (old) club, it would not make sense for FIFA’s decision-making bodies to decide on the
registration of a player, but not on the underlying contractual dispute.
43. Similarly, when the player and the club have the same nationality as in this case, the player’s
potential new club (in this case, the Second Respondent) is outside of the jurisdiction of the
member association/national court of the former club. The involvement of a foreign club
in the dispute because it is trying to register the player creates, in general, the
international dimension. This is particularly important because the potential new club
could be held jointly and severally liable for paying compensation if a breach of contract
without just cause is found according to art. 17 par. 4 of the Regulations, as well as because
sporting sanctions may be imposed on the new club if it induced a breach.
44. However, according to article 22 paragraph 1 lit. a) RSTP, the contractual dispute between
the player and their former club must be related to an ITC request. This means that if a
player and a club have an employment dispute that does not involve any international
aspect (e.g., if both parties are, for example, Russian as in this case), and the player decides
to transfer internationally to a club affiliated to another member association only after the
original dispute occurs, the international transfer cannot be the cause of the underlying
contractual dispute. Therefore, the original contractual dispute has no international
element, and the competent authority to deal with it is the relevant national one.
45. In the matter at hand, the player’s transfer to the Second Respondent is not connected to
the contractual dispute that is the basis of the Claimant’s claim, because this transfer
happened several months after the player allegedly breached the contract. In other words,
the mechanism established by art. 22 par. 1 lit. a) RSTP to prevent foreign influence (or
inducement) on domestic players cannot be applied in these proceedings because the
player’s new registration in Montenegro has nothing to do with the termination of contract
between the player and the club, which is solely connected to the fact that the player left
the Russian territory.
46. Moreover, the Claimant (or the FUR on its behalf) did not challenge the issuance of the
player’s ITC from the FUR to the FAM. It seems, in the DRC’s view, that the Claimant waited
until the player had found new (international) employment with the Second Respondent
and then involved this club in these proceedings, seeking the consequences provided by
art. 17 par. 4 of the RSTP. In fact, this conduct was already suggested by the Claimant in its
letter of 20 October 2022. The DRC could not agree to such behaviour.
47. On the basis of the foregoing, the DRC decided that the dispute at hand only has a national
dimension, and that the Football Tribunal is not competent to hear the Claimant’s claim.
b. Costs
48. The Chamber referred to art. 25 par. 1 of the Procedural Rules, according to which
“Procedures are free of charge where at least one of the parties is a player, coach, football agent,
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REF. FPSD-10407
or match agent”. Accordingly, the Chamber decided that no procedural costs were to be
imposed on the parties.
49. Likewise, and for the sake of completeness, the Chamber recalled the contents of art. 25
par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
50. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
IV. Decision of the Dispute Resolution Chamber
1.
The Football Tribunal does not have jurisdiction to hear the claim of the Claimant, FC Zenit
St Petersburg.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-10407
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
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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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