Labour Disputes
Texto da decisão
REF. FPSD-8408
Decision of the
Dispute Resolution Chamber
passed on 20 April 2023
regarding an employment-related dispute concerning
the player Yurchenko Vladlen
BY:
Omar ONGARO (Italy), Deputy Chairperson
José Luis ANDRADE (Portugal), member
Peter LUKASEK (Slovakia), member
CLAIMANT:
Vladlen Yurchenko, Ukraine
Represented by Yuliya Bogdanova
RESPONDENT:
Pafos F.C., Cyprus
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REF. FPSD-8408
I. Facts of the case
1.
On 30 August 2022, the Ukrainian player Yurchenko Vladlen (hereinafter: the Claimant or
the Player) and the Cypriot club Pafos F.C. (hereinafter: the Respondent or the Club) allegedly
concluded an employment agreement (hereinafter: the Contract) to be valid as from said
date until 31 May 2024.
2.
In accordance with the Contract, the Respondent undertook to pay to the Claimant inter
alia a monthly salary of EUR 25,000.
3.
Furthermore, under art. 1.4 of the Contract further benefits for the Player are established,
namely:
-
EUR 500 as monthly allowance for car rental;
EUR 1,200 as monthly allowance for accommodation.
4.
On 28 August 2022, the Player landed in Cyprus and stayed 2 days in a hotel in the city of
Pafos, where the Respondent is based.
5.
On 30 August 2022, Mr. Artem Shepelev, commercial director of the Respondent, contacted
the Player informing the latter that the Respondent had requested to be put in touch with
the Player’s agent but did not have receive any relevant contact details.
6.
On the very same day, the Player sent a letter to the Respondent asking to clarify the
situation within the next day, i.e., by 31 August 2022, namely as he had not received any
information regarding the training sessions, nor the Respondent had provided him with
any accommodation in Cyprus.
7.
Contextually, the Player asked the Respondent to request the relevant International
Transfer Certificate (ITC) from the Player’s former football association, i.e. the Latvian
Football Federation (LFF).
8.
On 1 September 2022, the Player sent a further message to the Respondent reiterating his
requests and granted one more day to the latter in order to remedy the alleged breaches.
9.
On 5 September 2022, the Player sent a warning notice to the Respondent copying the
Cypriot Football Association (CFA) on the relevant email and stating that the Respondent
had failed to comply with all the terms stipulated under the Contract while it did not even
provide the Player with a response regarding his previous letters.
10. Moreover, on 8 September 2022, the Player sent a final warning letter, copying once again
the CFA on the relevant email and reproducing the content of the notice dated 5 September
2022, granting a further deadline of one more day to the Respondent.
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11. In this context, the Player inquired the CFA about his registration with the Respondent.
12. Eventually, on 10 September 2022, the Player notified the Respondent of the unilateral
termination of the Contract and demanded to be paid compensation accordingly.
13. On 12 September 2022, the CFA informed the Player that he had not been registered by
the Respondent nor the relevant Contract had been deposited by the latter.
14. On 15 September 2022, the Player signed a new employment contract with the Ukrainian
club FC Vorskla, to be valid from 16 September 2022 until 30 June 2025, and for a monthly
salary of EUR 1,245.
II. Proceedings before FIFA
15. On 28 November 2022 the Claimant filed the claim at hand before FIFA. A brief summary
of the position of the parties is detailed in continuation.
a. Position of the Claimant
16. In the claim, the Player argued that the Respondent breached the Contract immediately
after its conclusion, namely as once the Player arrived in Cyprus no one contacted him, nor
the Player has ever received any response to his several letters of warning.
17. In this context, the Player stated that on 6 September 2022 he went to the Respondent’s
office and spoke to Mr. Charis Theocharou, CEO of the Respondent, who allegedly referred
that the Contract had been signed by the previous management, hence he would have
needed a couple of days to solve the issue.
18. In this respect, the Player argued that however no representative of the Respondent
assisted him in solving the issue while on the contrary the Player found himself isolated in
a foreign country and de fact obliged to terminate the Contract prematurely.
19. As a consequence, the Player demanded to be paid compensation calculated on the basis
of the entire contractual value minus the remuneration perceived under the new
employment agreement with FC Vorskla.
20. The request for relief of the Claimant, accordingly, was to be paid the amount of EUR
498,855.
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b. Position of the Respondent
21. In its reply, the Respondent declared that it has never concluded any employment contract
with the Player.
22. In particular, the Respondent argued that the person who signed the Contract produced
by the Player, Mr. Ivan Mance, was not even a representative of the Respondent at the time
of the signature, namely as he had already left the club on 1 July 2022 and he has been
replaced by Mr. Gaizka Mendieta on 1 August 2022.
23. In this respect, the Respondent referred that on 30 August 2022, Mr. Mance was already
working for the Turkish club Goztepe, hence he would have no legal capacity to sign the
Contract with the Player on behalf of the Respondent.
24. In this context, the Respondent argued that, for the above reason, its commercial director,
Mr. Shepelev, was completely unaware of the arrival of the Player to Cyprus in the end of
August 2022.
25. Accordingly, the Respondent requested to reject the Player’s claim in its entirety as there is
no binding contract between the parties.
c. Rejoinder of the Claimant
26. In response to the Respondent’s allegations, the Player explained that the owner of FC Riga
(which was the Player’s former club) and FC Pafos (the Respondent) were the same person,
i.e. Mr. Sergey Lomakin, hence on 17 January 2022, following a meeting between the Player
and the latter, this had been agreed that the Player would have played for FC Riga until the
end of the season 2021/2022 and then would have moved to FC Pafos during summer of
2022 as a free agent.
27. In this context, the Player argued that for the above reason the employment contract with
FC Riga foresaw a termination clause activable in August 2022 and that both the contracts
with FC Riga and FC Pafos had been signed at the same moment (i.e. on 24 January 2022)
but artificially indicated two different dates.
28. In particular, the Player stated that the Contract with the Respondent had been signed
while Mr. Mance was still working for the Respondent, hence he was legally entitled to
represent the Respondent and the Contract shall be deemed as valid and binding.
29. In this respect, the Player alleged of having been referred by Mr. Sergey to Mr. Aleksandr
Tsomaya as the point of contact and the person to who the Player should have sent the
Contract stipulated with the Respondent on 24 January 2022.
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REF. FPSD-8408
d. Final comments of the Respondent
30. In its final submission, the Respondent objected to the reliability of the evidence produced
by the Player to corroborate his allegations that the Contract would have been signed in
January 2022.
31. In particular, the Respondent argued that the only version of the Contract presenting
signatures was the one dated 30 August 2022, hence it shall be disregarded as not signed
by any official representative of the Respondent, whereas all the other documents were
just mere drafts.
32. Furthermore, the Respondent remarked that under no communication among those
submitted by the Claimant there is any reference made to FC Pafos, while the relation
between the Player and FC Riga had no relevance in respect to the alleged employment
relationship with the Respondent.
33. Accordingly, the Respondent requested once again to reject the Player’s claim in its entirety
as groundless.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
34. 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 28 November 2022 and
submitted for decision on 20 April 2023. Taking into account the wording of art. 34 of the
October 2022 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.
35. Subsequently, the members of the Chamber 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 lit. b) of the
Regulations on the Status and Transfer of Players (March 2023 edition), the Dispute
Resolution Chamber is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a player from
Ukraine and a club from Cyprus.
36. Subsequently, 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 (March 2023 edition), and
considering that the present claim was lodged on 28 November 2022, the October 2022
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REF. FPSD-8408
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
37. 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 on the basis of
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 Transfer Matching System (TMS).
c. Merits of the dispute
38. Its competence and the applicable regulations having been established, the Chamber
entered into the merits of the dispute. In this respect, the Chamber started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on 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.
i. Main legal discussion and considerations
39. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the Player lodged a claim against the Respondent for
breach of contract without just cause, arguing that he concluded an employment
agreement with said club, that was valid as from 30 August 2022 until 31 May 2024.
40. Conversely, the Chamber observed that the Respondent rejected the Player’s claim and
argued that it never concluded any employment contract with the Claimant.
41. In this respect, the Chamber observed, however, that the Respondent has never objected
(nor replied) to any of the default notices sent by the Claimant, hence it failed at the time
to dispute the alleged existence of an employment contract between the parties. In
accordance with the principle of estoppel, the Chamber observed that the conduct of the
Respondent generated on the Player the reasonable expectation that there was no query
regarding the existence or validity of the Contract. Was is more, the Chamber noted that
the Respondent also does not dispute the existence of a meeting between the parties on 6
September 2022, occasion in which also no issues regarding the validity of the Contract
was raised other than the Club’s new administration allegedly being unaware of it.
42. Furthermore, the Chamber recalled that, during the course of the proceedings, an allegedly
original copy of the contract was provided by the Player. After a thorough analysis of the
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REF. FPSD-8408
aforementioned documents, in particular, comparing the relevant signatures of the parties
in the various documents provided in the present affair, the DRC had no other option but
to conclude that, for a layman, the signatures on such documents appear to be the
authentic, hence there would be no evident reason to deem the mentioned documents as
implausible.
43. In continuation, and in a subsidiarily way, the Chamber noted that, according to the
Respondent, even if the Contract had been signed, this would have been done by someone
who was not authorized to conclude agreements on behalf of the Respondent at the
relevant time (i.e., Mr. Ivan Mance).
44. In this context, the Chamber observed that according to the Claimant, the abovementioned
Contract had been indeed concluded in January 2022 but post-dated to August 2022
following an agreement with Mr. Sergey Lomakin, which at the time resulted to be the
owner of both the Player’s former club, FC Riga and the Respondent.
45. In this respect, the Chamber noted that, in partial contradiction of its previous statements,
the Respondent did not contest the aforementioned double-ownership, nor it has objected
to the fact that its former representative, Mr. Ivan Mance, had effectively concluded a
contract with the Claimant but rather disputed its actual date of conclusion.
46. Accordingly, the Chamber understood that the matter at stake is affected by the particular
aspect of multi-club ownership which, in the present case, potentially explains the
particular structure of contracts between the Player, the Respondent and Riga FC.
47. Indeed, the Chamber took note of the Player’s remark as to the relevant agreement among
the parties according to which “it was agreed to sign the contracts with FC Riga and FC Pafos
simultaneously, but differently dated”.
48. In the opinion of the Chamber, and given the very specific elements of the present matter
(as detailed above), this remark appears to be plausible and provides a legitimate
explanation on why the contract between the Player and the Respondent was effectively
signed in January 2022 as well as on the reason for which Mr. Ivan Mance was the person
to sign the agreement instead of the Respondent’s current sporting director.
49. In this respect, the DRC was not convinced by the Respondent’s argument according to
which the Contract would be not enforceable because of Mr. Mance’s lack of authorization
to represent his former club. Indeed, the DRC pointed out that, in accordance with the
principle of good faith, to be respected by the parties during the conclusion of contracts,
the Claimant could reasonably believe at the time, and in good faith, that the person signing
the relevant agreement on behalf of the Respondent was legally authorized to sign it.
Equally and in accordance with the aforementioned principle of burden of proof, the
Chamber outlined that the Respondent did not provide any documentary evidence
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REF. FPSD-8408
demonstrating that the Claimant was aware of the situation outlined by the Respondent at
the moment of signing the pertinent agreement.
50. With the above in mind, the Chamber was convinced that, from the documentation on file
and in consideration of the evidence provided by the parties during the course of the
investigation, it is clear that the contract between the Player and the Respondent was valid
and binding for the period comprised between 30 August 2022 and May 2024, whereas the
Respondent evidently failed to start its execution without providing any valid reason.
51. As a result, in application of the principle of pacta sunt servanda, and considering that the
Respondent failed to meet its obligations as to the execution of the contract, the Chamber
unanimously established that said club is to be held liable for breach of contract without
just cause.
ii. Consequences
52. In this respect, having established that the Respondent is to be held liable for the
termination of the contract with just cause by the Claimant, the Chamber decided that, in
accordance with art. 17 par. 1 of the Regulations, the Respondent is liable to pay
compensation to the player.
53. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the player by the club in the case at stake. In doing so, the
Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, 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, and depending on whether the contractual breach falls within the
protected period.
54. In application of the relevant provision, the Chamber held that it first of all had to clarify as
to whether the pertinent employment contract contained 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
established that no such compensation clause was included in the employment contract at
the basis of the matter at stake.
55. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the club to the player had to be assessed in application of the
other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that
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REF. FPSD-8408
said provision provides for a non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable.
56. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded
with the calculation of the monies payable to the player under the terms of the contract
from the date of its unilateral termination until its end date. Consequently, the Chamber
concluded that the amount of EUR 525,000 (i.e., the residual value) serves as the basis for
the determination of the amount of compensation for breach of contract.
57. In continuation, the Chamber verified as to whether the player had signed an employment
contract with another club during the relevant period of time, by means of which he would
have been enabled to reduce his loss of income. According to the constant practice of the
DRC as well as art. 17 par. 1 lit. ii) of the Regulations, such remuneration under a new
employment contract 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.
58. Indeed, the player found employment with the Ukrainian club FC Vorskla. In accordance
with the pertinent employment contract, the player was entitled to approximately EUR
1,245 per month. Therefore, the Chamber concluded that the player mitigated his damages
in the total amount of EUR 26,145, that is, 21 times EUR 1,245.
59. Consequently, on account of the above-mentioned considerations and the specificities of
the case at hand, the Chamber decided that the club must pay the amount of EUR 498,855
to the player (i.e., EUR 525,000 minus EUR 26,145), which was to be considered a
reasonable and justified amount of compensation for breach of contract in the present
matter.
60. For the sake of completeness, the Chamber outlined that in line with article 17 of the
Regulations, no additional compensation should apply in the matter at hand in that the
termination of the Contract did not take place due to overdue payables. Equally, the
Chamber decided that in line with the principle ne ultra petita, no interest should apply on
the compensation since not requested by the Claimant.
iii. Compliance with monetary decisions
61. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24 par.
1 and 2 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.
62. In this regard, the DRC highlighted 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
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players, either nationally or internationally, up until the due amounts are paid. The overall
maximum duration of the registration ban shall be of up to three entire and consecutive
registration periods.
63. Therefore, bearing in mind the above, the DRC decided that the Respondent must pay the
full amount due (including all applicable interest) to the Claimant within 45 days of
notification of the decision, failing which, at the request of the Claimant, a ban from
registering any new players, either nationally or internationally, for the maximum duration
of three entire and consecutive registration periods shall become immediately effective on
the Respondent in accordance with art. 24 par. 2, 4, and 7 of the Regulations.
64. The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Account Registration Form, which is attached
to the present decision.
65. The DRC 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. 24 par. 8 of
the Regulations.
d. Costs
66. 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,
or match agent”. Accordingly, the Chamber decided that no procedural costs were to be
imposed on the parties.
67. 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.
68. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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REF. FPSD-8408
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Yurchenko Vladlen, is accepted.
2.
The Respondent, PAFOS F.C., must pay to the Claimant the following amount(s):
EUR 498,855 as compensation for breach of contract without just cause.
3.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
4.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, if full payment
(including all applicable interest) is not made within 45 days of notification of this decision,
the following consequences shall apply:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration of the ban shall
be of up to three entire and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary Committee
in the event that full payment (including all applicable interest) is still not made by the
end of the three entire and consecutive registration periods.
5.
The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
6.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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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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