Labour Disputes
Texto da decisão
REF. FPSD-15444
Decision of the
Dispute Resolution Chamber
passed on 16 September 2024
regarding an employment-related dispute concerning the player
Arkadii Zhelnin
BY:
Calum Beattie (Scotland)
CLAIMANT:
Arkadii Zhelnin, Russia
Represented by Mr Dupovac Feđa
RESPONDENT:
GFK Sloboda, Serbia
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REF. FPSD-15444
I. Facts of the case
1.
On 28 July 2023, the Russian player Arkadii Zhelnin (hereinafter: Claimant or player) and the
Serbian club GFK Sloboda (hereinafter: club or Respondent) concluded an employment
contract (hereinafter: the Contract) valid as from the date of signature until 8 June 2026.
2.
In accordance with art. 3 of the Contract, the Respondent undertook to pay to the Claimant
inter alia the following amounts:
-
RSD 50,000 net monthly salary;
RSD 15,000 net monthly bonus for playing in more than 50% of the official matches
in that month;
Discretionary bonuses.
3.
Pursuant to the same provision, the parties agreed that the Claimant’s remuneration shall
be paid by no later than the 20th day of the following respective month.
4.
On 7 June 2024, the Claimant put the Respondent in default, requesting RSD 400,000 net
(or 8 monthly salaries between October 2023 and May 2024), granting a deadline of 15 days
to remedy the alleged default.
5.
Allegedly on 25 June 2024, the Claimant unilaterally terminated the Contract. The relevant
termination notice reads 7 June 2024 as the date of remittance.
II. Proceedings before FIFA
6.
On 2 August 2024, the Claimant filed the claim at hand before FIFA. A summary of the
parties’ position is set out below.
a. Position of the Claimant
7.
According to the Claimant, the Respondent failed to comply with the financial obligations
of the Contract, despite being put in default and being granted substantial time to remedy
its breaches.
8.
The Claimant specified that the amount which was outstanding at the time of termination
of the Contract amounted to eight monthly salaries, far in excess of the requisite number
for just cause in accordance with art. 14bis of the Regulations.
9.
Thus, the Claimant asserted that he had just cause to terminate the Contract prematurely
and requested outstanding remuneration and compensation for breach of contract.
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REF. FPSD-15444
10. Consequently, requests for relief of the Claimant were the following (not specifying either
net or gross):
-
RSD 400,000 as outstanding remuneration;
RSD 1,200,000 as compensation;
Interest as from the due dates.
b. Position of the Respondent
11. Despite having been invited to do so, the Respondent provided no reply to the claim.
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REF. FPSD-15444
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
12. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter: the Single Judge)
analysed whether he was competent to deal with the case at hand. In this respect, he took
note that the present matter was presented to FIFA on 2 August 2024 and submitted for
decision on 16 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.
13. Furthermore, 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
Regulations on the Status and Transfer of Players (June 2024 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 Russian player
and a Serbian club.
14. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he confirmed that, in accordance with art. 26 par.
1 and 2 of the Regulations on the Status and Transfer of Players (June 2024 edition) and
considering that the present claim was lodged on 2 August 2024, the June 2024 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
15. The Single Judge 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 Single Judge
stressed the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which he 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
16. Having established the competence and the applicable regulations, the Single
Judge entered into the merits of the dispute. In this respect, the Single Judge started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Single Judge emphasised that in the following
considerations he will refer only to the facts, arguments and documentary evidence, which
he considered pertinent for assessing the matter at hand.
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REF. FPSD-15444
i. Main legal discussion and considerations
17. The Single Judge then moved to the substance of the matter, and took note of the fact that
the basis of the present dispute concerned overdue payables and compensation due to an
alleged breach of contract by the Respondent.
18. In this context, the Single Judge acknowledged that his task was to determine whether the
amounts in dispute indeed remained outstanding as claimed, and if so, whether or not this
gave rise to just cause for the Claimant to unilaterally terminate the Contract before its
term.
19. The Single Judge began by recalling the parties’ submissions, starting with the Claimant,
who argued that he had just cause to terminate the Contract due to overdue payables.
More specifically, the Claimant argued that at least two monthly salaries and a bonus
payment remained outstanding, despite a default notice and a deadline of more than 15
days being granted.
20. The Respondent, on the other hand, failed to contest the claim entirely.
21. At this stage, the Single Judge recalled the principle of the burden of proof enshrined in
art. 13 par. 5 of the Procedural Rules, pursuant to which a party that asserts a certain fact
also bears the burden of proving its veracity with adequate evidence.
22. In the case at hand, the Single Judge considered that the burden of proving that the
contractual obligations had been complied with laid with the Respondent. By failing to reply
to the claim, the allegation of non-payment remained uncontested.
23. Thus, the Single Judge was able to conclude preliminarily that the eight monthly salaries
between October 2023 and May 2024 remained outstanding.
24. With this established, the Single Judge moved on to consider the lawfulness of the
premature contractual termination.
25. In this context, the Single Judge referred to the wording of art. 14bis par. 1 of the
Regulations, pursuant to which if a club unlawfully fails to pay a player at least two monthly
salaries on their due dates, the player will be deemed to have a just cause to terminate his
contract, provided that he has put the debtor club in default in writing and has granted a
deadline of at least 15 days for the debtor club to fully comply with its financial obligation(s).
26. The Single Judge noted that the Claimant provided evidence of having put the Respondent
in default and granted a deadline of 15 days. However, the Claimant provided a copy of the
termination notice, which was dated 7 June 2024, i.e., the date of the default notice. Whilst
the Single Judge acknowledged that this appears to be merely a clerical error, he
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REF. FPSD-15444
considered that such error made it impossible to ascertain that the correspondence was
sent – as argued by the Claimant – on 25 June 2024.
27. Consequently, the Single Judge understood that the Contract was to be held as unilaterally
terminated on 7 June 2024 by the Claimant – per the termination notice sent on that day.
28. In the absence of the formal requirements of art. 14bis being met in the case at hand, the
Single Judge deemed that the lawfulness of the termination of the Contract had to be
determined in accordance with art. 14 of the Regulations, and in particular with reference
to the doctrine of ultima ratio.
29. In this context, the Single Judge laid down that, in accordance with the jurisprudence of the
Football Tribunal, only a breach or misconduct which is of a certain severity justifies the
termination of a contract. In other words, only when there are objective criteria which do
not reasonably permit to expect the 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 to ensure the fulfilment of the contractual duties by
the counterparty, such measures must be taken before terminating an employment
contract. A premature termination of an employment contract can only ever be an ultima
ratio measure.
30. In the case at hand, given the substantial amount of salaries that were established as
having remained unpaid at the time of termination (eight in total), the Single Judge
considered that, despite the demonstrable lack of a remedial period, the Respondent’s
breach of contract was so severe that a continuation of the employment relationship was
no longer conscionable for the Claimant.
31. Therefore, the Single Judge was able to conclude that the threshold of ultima ratio has been
met in the case at hand, and that, consequently, the Claimant terminated the Contract with
just cause on 7 June 2024.
ii. Consequences
32. Having stated the above, the Single Judge turned its attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
33. The Single Judge observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are equivalent to eight salaries
under the contract, amounting to RSD 400,000.
34. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Single Judge decided that the Respondent is liable to pay to the Claimant the amounts
which were outstanding under the contract at the moment of the termination, i.e.
RSD 400,000 (i.e. eight times RSD 50,000).
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REF. FPSD-15444
35. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Single Judge in this regard, the latter decided to award the Claimant interest at the
rate of 5% p.a. on the outstanding amounts as from the following dates:
-
On the amount of RSD 50,000, as from 21 November 2024 until the date of effective
payment;
On the amount of RSD 50,000, as from 21 December 2024 until the date of effective
payment;
On the amount of RSD 50,000, as from 21 January 2024 until the date of effective
payment;
On the amount of RSD 50,000, as from 21 February 2024 until the date of effective
payment;
On the amount of RSD 50,000, as from 21 March 2024 until the date of effective
payment;
On the amount of RSD 50,000, as from 21 April 2024 until the date of effective
payment;
On the amount of RSD 50,000, as from 21 May 2024 until the date of effective
payment;
On the amount of RSD 50,000, as from 21 June 2024 until the date of effective
payment.
36. Having stated the above, the Single Judge 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 Single
Judge 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.
37. In application of the relevant provision, the Single Judge 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 Single Judge
established that no such compensation clause was included in the employment contract at
the basis of the matter at stake.
38. As a consequence, the members of the Single Judge 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 Single Judge recalled that
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REF. FPSD-15444
said provision provides for a non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable.
39. Bearing in mind the foregoing as well as the claim of the player, the Single Judge 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 Single Judge
concluded that the amount of RSD 1,166,666.66 (i.e. the residual value of the Contract, or
23 times RSD 50,000 between July 2024 and May 2026 plus pro-rata 8 days for the month
of June 2026) serves as the basis for the determination of the amount of compensation for
breach of contract.
40. In continuation, the Single Judge 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 Single Judge 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.
41. In the case at hand, the Single Judge noted that the Claimant failed to conclude a new
employment contract following the termination of the Contract at stake. Consequently,
neither mitigation nor additional compensation were applicable in the case at hand.
42. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Single Judge decided that the club must pay the amount
of RSD 1,166,666.66 to the player (i.e. the residual value of the Contract), which was to be
considered a reasonable and justified amount of compensation for breach of contract in
the present matter.
43. Lastly, taking into consideration the player’s request as well as the constant practice of the
Single Judge in this regard, the latter decided to award the player interest on said
compensation at the rate of 5% p.a. as from 27 June 2024 until the date of effective
payment.
iii. Compliance with monetary decisions
44. Finally, taking into account the applicable Regulations, the Single Judge 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.
45. In this regard, the Single Judge 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
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REF. FPSD-15444
new 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.
46. Therefore, bearing in mind the above, the Single Judge 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.
47. 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.
48. The Single Judge 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
49. 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, the Single Judge decided that no procedural costs were to be
imposed on the parties.
50. 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.
51. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
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REF. FPSD-15444
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Arkadii Zhelnin, is partially accepted.
2.
The Respondent, GFK Sloboda, must pay to the Claimant the following amount(s):
- RSD 400,000 as outstanding remuneration plus 5% interest p.a. as follows:
- on the amount of RSD 50,000 as from 21 November 2023 until the date of effective payment;
- on the amount of RSD 50,000 as from 21 December 2023 until the date of effective payment;
- on the amount of RSD 50,000 as from 21 January 2024 until the date of effective payment;
- on the amount of RSD 50,000 as from 21 February 2024 until the date of effective payment;
- on the amount of RSD 50,000 as from 21 March 2024 until the date of effective payment;
- on the amount of RSD 50,000 as from 21 April 2024 until the date of effective payment;
- on the amount of RSD 50,000 as from 21 May 2024 until the date of effective payment;
- on the amount of RSD 50,000 as from 21 June 2024 until the date of effective payment.
- RSD 1,166,666.66 as compensation for breach of contract plus 5% interest p.a. as from
27 June 2024 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
5.
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.
6.
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.
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REF. FPSD-15444
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-15444
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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