F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2019-2020) – fifa.com – atto non ufficiale – Decision 28 February 2020

Decision of the

Dispute Resolution Chamber (DRC) judge

passed on 28 February 2020,

by John Newman (USA), DRC judge,

on the claim presented by the player,

Vyacheslav Sushkin, Russia,

represented by Mr Aleksandrs Bogdanovs

as Claimant

against the club,

FC Neftchi, Uzbekistan

as Respondent

regarding an employment-related dispute

between the parties

I. Facts of the case

1. On 20 February 2018, the Russian player, Vyacheslav Sushkin (hereinafter: Claimant) concluded an employment contract (hereinafter: contract) with the Uzbek club, FC Neftchi (hereinafter: Respondent), valid as from the date of signature until 30 November 2018, for a monthly salary of USD 2,000.

2. Furthermore, pursuant to clause 3.2 of the contract, the Respondent further committed itself to, inter alia, provide the Claimant with the following:

a) “High quality medical monitoring of the [Claimant’s] health”;

b) “A health insurance contract for the benefit of the [Claimant] against accidents and injury at work for the validity period of this contract”.

3. On the same date, 20 February 2018, the parties further signed an additional agreement, by means of which, “in order to motivate the football player to an effective and entertaining game” the club committed itself to “pay de relocation allowance in the sum of 5000 US dollars”.

4. In his claim, the Claimant stated that, on 1 March 2018 he “participated in an official match for the Club, during which his left knee had started aching”. In this regard, the Claimant stated that, on the same date, the doctor of the Respondent indicated “that he should not be [worried] […] and that he shall take part in all activities, including training sessions and matches.

5. The Claimant argued that on 7 March 2018, after a training session, he informed the doctor of the Respondent “that the pain in his left knee [was] getting worse”. Therefore, the doctor allegedly informed the coaching staff, however, according to the Claimant, the coaching staff maintained that “[the Claimant] shall try to participate in an upcoming match, scheduled on 10 March 2018, since the match is of high importance for the [Respondent]”. In this respect, according to the Claimant, he participated in said match.

6. The Claimant held that, on 19 March 2018, due to the fact that “the aching and discomfort had neither disappeared nor decreased”, the medical examination showed “that the meniscus of the [Claimant’s] left knee had been damaged”. Notwithstanding the above, as per the Claimant, the doctor of the Respondent maintained that he “should participate in the training sessions”.

7. According to the player, on 28 March 2018, “the doctor prescribed the course of medical treatment for the injured knee by means of injections”. As per the Claimant, since “the Club refused to purchase the injections”, “the Player had no choice but to purchase the prescribed injections, at his own expense”.

8. As per the Claimant, on 8 April 2018, during a training session, his “left knee had been injured, severely”. In this context, on 10 April 2018, the Claimant indicated that, due to his severe injury, the Respondent allegedly invited him to sign a termination agreement, which he subsequently refused to sign.

9. The Claimant maintained that on the following day, “acting on his own initiative and at his own expense, [the Claimant] attended the medical centre Premium Medical”, where they examined his injury and concluded that “the magnetic resonance images identified that the meniscus of left knee had been torn”.

10. According to the Claimant, said injury required surgery, but held that the Respondent refused to pay the said surgery.

11. In this context, on 19 April 2018, the Claimant sent a letter to the Respondent requesting the payment of the surgery.

12. Due to the lack of reply, the Claimant sent a further correspondence on 27 April 2018. In said correspondence, the Claimant requested the Respondent to cover his “full rehabilitation in accordance with the [employment] contract of 20.02.2018, clause 3.2.3. and 3.2.4” and the payment of “arrears […] for March, the outstanding [amount of USD 2,000], and so far [his] medical expenses [in the amount of USD 226]”.

13. According to the Claimant, on 30 April 2018 the Respondent allegedly offered him to terminate the contract by signing a mutual termination agreement. In this respect, the Claimant explained that he refused to sign said agreement. In view of the above, and according to the Claimant, the coaching staff informed him that “if he [did] not accept the terms of the termination agreement […] then the [Respondent was] going to assume that the [Claimant] had been absent […] from 7 April 2018 up to 30 April 2018, without any good reason, and, on this basis, the [Respondent was] going to dismiss the [Claimant]”.

14. On 1 May 2018, the Claimant sent a further correspondence requesting the payment of the required surgery. Nevertheless, as per the Claimant, the Respondent did not reply to said correspondence.

15. On 6 May 2018, given that all of the Claimant’s previous correspondences “remained ignored”, he sent a letter to the Respondent indicating that “twenty-eight days have passed since my injury, I made the decision to return back to St. Petersburg for the surgery operation […]”.

16. On 28 May 2018, the Claimant sent a default notice requesting the payment of the outstanding salaries and the medical expenses he incurred, granting a deadline until 8 June 2018.

17. On 9 June 2018, the Claimant sent a new default notice, granting a deadline until 17 June 2018. As per the Claimant, the Respondent failed to comply with the payment of the following:

a. USD 4,950, corresponding to part of the March 2018 salary, as well as the monthly salaries of April and May 2018 (USD 950 + USD 2,000 + USD 2,000);

b. USD 5,000, corresponding to “relocation allowance”;

c. USD 226, corresponding to “medical expenses”;

d. USD 1,501, “for the surgery operation on the left knee joint”;

e. USD 214, corresponding to “travelling expenses for the flight to St. Petersburg”.

18. On 22 June 2018, the Claimant unilaterally terminated the contract in writing.

19. On 15 February 2019, the Claimant lodged a claim in front of FIFA against the Respondent for breach of contract requesting the payment the following:

a) USD 4,950 as outstanding remuneration, plus an interest of 5% p.a. as from the respective due dates until the date of effective payment, detailed as follows:

i. USD 950, corresponding to the residual part of the salary of March 2018 and due on 10 April 2018;

ii. USD 2,000, corresponding to the salary of April 2018 and due on 10 May 2018;

iii. USD 2,000, corresponding to the salary of May 2018 and due on 10 June 2018.

b. USD 28,941 as compensation, plus an interests of 5% p.a. as “from the date when the [Respondent] breached the employment contract or the sum fell due” until the date of effective payment, detailed as follows:

i. USD 15,000, corresponding to the residual value of the contract (USD 10,000 corresponding to 5 monthly salaries + USD 5,000 corresponding to “the relocation allowance”;

ii. USD 1,941, corresponding to the “incurred medical costs”;

iii. USD 12,000 “as discretionary compensation”.

20. The Claimant further requested the imposition of sporting sanctions against the Respondent.

21. In its reply, and with regard to the knee injury, the Respondent firstly argued that the Claimant “hid a knee injury” before the signature of the employment contract.

22. In this regard, the Respondent sustained that the Claimant “stopped playing due to the reason that he had been injured in the game according to his words. But after a medical check-up, it was revealed that he had been injured when he was playing abroad, a long time ago”.

23. In this context, the Respondent held that, due to the aggravation of his knee injury, its “management decided to terminate the contract with [the Claimant]”.

24. Moreover, the Respondent pointed out that that the Claimant was absent from training sessions as from 20 March 2018 “and did not submit any supporting documents to it”. In this context, the Respondent provided a copy of a “Report” allegedly sent by the Head Coach, holding that the Claimant “from 20.03.2018 does not come to trainings” and, consequently, “[the Claimant] violated the internal labour rules”.

25. After being requested to do so, the Claimant informed FIFA that he had not signed any new employment contract following the termination of his contract with the Respondent.

II. Considerations of the DRC Judge

1. First of all, the DRC Judge analysed whether it was competent to deal with the case at hand. In this respect, it took note that the present matter was submitted to FIFA on15 February 2019 and submitted for decision on 28 February 2020. Taking into account the wording of art. 21 of the 2019 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 DRC Judge referred to art. 3 par. 1 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 and par. 2 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 the matter at stake, which concerns an employment-related dispute with an international dimension between a Russian player and an Uzbek club.

3. In continuation, 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 (edition 2018) and considering that the present claim was lodged on 15 February 2019, the 2018 edition of the said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

4. The competence of the DRC Judge and the applicable regulations having been established, the DRC Judge entered into the substance of the matter. In this respect, the DRC Judge started by acknowledging all the above-mentioned facts and arguments as well as the documentation on file. However, the DRC Judge 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.

5. In this respect, the DRC Judge recalled that the Claimant and the Respondent signed an employment contract which was valid as from 20 February 2018 until 30 November 2018. The DRC Judge acknowledged that, in accordance with the employment contract, the Respondent was obliged to pay to the Claimant a monthly salary of USD 2,000. In addition, the DRC Judge recalled that the parties had signed an additional agreement by means of which the Claimant was entitled to USD 5,000 as “Relocation Allowance”.

6. The DRC Judge further took into consideration that the Claimant held that he unilaterally terminated the contract on 22 June 2018, while the Respondent maintained that it “decided to terminate the contract with” the Claimant.

7. In continuation, the DRC Judge recalled that the Claimant lodged a claim before FIFA for breach of contract, requesting to be awarded USD 4,950 as outstanding remuneration, as well as USD 28,941 as compensation for breach of contract.

8. Having said this, the DRC Judge firstly deemed it fundamental to determine which of the parties terminated the contract and on which dated. In this context, the DRC noted that the Claimant submitted a termination letter, dated 22 June 2018, by means of which he unilaterally terminated the contract. On the other hand, the DRC Judge noted that the Respondent failed to provide such evidence.

9. Consequently the DRC Judge established that the Claimant unilaterally terminated the contract on 22 June 2018.

10. In light of the above, the DRC Judge established that the primary issue at stake is determining as to whether the Claimant had a just cause to terminate the contract with the Respondent on 22 June 2018 and to determine the consequences thereof. In this respect, the DRC Judge deemed it essential to make a brief recollection of the facts as well as the parties’ main arguments and the documentation on file.

11. In this context, the DRC Judge recalled that the Claimant argued that he suffered a knee injury which required surgery, but that the Respondent refused to pay for the surgery. Moreover, the DRC Judge underlined that, as per the Claimant, the Respondent had failed to pay him part of the monthly salary for March 2018 was outstanding, as well as the entire salaries for April and May 2018. Consequently, the DRC Judge noted that the Claimant stated that he had a just cause to terminate the contract on 22 June 2018.

12. In continuation, the DRC Judge observed that the Respondent, for its part, held that the Claimant had suffered the knee injury before signing the employment contract, and that the Claimant had been absent from training sessions.

13. With regard to the Claimant’s arguments, the DRC Judge placed particular emphasis on the default letters sent by the Claimant to the Respondent on 28 May 2018 and 9 June 2018 respectively. In this context, the DRC Judge noted that, by means of his first default letter, the Claimant granted the Respondent a deadline until 8 June 2018 to remedy the default. Moreover, the DRC Judge observed that, by means of his second default letter, the Claimant granted the Respondent a deadline until 17 June 2018 to remedy the default.

14. Having stated the above, the DRC Judge concluded that the Claimant had substantiated his claim pertaining to outstanding monthly salary with sufficient documentary evidence in accordance with art. 12 par. 3 of the Procedural Rules. That is, the DRC Judge concluded that the Claimant presented sufficient documentation relating to his claim for the outstanding monthly salaries provided in the contract.

15. In this context, the DRC Judge further highlighted that a total of 25 days has passed between the Claimant’s first default letter (i.e. 28 May 2018) and his letter by means of which he terminated the contract (i.e. 22 June 2018).

16. Similarly, the DRC Judge concluded that the Respondent failed to provide any convincing evidence that could justify the non-payment of the monthly salaries.

17. Consequently, given that it remained undisputed that more than two monthly salaries were outstanding while taking into account the Claimant’s default letters, the DRC Judge concluded that the Claimant terminated the employment contract on 22 June 2018 with just cause in accordance with art. 14 bis of the Regulations.

18. That said, the DRC Judge concluded that the Respondent is to be held liable for the early termination of the employment contract with just cause by the Claimant and should therefore bear the consequences of its unjustified breach of the employment contract, including the possible payment of compensation to the Claimant, in addition to any possibly outstanding amounts at the time of termination.

19. Having established the above, and before entering the matter of the calculation of the compensation for breach of contract payable by the Respondent, the DRC Judge first proceeded to establish the amount of outstanding remuneration, if any, still due to the Claimant by Respondent on the date of the decision.

20. In this context, the DRC Judge firstly recalled that, according to the Claimant, a total amount of USD 4,950 was outstanding to him, corresponding to part of the March 2018 salary, as well as the monthly salaries of April and May 2018.

21. With regard to the outstanding salary and rent money, the DRC Judge referred to its previous deliberations, and determined that the amount of USD 4,950 corresponding to the monthly salaries, are still due to the Claimant.

22. Consequently, the DRC Judge decided that, in accordance with the general legal principle of pacta sunt servanda, the Respondent is liable to pay to the Claimant outstanding remuneration in the total amount of USD 4,950.

23. In addition, taking into consideration the Claimant’s claim, the DRC Judge decided to award the Claimant interest at the rate of 5% p.a. on the amount of USD 4,950, as from the respective due dates until the date of effective payment.

24. In continuation, the DRC Judge noted that, in his claim, the Claimant inter alia requested as USD 1,941, corresponding to the incurred medical costs and related expenses, as well as USD 5,000, corresponding to the relocation allowance based on the additional agreement.

25. In this context, the DRC Judge noted that, as per the contract, the Respondent was obligated to provide the Claimant with the following: “High quality medical monitoring of the [Claimant’s] health” as well as “a health insurance contract for the benefit of the [Claimant] against accidents and injury at work for the validity period of this contract”.

26. Furthermore, the DRC Judge referred to the additional agreement signed between the parties on 20 February 2020, holding that there was little room for doubt as to the Respondent’s commitment to pay to the Claimant the amount of USD 5,000 as relocation allowance.

27. In continuation, the DRC Judge referred to the reply submitted by the Respondent and determined that neither the medical costs nor related expenses incurred by the Claimant, nor the relocation allowance were contested by the Respondent.

28. Given the above, the DRC Judge decided that, in accordance with the general legal principle of pacta sunt servanda, the Respondent is liable to pay to the Claimant the total amount of USD 6,941, corresponding to the incurred medical costs and related expenses, as well as to the relocation allowance.

29. In continuation, the DRC Judge focused its attention on the calculation of the amount of compensation for breach of contract payable by the Respondent to the Claimant in the case at stake. In doing so, the members of the DRC Judge first 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 Claimant 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.

30. In application of the relevant provision, the DRC 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 DRC Judge established that no such compensation clause was included in the employment contract at the basis of the matter at stake.

31. As a consequence, the DRC Judge determined that the amount of compensation payable by the Respondent to the Claimant had to be assessed in application of the other parameters set out in art. 17 par. 1 of the Regulations. The DRC Judge recalled that said provision provides for a non-exhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable. Therefore, other objective criteria may be taken into account at the discretion of the deciding body. In this regard, the DRC Judge emphasized beforehand that each request for compensation for contractual breach has to be assessed on a case-by-case basis taking into account all specific circumstances of the respective matter.

32. In order to estimate the amount of compensation due to the Claimant in the present case, the DRC Judge first turned its attention to the remuneration and other benefits due to the Claimant under the existing contract and/or the new contract(s), which criterion was considered to be essential. The DRC Judge deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations allows it to take into account both the existing contract and the new contract, if any, in the calculation of the amount of compensation.

33. Bearing in mind the foregoing, the DRC Judge proceeded with the calculation of the monies payable to the Claimant under the terms of the employment contract as from its date of termination with just cause by the Claimant, i.e. 22 June 2018, until 30 November 20198 and concluded that the Claimant would have received USD 12,000 in total as remuneration had the contract been executed until its expiry date.

34. Consequently, the DRC Judge concluded that the amount of USD 12,000 serves as the basis for the final determination of the amount of compensation for breach of contract in the case at hand.

35. In continuation, the Chamber verified as to whether the Claimant had signed an employment contract with another club during the relevant period of time, by means of which he would have been able to reduce his loss of income. According to the constant practice of the DRC, such remuneration under a new employment contract shall be taken into account in the calculation of the amount of compensation for termination of contract with just cause in connection with the player’s general obligation to mitigate his damages.

36. Having said this, the DRC noted that according to the information on file, the Claimant remained unemployed for the period of 22 June 2018 until 30 November 2018.

37. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the Chamber decided that the Respondent must pay the amount of USD 12,000 to the Claimant as compensation for breach of contract.

38. In addition, taking into account the Claimant’s request, the DRC Judge decided that the Respondent must pay to the Claimant interest of 5% p.a. on the amount of compensation as of the date on which the claim was lodged, i.e. 15 February 2019, until the date of effective payment.

39. Furthermore, taking into account the consideration under number II.3. above, the DRC Judge 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.

40. In this regard, the DRC Judge established that, in virtue of the aforementioned provision, it has competence to impose a sanction on the club. More in particular, the DRC Judge pointed out that, against clubs, the sanction shall consist in a ban from registering any new players, either nationally or internationally, up until the due amount is paid and for the maximum duration of three entire and consecutive registration periods.

41. Therefore, bearing in mind the above, the DRC Judge decided that, in the event that the Respondent does not pay the amount 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 Respondent, 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.

42. Finally, the DRC Judge recalled that the above-mentioned sanction 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.

43. The Dispute Resolution Chamber Judge concluded its deliberations in the present matter by establishing that any further claims lodged by the Claimant are rejected.

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Decision of the DRC Judge

1. The claim of the Claimant, Mr Vyacheslav Sushkin, is partially accepted.

2. The Respondent, FC Neftchi, has to pay to the Claimant outstanding remuneration in the amount of USD 4,950, plus 5% interest p.a. as follows:

- 5% interest p.a. on the amount of USD 950 as from 11 April 2018 until the date of effective payment;

- 5% interest p.a. on the amount of USD 2,000 as from 11 May 2018 until the date of effective payment;

- 5% interest p.a. on the amount of USD 2,000 as from 11 June 2018 until the date of effective payment.

3. The Respondent has to pay to the Claimant the amount of USD 6,941.

4. The Respondent has to pay to the Claimant compensation for breach of contract in the amount of USD 12,000, plus 5% interest p.a. as from 15 February 2019 until the date of effective payment.

5. The Claimant is directed to inform the Respondent, immediately and directly, preferably to the email address as indicated on the cover letter of the present decision, of the relevant bank account to which the Respondent must pay the amounts plus interest mentioned under points III.2, III.3 and III.4 above.

6. The Respondent shall provide evidence of payment of the due amounts plus interest in accordance with points III.2, III.3 and III.4 above to FIFA to the e-mail address psdfifa@fifa.org, duly translated into one of the official FIFA languages (English, French, German, Spanish).

7. In the event that the amounts plus interest due in accordance with points III.2, III.3 and III.4 above are not paid by the Respondent within 45 days as from the notification by the Claimant of the relevant bank details to the Respondent, the Respondent shall be banned 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 (cf. art. 24bis of the Regulations on the Status and Transfer of Players).

8. The ban mentioned in point III.7 above will be lifted immediately and prior to its complete serving, once the due amount plus interest is paid.

9. In the event that the amounts due in accordance with points III.2, III.3 and III.4 above plus interest are 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 FIFA’s Disciplinary Committee for consideration and a formal decision.

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Note related to the publication:

The FIFA administration may publish decisions issued by the Players’ Status Committee or the DRC. Where such decisions contain confidential information, 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 Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber).

Note related to the appeal procedure:

According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS.

The full address and contact numbers of the CAS are the following:

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Tel: +41 21 613 50 00

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e-mail: info@tas-cas.org

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer