F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2020-2021) – fifa.com – atto non ufficiale – Decision 4 November 2020
Decision of the
DRC Judge
passed on 4 November 2020,
regarding an employment-related dispute concerning the player Pavel Kruk
BY:
Alexandra Gómez Bruinewoud (Uruguay / The Netherlands), DRC Judge
CLAIMANT:
Pavel Kruk, Belarus
RESPONDENT:
FK Tukums 2000, Latvia
I. FACTS OF THE CASE
1. On 15 February 2020, the parties concluded an employment contract (hereinafter: the contract), valid
as from the date of its signature until 31 December 2020.
2. In accordance with clause 3.1.1 of the contract, the club undertook to pay to the player a monthly
salary of EUR 1,010 gross (the Claimant argues that the net salary amounts to EUR 700).
3. On the same date, i.e. 15 February 2020, the parties concluded an additional contract (hereinafter:
the additional contract), whose clause 1 reads as follows: “The club establishes for the Football Player
a monthly bonus of [EUR] 950 net (nine hundred fifty [euros])”.
4. Clause 6.4 of the contract reads as follows: “The Club is entitled to terminate the Contract without
application of sporting sanctions of any kind, by notifying the Football Player on execution of its right
and paying the amount of three average salaries to the Football Player (buyout clause). The notification
of the buyout shall be given within ten days and is payable on the date of termination of the
Contract”.
5. By means of his letter dated 1 June 2020 (note: document on file, along with proof of delivery
thereof), which was addressed to the club, the player explained that, after the Covid-19 outbreak,
the club allowed the players to travel to “the countries of their origin until further notification with
respect of the trainings restart […]”.
6. In the same letter, the player held that he found out in the media that the “domestic championship
in Latvia is planned to start at the end of June”.
7. Moreover, also in his default notice dated 1 June 2020, the player stressed that, in May 2020, other
players from the team were summoned by the club and would resume trainings. Therefore, in his
default notice, the player: 1.) requested the club to provide him, within the following 4 days, with the
information regarding the trainings’ dates; and 2.) put the club in default of payment in the amount
of EUR 1,900, corresponding to the monthly bonuses of March and April 2020 in the amount of EUR
950 each, granting the club a 10 days’ deadline to remedy the default. 7. Furthermore, also in his
default notice of 1 June 2020, the player informed the club about his wish to continue professionally
engaged with the club and perform his contractual obligations; but also stressed that, should the club
wish otherwise, “let’s discuss all matters in amicable way, without proceedings before FIFA Dispute
Resolution Chamber”.
8. Thereafter, on 11 June 2020, the player sent a second default notice, dated 10 June 2020, to the
club, whereby the player ascertained having orally reached a mutual termination agreement with the
club. According to the player, the parties agreed to mutually terminate the contract on the condition
of the club paying to the player the total amount of EUR 5,500 net. In this regard, in this second
default notice, the player held that, upon the payment by the club of the aforesaid amount, the parties
“will immediately terminate the contract by signing appropriate mutual agreement and any further
related claims shall be considered as null and void”.
9. By means of the aforementioned second default notice, the player granted the club a deadline until
22 June 2020 to “finalize matter on termination of the contract pursuant to the conditions agreed
on this date”.
10. Moreover, the player stated that, should the club not accept the terms written in that second default
notice, the club would confirm that it is not interested in the player’s services and that, hence, the
player would be entitled to terminate the contract without just cause. In respect to the
aforementioned scenario, the player further stressed that, “all previous arrangement regarding
condition of the contract mutual termination will be cancelled and I have to request before FIFA
Dispute Resolution Chamber full value of the contract remaining remunerations”.
11. In this context, on 23 June 2020, in the absence of reply by the club to his second default notice, the
player unilaterally terminated the contract in writing on the basis of the 2 following reasons: 1.) The
abusive conduct of the club upon its lack of interest in the player’s services, demonstrated by the fact
that the club did not summon the player for training sessions and by the fact that the team “started
to play without [the player’s] participation in the domestic top division” –allegedly 2 matches were
played before the date on which the player terminated the contract–; and 2.) the overdue payments,
due to the player, that allegedly amounted to EUR 3,550.
12. In reply thereto, the Respondent allegedly sent a letter to the Claimant on 9 July 2020. By means of
the said letter, the Respondent invited the player to “return to the team” and “start fulfilling [his]
contract obligations as soon as possible”. In the same letter, the club stressed that the player has
always been a member of the team, insofar he was included in the team’s official squad for the season
2020. Moreover, in the said correspondence, the Respondent stated that the Claimant’s remuneration
amounts to EUR 1,010 gross (the Respondent did not refer to the additional contract).
13. On 7 July 2020, the player lodged a claim against the club before FIFA. In his request for relief, the
player requested to be awarded outstanding remuneration and compensation for breach of contract
in the total amount of EUR 15,100, plus 5% interest p.a. as from the respective due dates until the
date of effective payment, broken down by the Claimant as follows:
Outstanding remuneration: EUR 4,815:
- EUR 950 corresponding to the monthly bonus of March 2020;
- EUR 950 corresponding to the monthly bonus of April 2020;
- EUR 1,650 (700 + 950) corresponding to the full salary of May 2020;
- EUR 1,265 corresponding to the salary of June 2020 (as from 1 June 2020 until the date of
termination of the contract, i.e. 23 June 2020; calculated by the Claimant itself on a prorata
basis).
Compensation for breach of contract: EUR 10,285:
- EUR 385 corresponding to the remaining salary of June 2020;
- EUR 9,900 corresponding to the residual value of the contract, i.e. the monthly salaries as
from July 2020 until December 2020 in the amount of EUR 1,650 each (1,650*6 = 9,900).
14. In his claim, the Claimant argued that, since mid of May 2020, the Respondent restarted unofficially
its preparation to relaunch the Latvian domestic top League and the Claimant was “prevented” from
participating in training sessions and matches. In this respect, the Claimant highlighted that, apart
from his right to receive his contractual remuneration, he has the right to “be given the possibility to
compete with his fellow teammates in the first team’s official matches”, but the club has prevented
him from doing so.
15. In this sense, the Claimant argued that, as a consequence of being excluded from trainings, he is
“facing irreparable harm with respect to [his] future chances of finding another club of high level after
expiry of the contract”, since a player “who is not actively participating in competitions depreciates
on the market and reduces his future career opportunities”.
16. Furthermore, the Claimant referred to the conduct of the club, which failed to reply to all of the
player’s letters and failed to reach a written termination agreement. In this regard, the Claimant held
that the club was trying to put the Claimant under pressure in order to prematurely terminate the
contract, which constitutes an abusive conduct.
17. Moreover, the Claimant held that, at the date of termination, i.e. 23 June 2020, more than 2 monthly
salaries were outstanding, and that, by means of his correspondence dated 1 and 11 June 2020, he
granted the Respondent deadlines of 10 and 11 days, respectively, in order for the latter to remedy
the default, which the club did not.
18. Thus, the Claimant held that he terminated the contract with just cause on 23 June 2020, in
application of art. 14bis of the RSTP.
19. The Respondent, on its part, argued that the player returned to Belarus after the Covid-19 outbreak,
which was allowed by the club. Nevertheless, the Respondent stressed that, in May 2020, it was
officially announced that the Latvian Championship would start in June 2020 and that the trainings
would resume as from 1 June 2020.
20. In this context, the Respondent held that all players were informed about the aforementioned training
dates, including the Claimant (note: no supporting document provided by the Respondent in this
regard); but the Claimant did not show up for the training session on 1 June 2020.
21. As to the amounts claimed by the Claimant, the Respondent attached 2 bank checks, where 2 banking
transfer wires appear:
22. The first of the payments provided by the Respondent, in the amount of EUR 688.82, was made to
the player on 16 April 2020. It must be noted that, in the payment details, the following is stated as
consideration of the wire transfer: “alga + avanss”; which can be translated from Latvian into English
as “Salary and advance payment”.
23. The second of the payments provided by the Respondent, also in the amount of EUR 688.82, was
made to the player on 14 May 2020 and its consideration reads as follows: “atvalinajuma nauda”;
which can be translated from Latvian into English as “vacation money”.
24. The Respondent referred to its letter dated 9 July 2020, by means of which it invited the player to join
the team and resume its professional; which was allegedly ignored by the Claimant.
25. Furthermore, the Respondent stressed that the player was not given any permission as to miss
trainings and/or official matches. In this respect, the Respondent held that, on 16 June 2020, the team
played its first official match and that player was not present, so he could not participate.
26. Moreover, the Respondent emphasized that, since 1 June 2020, the player has ignored their appeals,
“did not come to the club location and did not provide [the club] with any actual and valid reason
why he still did not come to the club, what is [a] very serious violation of the [RSTP] from his side”.
27. It its statement of defence, the Respondent requested the DRC to reject the claims of the Claimant
and invited the latter to “appear to the club location in shortest time”.
28. On 22 October 2020, the Claimant informed our services that, after the termination of the contract
with the Respondent, i.e. as from 23 June 2020, until the present date, he has not signed any new
contract by means of which he could have mitigated his damages (the information provided by the
Claimant matches the information contained in TMS).
II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER JUDGE
1. First of all, the Dispute Resolution Chamber judge (hereinafter also referred to as DRC judge) analyzed
whether he was competent to deal with the case at hand. In this respect, he took note that the
present matter was submitted to FIFA on 7 July 2020 and submitted for decision on 4 November
2020. Taking into account the wording of art. 21 of the June 2020 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 and 2 of the Procedural Rules and confirmed
that, in accordance with art. 24 par. 1 and 2 in combination with art. 22 lit. b) of the Regulations on
the Status and Transfer of Players, the DRC judge is competent to deal with the matter at stake, which
concerns an employment–related dispute with an international dimension.
3. In continuation, the DRC judge analysed which regulations should be applicable as to the substance
of the matter. In this respect, the DRC judge confirmed that in accordance with art. 26 par. 1 and 2
of the Regulations on the Status and Transfer of Players (June 2020 edition), and considering that the
claim was lodged on 7 July 2020, the June 2020 edition of the aforementioned regulations
(hereinafter: the 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 DC judge started by
acknowledging all the above-mentioned facts as well as the arguments and the documentation
submitted by the parties. 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. Having said that, the DRC judge acknowledged that, on 15 February 2020, the Claimant and the
Respondent signed 2 different agreements: the main employment contract and an additional
contract; valid as from 15 February 2020 until 31 December 2020. Based on said agreements, the
Respondent undertook to pay to the Claimant, inter alia, a monthly salary of EUR 1,010, as well as a
monthly bonus in the amount of EUR 950.
6. In this context, the DRC judge noted that it was acknowledged by both parties that, after the Covid-
19 outbreak, all foreign players of the team were allowed to return to their countries of origin and that the Claimant player did so. Moreover, it was also acknowledged by both parties that it was
officially announced that, at the end of June 2020, the Latvian Championship would resume.
7. In continuation, the DRC judge observed that one of the two main conflicting points regarding the
present case concerns the fact of whether the player was properly summoned to join the team and
start participating in trainings at the beginning of June 2020.
8. In this respect, the DRC judge noted that the player argues that the club summoned his teammates
but never summoned him, as well as that the club did not reply to any of his 2 default notices, dated
1 and 10 June 2020, which shows the club’s lack of interest in his services and led to the unilateral
termination of the contract made by the player after the club’s breach of the contract.
9. The DRC judge acknowledged the arguments of the Respondent, who –on its part– argued that: all
players were informed about the dates on which they had to resume the trainings; that the player did
not show up; and that he did not join the team even though he was requested to do so by means of
the club’s letter dated 9 July 2020.
10. In this context, the DRC judge noted that the player provided evidence of having sent to the club the
defaults notices dated 1 and 10 June 2020, whereby the player requested the club to provide him
with instructions as to when he should join the team and resume his professional activities; whereas
the club failed to provide evidence of having replied to said default notices and only provided a letter
allegedly issued to the player on 9 July 2020, once the player had already terminated the contract. In
view of the above, the DRC judged determined that the club did show a lack of interest in the player’s
services, insofar the latter failed to reply to the default notices sent by the player, and failed to inform
him about the trainings’ dates and sporting instructions.
11. The DRC judge stressed that the second of the 2 main conflicting points was the non-payment of the
player’s remuneration. Preliminary, the DRC judge noted that, whereas the Claimant holds that his
monthly salary amounts to EUR 1,650 (700 + 950), as per both the contract and the additional
contract; the Respondent holds that the Claimant’s monthly salary amounts to EUR 1,010 gross.
12. In this respect, the DRC judge noted that, along his statement of claim, the Claimant provided signed
copies of both, the contract and the additional contract, both of which contain the required essentialia
negotii and are –therefore–, to be considered valid and binding agreements. As to the conversion
from gross to net of the monthly amount of EUR 1,010, due to the player as per the contract, since
the Respondent did not contest the conversion made by the Claimant, it is to be presumed that the
monthly amount due to the Claimant as per the contract amounts to EUR 700 net, which, summed
to the monthly bonus of EUR 950 (whose nature shall have the consideration of fixed monthly salary,
insofar its payment was not subject to the player achieving any objective, but was part of the player’s
monthly remuneration) amounts to a total monthly salary of EUR 1,650 net, as brought forward by
the Claimant.
13. On his part, -continued the DRC judge- the player holds that, at the date of termination, more than
2 monthly salaries were outstanding and that, hence, it terminated the contract with just cause on
23 June 2020.
14. In this respect, the DRC judge acknowledged that, on its part, the Respondent only provided two
bank checks corresponding to 2 transfer wires made in favour of the player on 16 April 2020 and 14 May 2020, respectively, where it can be seen that the club paid 2 instalments of EUR 688.82 each to
the player.
15. In this context, the DRC judge wished to highlight that transfer wire made on 16 April 2020, in the
amount of EUR 688.82, has, as a consideration for its payment, the title “Salary and advance
payment”. This fact corroborates, that the monthly salary of the player in accordance with the
contract did amount to approximately EUR 700 net. Moreover, the DRC judge concluded that, by
providing this bank check, the Respondent sufficiently proved having paid the salary of April 2020, at
least the part due to the player as per the contract.
16. As to the second transfer wire, also in the amount of EUR 688.82, which was paid by the club to the
player on 14 May 2020, the DRC judge noted that it had the consideration of “vacation payment”.
Hence, the DRC judge determined that said payment did not correspond to the player’s fixed
remuneration and shall not offset the club’s financial debts it has towards the player. Hence, taking
into account that the player’s monthly remuneration amounts to EUR 1,650, it can be established
that, at the date of termination of the contract, i.e. 23 June 2020, the amount of EUR 3,550 was
outstanding (EUR 950 corresponding to the “bonus” of March + EUR 950 corresponding to the
“bonus” of April + EUR 1,650 corresponding to the full salary of May, all 2020). Hence, since the
outstanding amount of EUR 3,550 corresponds to more than 2 monthly salaries (1,650*2 = 3,300);
and since the Claimant had put the Respondent in default of payment on 2 occasions, i.e. on 1 and
11 June 2020, it can be concluded that the Claimant terminated the contract with just cause on 23
June 2020 ex. art. 14bis of the RSTP.
17. Bearing in mind the previous considerations, the DRC judge went on to deal with the consequences
of the early termination of the employment contract.
18. First of all, the DRC judge concurred that the Respondent must fulfil its obligations as per employment
contract up until the date of termination of the contract in accordance with the general legal principle
of “pacta sunt servanda”.
19. On account of the above considerations and the documentation on file, the DRC judge decided that
the Respondent is liable to pay to the Claimant the remuneration that was outstanding at the time of
the termination i.e. the amount of EUR 4,815, corresponding to the “bonuses” of March and April
2020 in the amount of EUR 950 each, the full salary of May 2020 in the amount of 1,650 and the
pro rata calculated salary of June 2020, until 23 June 2020, in the amount of EUR 1,265.
20. In addition, taking into account the Claimant’s claim, as well as the DRC’s longstanding jurisprudence
in this respect, the DRC judge decided to award the Claimant interest of 5% p.a. as of the respective
due dates.
21. In continuation, the DRC judge decided that, taking into consideration art. 17 par. 1 of the
Regulations, the Claimant is entitled to receive from the Respondent compensation for breach of
contract in addition to any outstanding remuneration on the basis of the relevant employment
contract.
22. In this context, the DRC judge outlined that, in accordance with said provision, 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.
23. In application of the relevant provision, the DRC judge held that it, first of all, had to clarify whether
the pertinent employment contract contained any clause, by means of which the parties had
beforehand agreed upon a 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, insofar clause 6.4 of the contract cannot
be considered a valid compensation clause, insofar it lacks the necessary component of reciprocity,
i.e. it could only be exercised by the club.
24. Subsequently, and in order to evaluate the compensation to be paid by the Respondent, the DRC
judge took into account the remuneration due to the Claimant in accordance with the employment
contract as well as the time remaining on the same contract, along with the professional situation of
the Claimant after the early termination occurred. In this respect, the DRC judge pointed out that,
despite the contract premature termination on 23 June 2020, if organically continued, the contract
would have run until 31 December 2020. Consequently, taking into account the financial terms of
the contract, the DRC judge concluded that the remaining value of the contract as from its early
termination by the Respondent until the regular expiry of the contract amounts to EUR 10,285
(corresponding the pro rata calculated salary of June 2020, as from 24 June 2020 until 31 June 2020,
in the amount of EUR 385; and the salaries as from July 2020 until December 2020 in the amount of
EUR 9,900).
25. In continuation, the DRC judge remarked that following the early termination of the employment
contract at the basis of the present dispute, the Claimant was not able to find a new employment. As
a result, no further amounts will be deducted from the compensation the Claimant would be entitled
to.
26. In view of all of the above, the DRC judge decided that the Respondent must pay the amount of EUR
10,285 to the Claimant as compensation for breach of contract, which is considered by the DRC judge
to be a reasonable and justified amount as compensation.
27. In addition, taking into account the Claimant’s claim and the longstanding jurisprudence of the DRC
in this respect, the DRC judge decided to award the Claimant interest of 5% p.a. as of 7 July 2020
until the date of effective payment.
28. In conclusion, the DRC decided that the Respondent is liable to pay the total amount of EUR 15,100
to the Claimant, consisting of the amount of EUR 4,815 corresponding to the Claimant’s outstanding
remuneration at the time of the unilateral termination of the contract with just cause by the Claimant
and the amount of EUR 10,285 corresponding to compensation for breach of contract.
29. Furthermore, taking into account the consideration under number II./3. above, the DRC judge referred
to para. 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.
30. In this regard, the DRC judge pointed out 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 players, either nationally or internationally, up until the due amounts are paid and for the maximum duration of
three entire and consecutive registration periods.
31. Therefore, bearing in mind the above, the DRC decided that, in the event that the Respondent does
not pay the amounts 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.
32. Finally, the DRC 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. 24bis par. 3 of the
Regulations.
33. The DRC judge concluded his deliberations in the present matter stipulating that any further claim
lodged by the Claimant is rejected. In conclusion, the Claimant’s claim is partially accepted.
III. DECISION OF THE DRC JUDGE
1. The claim of the Claimant, Pavel Kruk, is accepted.
2. The Respondent, FK Tukums 2000, has to pay to the Claimant EUR 4,815 as outstanding
remuneration, plus interests, calculated as follows:
- 5% interest p.a. on the amount of EUR 950 as from 1 April 2020 until the date of
effective payment;
- 5% interest p.a. on the amount of EUR 950 as from 1 May 2020 until the date of
effective payment;
- 5% interest p.a. on the amount of EUR 1,650 as from 1 June 2020 until the date of
effective payment;
- 5% interest p.a. on the amount of EUR 1,265 as from 1 July 2020 until the date of
effective payment.
3. The Respondent has to pay to the Claimant EUR 10,285 as compensation for breach of contract,
plus 5% interest p.a. as from 7 July 2020 until the date of effective payment.
4. The Claimant is directed to immediately and directly inform the Respondent of the relevant bank
account to which the Respondent must pay the due amount
5. The Respondent shall provide evidence of payment of the due amount in accordance with this
decision to psdfifa@fifa.org, duly translated, if applicable, into one of the official FIFA languages
(English, French, German, Spanish).
6. In the event that the amount due, plus interest as established above is not paid by the Respondent
within 45 days, as from the notification by the Claimant of the relevant bank details to the
Respondent, the following consequences shall arise:
1. The Respondent shall be banned 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. The aforementioned ban mentioned will be
lifted immediately and prior to its complete serving, once the due amount is paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amount as per in this decision is 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 the FIFA Disciplinary Committee.
7. The decision is rendered free of costs.
For the DRC judge:
Emilio García Silvero
Chief Legal & Compliance Officer
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 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 20 of the Procedural Rules).
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