3946 ZAO FC Lokomotiv V

Tribunal Arbitral du Sport Court of Arbitration for Sport Arbitration CAS 2015/A/3946 ZAO FC Lokomotiv v. Leonid Stanislavovich Kuchuk & Football Union of Russia (FUR), award of 28 January 2016 Panel: Mr Bernhard Welten (Switzerland), President; Mr Dirk-Reiner Martens (Germany); Mr Efraim Barak (Israel) Football Compensation for early termination of coach’s employment contract without just cause Liquidated damages clauses According to well-established CAS jurisprudence an explicit agreement of the parties to a contract on a certain sum to be paid in case of breach of contract does not need to be reduced by any of the amounts that the party entitled to receive such compensation has earned after the termination of an employment contract. Specifically, in case an employment contract contains a typical clause for liquidated damages – i.e. clearly stating how the compensation shall be calculated – the amount stated in the respective clause has to be paid as liquidated damages in the sense that no reduction will be made even if the party entitled to the damages had started a new employment on a date prior to the end of its original employment contract. I. THE PARTIES 1. ZAO FC Lokomotiv (the “Club” or “Appellant”) is a football club with its registered office in Moscow, Russia. It is affiliated to Football Union of Russia and plays in the Russian Premier League, the highest professional league in Russian Football and the country’s primary football competition. 2. Mr. Leonid Stanislavovich Kuchuk (the “Coach” or “First Respondent”) is a Belorussian citizen and a professional football coach, born on 27 August 1959. He is the former head coach of the Appellant’s first team and currently coaches the Russian Football Club FC Kuban Krasnodar. 3. Football Union of Russia (the “Second Respondent” or “FUR“) is Russian football’s governing body. The FUR itself is affiliated to Fédération Internationale de Football Association (“FIFA”), world football’s governing body. CAS 2015/A/3946 2 ZAO FC Lokomotiv v. Leonid Stanislavovich Kuchuk & FUR, award of 28 January 2016 II. FACTUAL BACKGROUND A. Facts 4. The elements set out below are a summary of the main relevant facts, as established by the Panel on the basis of the submissions of the Parties, the exhibits produced and the declarations of the witnesses. Additional facts and allegations found in the Parties’ written submissions, pleadings and evidence may be set out, where relevant, in connection with the legal discussion that follows. While the Panel has considered all the facts, allegations, legal arguments and evidence submitted by the Parties in the present proceedings, it refers in its Award only to the submissions and evidence it considers necessary to explain its reasoning. 5. On 18 June 2013, the Appellant signed an employment contract (the “Employment Contract”) with the First Respondent for a fixed period from 18 June 2013 until 30 June 2015. In accordance with Clause 1.1. of the Employment Contract, the Coach was hired by the Club to work as Head Coach of the Appellant’s first football team. 6. In the Coach’s first season 2013/14, the first team of the Appellant performed well and finished the Russian Premier League in third place. In the second year, from 3 August to 13 September 2014, the team played 9 official matches, of which it only won 2 games. The team dropped out of UEFA’s Europa League at the play-off stage and was, after the 7th round of the Russian championship, ranked in the 9th place. 7. On 26 June and 11 July 2014, the Appellant’s first team travelled twice to Walchsee, Austria for the two pre-season training camps. The start in the Coach’s second season 2014/15 began with two wins, two draws and two losses, including the UEFA Europe League play-off against Apollon Limassol FC on 28 August 2014. 8. On 31 August 2014, the Appellant’s first team lost against FC Zenit in the Russian Premier League, based on which the President of the Appellant requested the Coach to produce a written report describing the reasons of the team’s failures and a performance improvement plan. This report was handed over by the Coach on 8 September 2014. 9. On 13 September 2014, the Appellant’s team drew at home against FC Mordovia Saransk in the Russian Premier League. 10. On 15 September 2014 at 10:30 a.m., the President of the Appellant cancelled the first team’s training scheduled by the Coach and met with the Coach before addressing the players of the first team. 11. On 16 September 2014, the President of the Appellant arranged for one of the Club’s longest- serving coaches, Mr. Igor Cherevchenko, to lead the training of the first team at 11:00 am, the time when the President of the Appellant had scheduled a meeting with the Coach. In this meeting, the lawyers of the Club and the Coach discussed the Appellant’s proposal for termination of the Employment Contract by mutual consent. 12. Still on 16 September 2014, at around 16:00, the Coach arrived at the training ground in order CAS 2015/A/3946 3 ZAO FC Lokomotiv v. Leonid Stanislavovich Kuchuk & FUR, award of 28 January 2016 to direct the afternoon’s training of the first team. However, he was denied access to the training ground by a security guard. Thereafter, the Coach submitted two default letters to the Appellant and requested to receive written instructions regarding his future work for the Club (as he was now replaced as head coach by Mr. Cherevchenko). 13. On 17 September 2014, the President of the Appellant met with the members of the First Respondent’s coaching staff and agreed with them to mutually terminate their employment agreements. Further, on the Appellant’s website an interview of the President was published, stating inter alia: “… the contract with Kuchuk can be cancelled only by agreement of the parties and the lawyers are working on it now”. The Coach deduced from all these facts that he has been suspended from work as he was not allowed to enter the Appellant’s premises and moreover, based on a second article on the Appellant’s official website where it was stated that “Mr. Kuchuk, the Head Coach of FC Lokomotiv, is suspended from work”. 14. On 18 September 2014, another announcement on the Appellant’s website provided as follows: “… in this regard the Board of Directors took the decision to agree with the suggestion of the President of the Club Olga Yurievna Smorodskaya that it is advisable to terminate the employment contract with Head Coach L.S. Kuchuk. Senior coach of the team Igor Cherevchenko has been appointed the Acting Head Coach”. Later that day, the Appellant announced the mutual termination of the Employment Contracts with all assistant coaches. 15. In the following days several letters went back and forth between the Appellant and the First Respondent. 16. On 19 September 2014, the Appellant wrote to the Coach that “… Therefore, the duties of the Head Coach have now been temporarily transferred to the coach I.G. Cherevchenko. For the avoidance of doubt we would like to emphasize that I.G. Cherevchenko is not a new Head Coach of the team; he temporarily performs the duties of the Head Coach …”. 17. On 22 September 2014, the Appellant’s President and the Coach met together with their lawyers to negotiate a mutual termination agreement. The offer made by the Appellant was rejected by the Coach on 23 September 2014. 18. On 26 September 2014, the First Respondent submitted a claim against the Appellant to the FUR Dispute Resolution Chamber (“DRC”). 19. On 2 October 2014, the Appellant wrote to the First Respondent that “… This is to inform you that the Club regards your actions as termination of the employment contract on your initiative and your unwillingness to continue training of the team. Therefore, the Club makes the decision to employ a new Head Coach and considers the employment contract terminated by you unilaterally”. 20. On 4 October 2014, the Appellant published on its official website the appointment of Miodrag Bozovic as the acting head coach of the Appellant’s first team. 21. On 8 October 2014, the Appellant took the decision to dismiss the Coach for a single gross violation of the Employment Contract, namely his failure to attend training and to perform the CAS 2015/A/3946 4 ZAO FC Lokomotiv v. Leonid Stanislavovich Kuchuk & FUR, award of 28 January 2016 duties required of him under the agreement on 4 October 2014. The Appellant wrote to the First Respondent: “… we do hereby notify you that the Employment Contract unnumbered dated June 18, 2013 between you and the Club has been terminated and you have been dismissed on October 08, 2014”. B. Proceedings before the FUR Dispute Resolution Chamber (“DRC”) and Players’ Status Committee (“PSC”) 22. On 26 September 2014, the Coach filed a claim in front of the DRC requesting the following: “(i) acknowledge absence of material breach of the Employment Contract dated June 18, 2013 on the part of L.S. Kuchuk; (ii) acknowledge material breach of the Employment Contract dated June 18, 2013 on the part of ZAO FC Lokomotiv; (iii) acknowledge L.S. Kuchuk’s right to receive compensation in connection with material breach of the Employment Contract to be calculated based on the monthly remuneration payable to him under the Employment Contract multiplied by the number of months remaining until June 30, 2016; (iv) acknowledge the fact of the Employment Contract having been unilaterally dissolved by ZAO FC Lokomotiv without valid reasons”.

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