Arbitration CAS 2014/A/3642 Erik Salkic v. Football Union of Russia (FUR) & Professional Football Club Arsenal, order of 5 August 2014

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1 Tribunal Arbitral du Sport Court of Arbitration for Sport Arbitration CAS 2014/A/3642 Erik Salkic v. Football Union of Russia (FUR) & Professional Football Club Arsenal, Football Request for a stay of the decision Irreparable harm regarding a financial sanction Potential harm Disqualification as irreparable harm Consequences of the failure to develop some of the cumulative requirements to obtain provisional measures 1. The loss of income is not a basis for establishing irreparable harm regarding a financial sanction, as it is reparable at a later stage. 2. Without any concrete evidence to justify damages (or potential damages as the case may be), general allegations of potential harm do not suffice to establish irreparable harm. 3. In the absence of concrete proof that the player requesting the stay of the decision cannot participate in a great number of matches should the decision not be stayed, as such, a four-month disqualification does not constitute an irreparable harm, especially if the player is able to train. 4. If a party fails to develop some of the three necessary requirements to obtain provisional measures under Article R37 para. 5 of the Code, the request for provisional measures must be denied. 1. PARTIES 1. Mr. Erik Salkic (the Appellant ) is a Slovenian football player who formerly played for the Professional Football Club Arsenal. 2. The Football Union of Russia (the FUR or First Respondent ) is the governing body of football in Russia. 3. The Professional Football Club Arsenal (the Second Respondent ) is a professional football club from Tula, Russia, and is a member of the FUR.

2 2 2. FACTUAL BACKGROUND 4. On 15 May 2014, the Players Status Committee of the Football Union of Russia rendered a decision upholding a decision of the Dispute Resolution Chamber of the Football Union of Russia concerning a contractual dispute between the Appellant and the Second Respondent (the Underlying Decision ). As a result of the Underlying Decision, the Appellant was condemned to pay the Second Respondent RUB 1,000,000 as a result of the early termination of his employment contract. Moreover, the Appellant was disqualified for a period of four (4) months. 3. PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT 5. On 25 June 2014, the Appellant filed a statement of appeal with the CAS pursuant to Article R47 of the Code of Sports-related Arbitration (the Code ) against the Respondents with respect to the Underlying Decision. As part of his statement of appeal, the Appellant applied for Provisional Measures in accordance with Article R37 of the Code. 6. By letter dated 27 June 2014, the Respondents were invited to express their position in relation to the Appellant s request for provisional measures in accordance with Article R37 of the Code. 7. By letter dated 2 July 2014, the Appellant informed the CAS Court Office that his statement of appeal should be considered his appeal brief in accordance with Article R51 of the Code. 8. By letter dated 16 July 2014, the Second Respondent informed the CAS Court Office that the CAS may take a decision on Provisional Measures on its own discretion. The First Respondent did not file any response to the Appellant s request for provisional measures. 9. By letter dated 16 July 2014, the CAS Court Office informed the parties that a decision on the Appellant s request would be rendered by the President of the Appeals Arbitration Division in accordance with Article R37 of the Code. 10. The President of the CAS Appeals Arbitration Division will only refer to the Appellant s submissions concerning his request for provisional measures when necessary. 4. JURISDICTION OF THE CAS AND ADMISSIBILITY 11. In accordance with the Swiss Private International Law (Article 186), the CAS has power to decide upon its own jurisdiction. 12. The extent of the jurisdictional analysis at this point is to assess whether on a prima facie basis the CAS can be satisfied that it has jurisdiction to hear the appeal. The final decision on jurisdiction will be made by the Panel.

3 3 13. Article R47 of the CAS Code states that, An appeal against the decision of a federation, association or sports-related body may be filed with the CAS insofar as the statutes or regulations of the said body so provide or as the parties have concluded a specific arbitration agreement and insofar as the Appellant has exhausted the legal remedies available to him prior to the appeal, in accordance with the statutes or regulations of the said sportsrelated body. 14. In the absence of a specific arbitration agreement, in order for the CAS to have jurisdiction to hear an appeal, the statutes or regulations of the sports-related body from whose decision the appeal is being made must expressly recognise the CAS as an arbitral body of appeal. 15. According to Article 53 para. 2 of the applicable Regulations on Dispute Resolution of the Football Union of Russia (the Regulations ): The decision of the Players Status Committee may be appealed against only before the Court of Arbitration for Sport (Tribunal Arbitral du Sport) in Lausanne (Switzerland) within 21 calendar days after receipt of the decision in full. 16. Based on the foregoing, it appears, in principle, that the CAS has jurisdiction to decide the present dispute, without prejudice of any other decision that the Panel could take once constituted. 17. According to Article R49 of the Code, In the absence of a time limit set in the statutes or regulations of the federation, association or sports-related body concerned, or of a previous agreement, the time limit for appeal shall be twenty-one days from the receipt of the decision appealed against. 18. The Underlying Decision is dated 15 May 2014 and was notified to the parties on 5 June The statement of appeal was filed on 25 June 20134, within the 21-day time limit specified in the Regulations, that is to say in a timely manner. 5. LEGAL DISCUSSION 20. The President of the CAS Appeals Arbitration Division is competent to consider an application for provisional measures before the Panel of arbitrators is constituted, pursuant to Article R37 of the Code. In doing so, the relevant criteria for successfully granting an application for a stay is as follows: (1) the party seeking such relief would suffer irreparable harm if the relief were not granted, (2) that party has a likelihood of success on the merits of the appeal, and (3) the interests of the Appellants outweigh those of the other party (award of 15 September 2003, CAS 2003/O/486; order of 25 May 2001, CAS 2001/A/329; order of 15 March 2001, CAS 2001/A/324; order of 12 July 2007, CAS 2007/A/1317; and order of 6 April 2010, CAS 2010/A/2071). Such requirements are also clearly set forth under Article R37 para. 5 of the Code. 21. The three requirements for the grant of provisional measures (i.e. irreparable harm, likelihood of success on the merits of the appeal and balance of interests) are cumulative (order of 12 December 2007, CAS 2007/A/1403; and order of 6 April 2010, CAS 2010/A/2071).

4 4 IRREPARABLE HARM 22. In accordance with CAS jurisprudence, as a general rule, when deciding whether to stay the execution of the decision being appealed the CAS considers whether the measure is useful to protect the applicant from substantial damage that would be difficult to remedy at a later stage ( irreparable harm test): The Appellant must demonstrate that the requested measures are necessary in order to protect his position from damage or risks that would be impossible, or very difficult, to remedy or cancel at a later stage (CAS 2007/A/ , CAS 2008/A/1630). 23. The Appellant challenges the enforcement of the Underlying Decision, namely, the financial sanction (the payment of RUB 1,000,000 (one million) as compensation for the early termination of his employment contract) and the disciplinary sanction (i.e. the disqualification of participation for a period of four (4) months). 24. Concerning the financial sanction, the President of the CAS Appeals Arbitration Division recalls that the loss of income is not a basis for establishing irreparable harm as it is reparable at a later stage (CAS 2014/A/3474, order of 23 June 2014; CAS 2012/A/2802, order of 31 May 2012). 25. Notwithstanding the above and the constant CAS jurisprudence in this respect, the President of the CAS Appeals Arbitration Division notes that in making his arguments, the Appellant states that the application of the financial sanction combined with his unemployment as of February 2014 (i.e. lack of a permanent source of income) may have a material adverse effect over [his] financial standing (emphasis added). The use of the word may leaves the Appellant s alleged damage open-ended. In other words, it is not clear whether the Appellant has sustained irreparable harm, or simply that he might, sometime in the future, sustain irreparable harm. Without any concrete evidence to justify his damages (or potential damages as the case may be), the President of the CAS Appeals Arbitration Division cannot consider that the Appellant would suffer an irreparable harm should the Underlying Decision not be stayed. General allegations of potential harm will not suffice (CAS 2010/A/2236, order of 2 November 2010). 26. The President of the CAS Appeals Arbitration Division also considers that the Appellant fails to establish how he has been prejudiced by the four (4)-month disqualification. Instead, the Appellant only states the obvious, namely that he cannot take part in competitions and more generally, that his inability to play will affect his development. The President of the CAS Appeals Arbitration Division considers that in the absence of concrete proof that the Appellant cannot participate in a great number of matches should the Underlying Decision not be stayed, as such, a four-month disqualification does not constitute an irreparable harm. Moreover, the Appellant is able to train. 27. Based on the foregoing, the Appellant has failed to establish the first criteria necessary when deciding whether provisional measures should be awarded, namely whether the Appellant will suffer irreparable harm. Moreover, and in any event, it is further noted that the Appellant failed to develop the other two necessary requirements to obtain provisional measures under Article R37 para. 5 of the Code, namely the likelihood of success on the merits of the appeal, and that

5 5 his interests outweigh those of the Respondent. Therefore, the President of the Appeals Arbitration Division concludes that the Appellant s request for provisional measures is denied. ORDER The Deputy President of the CAS Appeals Arbitration Division rules that: 1. The application for provisional measures filed by Erik Salkic on 25 June 2014 in the matter CAS 2014/A/3642 Erik Salkic v. Football Union of Russia & Professional Football Club Arsenal is denied. 2. The costs of the present order shall be determined in the final award or in any other final disposition of this arbitration.