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 10 December 2020

Decision of the

Dispute Resolution Chamber

passed on 10 December 2020,

regarding an employment-related dispute concerning the player Aleksey Kurzenev

COMPOSITION:

Geoff Thompson (England), Chairman

Angela Collins (Australia), member

Abu Nayeem Shohag (Bangladesh), member

CLAIMANT:

Aleksey Kurzenev, Russia

Represented by SILA International Lawyers

RESPONDENT:

FC Dnepr Mahilyow, Belarus

I. FACTS OF THE CASE

1. On 28 August 2018, the Russian player, Roberto Lago Soto (hereinafter: Claimant or player) and the Belarusian club, “Dnepr Football Club” (hereinafter: Dnepr) concluded an employment contract (hereinafter: contract) valid until 3 December 2018.

2. The Parties agreed upon a remuneration as follows:

3. On 5 November 2018 and 30 November 2018, Dnepr ordered to reduce the Claimant’s salary “due to unsatisfactory sport results of the Club”.

4. On 31 October 2019, the Dnepr ceased to exist “due to reorganization in form of acquisition, which led to formation of Dnyapro Football Club”.

5. On 5 December 2019, the Claimant sent a default notice to Dnyapro Football Club (hereinafter: Dnyapro), requesting BYN 5,479.81 as outstanding remuneration, granting the Respondent 10 days to remedy its default, to no avail.

6. On 10 March 2020, the Claimant lodged a claim against Dnyapro in front of FIFA, requesting outstanding remuneration in the amount of Belarusian Ruble (BYN) 5,479.81, plus 5% interest p.a. as from 1 December 2018 on the amount of BYN 2,883.81 and 5% interest p.a. as from 4 December 2018 on the amount of BYN 2,596.

7. The Claimant maintained that “lower performance of the team is not a valid ground to reduce the Player’s salary” and, consequently, he was “deprived of part of his salary in the amount of BYN 2,883.81 for October 2018, as well as BYN 2596 for November 2018”, i.e. BYN 5,479.81.

8. According to the Claimant, his monthly salary amounted to BYN 3,712.49. The Claimant maintained

that “starting from November 2018, the Club kept failing to pay the Player’s salary in full”.

9. On 20 March 2020, the Belarus FA confirmed the following:

10. On 23 March 2020, upon a clarification request from FIFA, the Belarus FA stated the following:

11. On 28 September 2020, the Claimant amended his claim arguing that FC Dnepr Mahylow

(hereinafter: Respondent or Dnepr Mahylow) should be considered as sporting successor of FC

Dnyapro, and therefore liable to pay for the Claimant’s outstanding remuneration initially claimed.

12. In support of his allegation that FC Dnepr Mahylow is indeed the sporting successor of FC Dnyapro,

the player submitted documents showing that FC Dnepr Mahylow is based in the same city, plays in

the same stadium, uses the same colors, and that out of the 25 players in the squad, 14 used to play

for FC Dnyapro before joining FC Dnepr Mahylow.

13. Furthermore, the Claimant argues that FC Dnepr Mahylow itself refers to its history as of 1960 on its

homepage and that the club’s president, Mr Kalachev, was previously the president of FC Dnyapro

and initially was the person who signed the Claimant’s contract.

14. On account of the above, the Claimant requested payment of BYN 5,479.81 as outstanding remuneration.

15. In its reply to the amended claim, the Respondent rejected the claim and denied that it is the sporting successor of FC Dnyapro and therefore, never had a contractual relationship with the player.

16. In this regard, it brought forward that the two clubs in question have “different legal addresses” as well as different “founders”.

17. Moreover, the Respondent held it was renamed on 31 December 2019 from “Mogilev city specialized children’s and youth school of the Olympic reserve no. 7“ to FC Dnepr Mahylow.

II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER

1. First of all, the Dispute Resolution Chamber (hereinafter also referred as DRC or Chamber) analysed whether it was competent to deal with the case at hand. In this respect, the Chamber took note that the present matter was submitted to FIFA on 10 March 2020. Consequently, the DRC concluded that the November 2019 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the Procedural Rules).

2. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition June 2020) the Dispute Resolution Chamber is, in principle, competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension.

3. Furthermore, 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, and considering that the present claim was lodged on 10 March 2020, the March 2020 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

4. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. The members of the Chamber started by acknowledging the facts of the case, as well as the documentation contained in the file. However, the Chamber 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. At this stage, the Chamber decided to concentrate in a first instance on the argumentation put forward by the Respondent according to which it does not have standing to be sued. In this context, the Respondent states that Dnepr Mahylow which currently exists is different from the club with which the Claimant signed the contract and, therefore no contractual relationship existed.

6. In this regard, the Chamber noted that it remained undisputed by the parties and was confirmed by the Belarus FA, that Dynapro was the sporting and legal successor of Dnepr.

7. Having established the above, the DRC considered that the underlying issue in the present dispute left for its appreciation was to determine whether the Respondent can be considered as a sporting and/or legal successor of PAE and consequently liable to pay PAE’s debts towards the player.

8. With this in mind, the DRC started by acknowledging the position of the player, who stressed that the Respondent is the sporting and legal successor of Dnyapro, by highlighting the similarities between the two clubs as well as explaining the circumstances of how Dnepr Mahylow was founded.

9. Having said this, the members of the Chamber took note of the Respondent’s position which stressed that those clubs have “different legal addresses” as well as different “founders”. Furthermore, the DRC noted that the Belarus FA concluded that Dnepr Mahylow is not the sporting successor of Dnyapro.

10. With the above-mentioned considerations in mind and in relation to the new club’s position, the DRC referred to the CAS Award 2013/A/3425 which mutatis mutandis can be applied to the present matter. Indeed, in said Award, CAS, while confirming a previous decision of FIFA, established that a club is a sporting entity identifiable by itself, which is formed by a combined set of elements that constitute its image.

11. In particular, the DRC agreed to fully adopt the reasoning of the Sole Arbitrator in the aforementioned Award that reads as follows:

“The Sole Arbitrator highlights that the decisions that had dealt with the question of the succession of a sporting club in front of the CAS (CAS 2007/A/1355; TAS 2011/A/2614; TAS 2011/A/2646; TAS 2012/A/2778) and in front of FIFA’s decision-making bodies (…), have established that, on the one side, a club is a sporting entity identifiable by itself that, as a general rule, transcends the legal entities which operate it. Thus, the obligations acquired by any of the entities in charge of its administration in relation with its activity must be respected; and on the other side, that the identity of a club is constituted by elements such as its name, colours, fans, history, sporting achievements, shield, trophies, stadium, roster of players, historic figures, etc. that allow it to distinguish from all the other clubs. Hence, the prevalence of the continuity and permanence in time of the sporting institution in front of the entity that manages it has been recognised, even when dealing with the change of management companies completely different from themselves” (original text in Spanish).

12. Having said this, the members of the Chamber focused their attention on the following facts:

a. Both, Dnyapro and Dnepr Mahylow played in the same city:

b. Both clubs held their local matches in the same stadium;

c. Both clubs use similar colors;

d. Most of the players of the Respondent used to play for Dnyapro before it ceased to exist;

e. Mr Kalachev used to the representative of Dnepr signing the contract at the basis of this dispute and now he is the president of Dnepr-Mahylow and signed its reply to the current claim.

13. On account of all the above, the DRC reached the following conclusions:

a. There are sufficient elements to establish that Dnepr Mahylow has been the same club as Dyapro throughout its history, despite the alleged change of owners, board of directors, etc.;

b. Moreover, by using a similar name, colors, stadium and, in particular, the history, it is evident that the new club had the intention to maintain the identity and image of Dnyapro in order to be considered the same club.

14. In view of the foregoing conclusions, the DRC unanimously decided that the Respondent is the sporting successor of Dnyapro, which was the successor of Dnepr and it is therefore liable to pay for its debts.

15. Having said that, the DRC started to analyse the merits of the case at hand and acknowledged that, on 28 August 2018, the Claimant and the Dnepr signed an employment contract pursuant to which the Respondent undertook to pay to the Claimant a monthly salary of BYN 3,712.49.

16. The Chamber further acknowledged that, according to the Claimant, the Dnepr had deducted certain parts of his salary. Therefore, he lodged the present claim and requested reimbursement of the total amount of BYN 5,479.81.

17. Moreover, the DRC noted that the Respondent did not dispute such debt and therefore, the Chamber wished to emphasize that the Respondent failed to discharge its burden of proof in relation to said payments.

18. On account of the above considerations, in particular consideration II. 14., and the documentation on file, the DRC decided that, in accordance with the general legal principle of “pacta sunt servanda”, the Respondent is liable to pay BYN 5,479.81 corresponding to the deducted salary payments related to the player’s salaries of October and November 2018.

19. In addition, and taking into consideration the player’s claim and the jurisprudence of the Chamber, the DRC decided to award on the aforementioned amounts interest of 5% p.a. as from the respective due dates until the date of effective payment.

20. Furthermore, taking into account the consideration under number II./3. above, the DRC 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.

21. In this regard, the DRC 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.

22. 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.

23. Finally, the DRC 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.

III. DECISION OF THE DISPUTE RESOLUTION CHAMBER

1. The claim of the Claimant, Aleksey Kurzenev, is accepted.

2. The Respondent, FC Dnepr Mahilyow, has to pay to the Claimant, the following amount:

- Belarusian Ruble (BYN) 2,883.81 as outstanding remuneration plus 5% interest p.a. as from 1 December 2018 until the date of effective payment.

- BYN 2,596 as outstanding remuneration plus 5% interest p.a. as from 4 December 2018 until the date of effective payment.

3. 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.

4. 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).

5. 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.

For the Dispute Resolution Chamber:

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).

CONTACT INFORMATION:

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