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 4 June 2020

Decision of the

Dispute Resolution Chamber

passed via videoconference, on 4 June 2020,

regarding an employment-related dispute concerning the player Konstantin ENGEL

COMPOSITION:

Clifford J. Hendel (USA), Deputy Chairman Elvis Chetty (Seychelles), member Tomislav Kasalo (Croatia), member

CLAIMANT:

Konstantin ENGEL, Germany/Kazakhstan

Represented by Pechorniy Oleg Evgenovich

RESPONDENT:

FC ASTANA, Kazakhstan

Contractual basis

1. On 1 August 2016, the player, Konstantin Engel (hereinafter: the player or the Claimant), holder of the German and Kazakh nationalities, and the Kazakh club, FC Astana (hereinafter: the club or the Respondent) concluded an employment contract (hereinafter: the contract) valid from 1 August 2016 until 31 December 2018.

2. Clauses 3.1 and 3.2 of the contract established that the Claimant was entitled to receive from the Respondent a monthly salary amounting to Kazakhstani Tenge (KZT) 11,907,000 by no later than the first ten days of the next month.

3. According to the information available in the Transfer Matching System (hereinafter: TMS), it is indicated that the player signed under his Kazakh nationality.

4. In or around January 2017, the player and the club signed a “labor contract termination agreement”, according to which, inter alia, they “[agreed] that any claims under, or in connection with, the labor contract based on whatever legal grounds cannot be asserted by any party, including a case when some provisions within this agreement are acknowledged invalid.”

Chain of events

5. By correspondence dated 18 February 2020, the Kazakhstan Football Federation (hereinafter: the KFF) informed FIFA that the player “at the time of registration in the professional Football League of Kazakhstan was a citizen of the Republic of Kazakhstan which is confirmed by the passport dated 23 November 2010 (valid until 22 November 2020 issued by the Ministry of justice of the Republic of Kazakhstan”.

Requests of the parties

6. On 29 December 2019, the Claimant requested from the Respondent the payment of KZT 345,303,000 corresponding to outstanding monthly salaries from September 2016 until December 2018, i.e. as from the 2nd month of the contract until its expiry date.

7. The Respondent rejected the claim of the Claimant in its entirety.

Position of the parties

8. In its claim, the Claimant argued that during the validity of the contract he correctly performed his duties in accordance with the contract, but the Respondent did not pay his monthly salaries in breach of clause 2.1 of the contract.

9. As such, the player requested the award of the entire value of the contract.

10. The Claimant insisted that the present claim has an international dimension and argued that at the moment of the signature of the contract he was German and based on German law he could not hold dual citizenship.

11. Moreover, the Claimant argued that the legislation of Kazakhstan also does not allow dual citizenship. The Claimant added that at the moment of the signature of the contract he was a German citizen and for this reason he lodged the present claim in front of the FIFA Dispute Resolution Chamber.

12. The Claimant enclosed a copy of his German Citizenship Certificate dated 19 December 1991 and a copy of the national law in support of his allegations.

13. What is more, the Claimant enclosed a reference letter issued by the Embassy of the Republic of Kazakhstan (Bonn City) dated 13 February 1995 in which it is stated that the player and his family “are not citizens of republic of Kazakhstan”.

14. In its reply, the Respondent underlined that the player had the Kazakh citizenship since at least 2013.

15. Then, the Respondent declared that in January 2017 the parties had signed a termination agreement (cf. above) by means of which the parties stipulated the contract signed in August 2016 was null and voice and never entered into force due to “reasons beyond control of the parties”. Therefore, the parties did not have any pending obligations towards each other.

16. The Respondent requested that Kazakh labour law shall be applied to the matter at hand, in view of the fact that the player had been representing the Kazakh national A team since 2013 and that the player signed with the club on 2016 as a Kazakh citizen.

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) 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 on 29 December 2019. 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 members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and emphasised 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 (June 2020 edition), the Dispute Resolution Chamber is competent to deal with matters which concern employment-related disputes with an international dimension between players and clubs.

3. In continuation, the Chamber analysed which edition of the Regulations of the Status and Transfer of Players should be applicable to the present matter. In this respect, the Chamber confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition March 2020), and considering that the claim was lodged on 29 December 2019, the October 2019 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand.

4. However, before entering the substance of the matter, the Chamber noted that the club raised an issue regarding the law to be applied to the present dispute. In particular, the DRC acknowledged that the club pointed out that the player was a Kazakh citizen and that he has been representing the Kazakhstan at international level since 2013. The Chamber further noted that the player insisted on FIFA’s competence to decide on the matter, due to the fact that he also had the German nationality.

5. Having considered the argumentation of the player and of the club, the DRC first deemed it appropriate to highlight the exact wording of art. 22 lit. b) of the Regulations, which stipulates the following:

“Without prejudice to the right of any player or club to seek redress before a civil court for employment-related disputes, FIFA is competent to hear:

(…)

b) employment-related disputes between a club and a player of an international dimension; the aforementioned parties may, however, explicitly opt in writing for such disputes to be decided by an independent arbitration tribunal that has been established at national level within the framework of the association and/or a collective bargaining agreement. Any such arbitration clause must be included either directly in the contract or in a collective bargaining agreement applicable on the parties. The independent national arbitration tribunal must guarantee fair proceedings and respect the principle of equal representation of players and clubs.” (emphasis added).

6. Considering the wording of the previous article, the DRC emphasised that the scope of its competence is given by the Regulations and only disputes of an international dimension can be heard by the Chamber.

7. In other words, the DRC underlined that it may only hear employment-related disputes between parties that do not share a common nationality. What is more, based on its embedded jurisprudence in the application of art. 22 lit. b) of the Regulations, the Chamber emphasised that in cases where a player holds the nationality of the club against which he lodged a claim in front of the DRC as well as another nationality, the nationality taken into account shall be the one under which the player has been registered under by the relevant Member Association upon registration of the contract at the heart of the dispute.

8. In view of the above, the DRC determined that the key issue at hand concerned the nationality of the player under which the KFF registered the contract.

9. In this respect, the Chamber acknowledged that on 18 February 2020, the KFF confirmed that the Claimant had been registered as a Kazakh national.

10. Based on the foregoing, and bearing in mind the content of art. 22 lit. b) of the Regulations, the Chamber concluded that there is no international dimension to the present matter and that in this case the Dispute Resolution Chamber is not competent to hear an employment related dispute between a Kazakh player and a Kazakh club.

In view of the above, the Chamber declared the claim of the player inadmissible.

III.

1. The claim of the Claimant, Konstantin Engel, is inadmissible.

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).

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