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 25 February 2021

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 25 February 2021,

regarding an employment-related dispute concerning the player Aliaksandr PAULAVETS

COMPOSITION:

Geoff Thompson (England), Chairman Stefano Sartori (Italy), member Joseph Antoine Bell (Cameroon), member

CLAIMANT:

ALIAKSANDR PAULAVETS, Belarus

Represented by Mr. Yury Yakhno

RESPONDENT:

DYNAMO BREST, Belarus

I. FACTS

1. The Belarussian player Aliaksandr Paulavets (hereinafter: the player or Claimant) explained that he and the Belarussian club Dynamo Brest (hereinafter: the club or Respondent) are of the same nationality (Belarussian) and that the default notice he sent was ‘guided by the Association Football Federation of Belarus (ABFF) Regulations’.

2. However, the player is of the opinion that FIFA – as of 13 October 2020, the date of the ITC request of the player’s new club Rostov - is competent to deal with the matter at hand, based on art. 22 a) of the FIFA Regulations, as the prerequisites of said article are met as follows:

- The parties are a club and a player;

- There is a dispute concerning contractual stability

- There has been an ITC request (by the player’s new club, the Russian club Rostov (hereinafter: Rostov) and the Football Union of Russia (FUR));

- There is a claim from an interested party in relation to said ITC request, in particular regarding the issue of the ITC, sporting sanctions or compensation for breach of contract (claimed by the player from the club).

- There was a request for the provisional registration of the player.

3. The player also argues that the Belarussian NDRC does not meet the criteria of the FIFA Standard Regulations on National Dispute Resolution Chambers.

4. The club, on the other hand, contests that FIFA is competent to deal with the matter at hand and refers to the contents of art. 22 of the contract, which holds the following clause: ‘In the event of a dispute between the parties on the execution of this contract, they will take all possible measures for the peaceful settlement of such a dispute. In case of impossibility of an amicable settlement, the dispute must be referred to the competent legal authorities of the ABFF in accordance with the Chamber of the ABFF’.

5. In addition, the club states that ‘taking into account the citizenship of the player, the membership of the club in a national association, the dispute will be admissible to the national jurisdictional body’.

6. Moreover, the club argues that the national association validly rejected the ITC, as there was no agreement between the parties as to the termination of the contract.

7. On 10 January 2019, the player and the club signed an employment contract, valid from 11 January 2019 until 10 January 2020 (hereinafter: the contract), as well as an additional agreement (hereinafter: the addendum), extending the original contract until 10 January 2021.

8. Based on art. 4.6 of the Additional Agreement, the player was entitled to a monthly salary of BYN 18,837.36 gross, consisting of an official salary of Belarusian rouble (BYN) 1,633.53 and an incentive payment of BYN 17,203.83.

9. Based on art. 4.7 of the agreement, the player’s monthly net salary amounted to BYN 16,200.13 net.

10. On 21 September 2020, the player put the club in default for the outstanding amount of BYN 64,766.64, proving a 10 days‘ deadline to remedy its default and indicating that in case of non-compliance he would be forced to terminate the contract, however to no avail.

11. On 2 October 2020, after the club promised again to settle its debts the player gave the club another 15 days’ deadline to settle its debts, however to no avail.

12. On 6 October 2020, the club send a letter to the ABFF’s Players’ Status Committee, explicitly confirming that the contract between the club and the player was terminated (by means of the following wording: ‘In the current situation, taking into account the severity of violations committed by the football player of the terms of the current employment contract, LLC FC Dynamo Brest decided to terminate the employment contract №. 6 dated 10.01.2019 with A.V. Paulavets due to violation of performance and labor discipline, which caused damage to the organization in the amount of 350,000 euros.)’.

13. On 8 October 2020, the player unilaterally terminated the contract due to the outstanding salaries.

14. On the same day, 8 October 2020, the club informed the player that he is released for participation in matches of national team until 14 October 2020 and that, since he is on an official journey, as a result of which the contract cannot be terminated.

15. On 15 October 2020, the club requested the player to return to the club’s premises as the contract as not terminated, to which the player replied that the contract was already terminated on 8 October 2020.

16. Allegedly on 6 November 2020, the ABFF passed a decision, on the basis of which it is confirmed that the club had the right to terminate the contract with the player, and that it was entitled to an amount of EUR 125,000.

17. On 29 October 2020, the player lodged a claim against the club, requesting the following amounts:

Outstanding remuneration in the total amount of BYN 85,147, specified as follows:

- The amount of BYN 4,139.72 as outstanding part of the March 2020 salary, as well as 5% interest p.a. as from 10 April 2020 until the date of effective payment;

- The amount of BYN 8,061.87 as outstanding part of the April 2020 salary, as well as 5% interest p.a. as from 10 May 2020 until the date of effective payment;

- The amount of BYN 13,240.54 as outstanding part of the May 2020 salary, as well as 5% interest p.a. as from 10 June 2020 until the date of effective payment;

- The amount of BYN 13,118.25 as outstanding part of the June 2020 salary, as well as 5% interest p.a. as from 10 July 2020 until the date of effective payment;

- The amount of BYN 13,103.13 as outstanding part of the July 2020 salary, as well as 5% interest p.a. as from 10 August 2020 until the date of effective payment;

- The amount of BYN 13,103.13 as outstanding part of the August 2020 salary, as well as 5% interest p.a. as from 10 September 2020 until the date of effective payment;

- The amount of BYN 20,830.13 as outstanding part of the September 2020 salary, as well as 5% interest p.a. as from 10 October 2020 until the date of effective payment.

Compensation for breach of contract in the total amount of BYN 86,583.13, specified as follows:

- The residual value of the contract with the club in the period between October 2020 and January 2021 in the amount of BYN 49,645.61;

- Minus the value of the player’s contract with Rostov in the period between October 2020 and January 2021 in the amount of RUB 352,419.35, equivalent to BYN 11,662.77;

Additional compensation consisting of three monthly salaries of BYN 16,200 net, i.e. the total amount of BYN 48,600.39;

5% interest p.a. as from 9 October 2020 until the date of effective payment.

18. In his claim, the player explains that as from Mach 2020, the club failed to pay him in full his salaries for the months of March, April May June, July and August 2020, resulting in an outstanding debt of BYN 64,766.64 as per 20 September 2020.

19. According to the player, on 24 September 2020, the club explained to him that he breached the article 2.18 of the ABFF Regulations, ‘prohibiting negotiations with the other clubs on employment without approval of the club’, but on the same day confirming that it would settle the debts with the player. Furthermore, according to the player, the club explained that as from March 2020, ‘due to the spread of the COVID-19 virus, the amount of bonus part was reduced to all employees of the organisation without an exception’.

20. The player denies that he was in breach of art. 2.18 of the ABFF Regulations, as said article entitles him to negotiate with other clubs in the last 6 months of the contractual validity.

21. What is more, the player argues that he had a just cause to terminate the contract and that he is entitled to outstanding remuneration and compensation for breach of contract.

22. In its reply to the claim, the club asked that FIFA should declare the claim inadmissible and that the player’s claim has no legal basis.

23. The club explains that it validly (temporary) reduce the bonus payment to all its employees in view of the COVID-19 pandemic.

24. Furthermore, the club argues that the player should have duly explained the reason for the termination of the contract, which then should consequently – based on art. 13 par. 4 of the ABFF Regulations – verify and confirm such reason.

25. The club argues that, since the player is obliged to compensate the club with EUR 125,000, his claims against the club cannot be upheld.

26. In his response to the club’s latest allegations, the player insisted on the competence of FIFA based on art. 22 a) of the Regulations, and refers in this respect to a CAS Award (CAS/A/5575), which confirms said circumstance.

27. What is more, the player states that FIFA granted the provisional registration of the player with Rostov.

28. Additionally, the player explains that he never recognized the competence of the ABFF to decide on the present dispute, as he explicitly denied its competence in the dispute that took was dealt with by the ABFF Players’ Status and Transfer Committee.

29. According to the player, the decision passed by the ABFF on 6 November 2020 was not final and binding (as the club pointed out in its reply), as he appealed against said decision. However, according to the player, the appeal ‘was left without consideration’ by the ABFF, according to the player without valid reason.

30. Finally, the player confirms that he received the outstanding remuneration as initially claimed by him, as the club made a payment to him on 17 November 2020 and drops this part of his claim. However, the player insists that he is entitled to BYN 86,583.18 as compensation for breach of contract.

31. On 9 October 2020, the player signed a new contract with Rostov, valid between 9 October and 31 December 2011, based on which the player was entitled to a monthly salary of Russian rouble (RUB) 115,000 net.

32. On 13 October 2020, Rostov requested the player’s ITC, which request was however rejected by the ABFF on 20 October 2020, as the previous contract of the player was allegedly not terminated.

33. On 22 October 2020, Rostov submitted a request for provisional registration of the player.

34. On 4 November 2020, FIFA rejected the cancellation of the transfer, as the reason provided by the ABFF was not a valid reason based on art. 8.2.4 lit. b and 8.2.7 of Annexe 3 of the FIFA Regulations.

II. CONSIDERATIONS OF THE DRC

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 October 2020. Taking into account the wording of art. 21 of the 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 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 a) of the Regulations on the Status and Transfer of Players (edition October 2020; hereinafter: the Regulations), the Dispute Resolution Chamber shall, in principle, adjudicate on disputes between clubs and players in relation to the maintenance of contractual stability when there has been an ITC request and a claim from an interested party in relation to said ITC request.

3. That being said, the Chamber noted that in the present matter, the player is of the opinion that all requirements for the application of art 22 a) of the Regulations are met, whereas the club argues that the claim should be considered inadmissible.

4. Turning to the question whether or not the matter at hand falls within the scope of art. 22 a) of the Regulations, the Chamber wished to point out that as per its well-established jurisprudence and opposed to the CAS Award quoted by the player, its jurisdiction is limited to cases, in which there exists a shared nationality between the player and the former club, and in which the former club of the player which lodges a contractual claim against the player and his new club.

5. In situations like the matter at hand, in which it was the player which lodged against his former club, and where no consequences can arise for the new club of the player, the Chamber concluded that no relation between the employment-related dispute and the ITC request exists. What is more, in the matter at hand, it was the player, which terminated the contractual relationship with his former club.

6. Consequently, the Chamber concluded that it did not have jurisdiction to hear this dispute on the basis of article 22 lit. a) of the Regulations.

7. Subsequently, members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and concluded that, pursuant to art. 24 par. 1 and art. 22 lit. b) from the Regulations, the Chamber is the competent decision-making body to hear employment-related disputes between a club and a player of an international dimension.

8. In view of the foregoing, the Chamber has found it useful to stress that in principle, and without prejudice to the right of any player, coach, association or club to seek redress before a civil court for employment-related disputes, it is within its jurisdiction to deal with any employment-related dispute of an international dimension between a club and a player, except in the case where a independent arbitral tribunal was established at the national level.

9. Subsequently, the members of the Chamber referred to the preliminary provisions of the Regulations, and in particular article 1 thereof, according to which certain principles stipulated in the Regulations are also binding on the national level and each association is required to draw up its own regulations interior. Within the framework of their autonomy, associations are free to adapt their internal regulations to the needs and particularities of the country concerned.

10. Consequently, FIFA's jurisdiction is limited to disputes and transfers with an international dimension.

11. In addition, in the context of labour disputes, the Chamber wished to point that as a general rule, the international dimension is represented by the fact that the player concerned is not a national of the country of the association to which the club concerned is affiliated.

12. However, when both parties have the same nationality, the dispute must be considered as national or internal, which has the consequence that the rules and regulations of the association concerned apply to the dispute and the proceedings decisions provided for by the said national rules and regulations must decide the case. Any other interpretation would lead to a situation in which the relevant FIFA decision-making body, dealing with such an internal matter, would infringe the internal competence of FIFA members.

13. In light of the foregoing, and in particular considering the nationality of the parties (Belarussian) to the present dispute, the Chamber has established that the present case is devoid of international. As a result the Chamber deemed itself not competent to decide on the present dispute.

14. In view of all the foregoing, the Chamber decided that the claim of the player is to be considered inadmissible.

III. DECISION OF THE DISPUTE RESOLUTION CHAMBER

1. The claim of the Claimant, Aliaksandr Paulavets, 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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