Labour Disputes
Texto da decisão
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
Elv is Chetty (Seychelles), member
Tom is lav Kas alo (Croatia), member
CLAIMANT:
Konstantin ENGEL, Germany/Kazakhstan
Represented by Pechorniy Oleg Evgenovich
RESPONDENT:
FC ASTANA, Kazakhstan
REF 20-00036
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.
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REF 20-00036
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
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REF 20-00036
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.
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REF 20-00036
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
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REF 20-00036
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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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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