Dispute Resolution Chamber
Texto da decisão
REF 21-00205
Decision of the
Dispute Resolution Chamber
passed on 17 June 2021,
regarding an employment-related dispute concerning the player Zoran Marusic
COMPOSITION:
Omar Ongaro (Italy), Deputy Chairman
Philippe Diallo (France), member
Roy Vermeer (Netherlands), member
CLAIMANT :
Zoran Marusic, Serbia
Represented by Mr Juan de Dios Crespo Perez & Alfonso León
RESPONDENT:
FC Dnepr Mogilev, Belarus
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I. FACTS OF THE CASE
1.
On 11 February 2019, the Serbian player, Zoran Marusic (hereinafter: Claimant or player) and the
Belarusian club, Football Club Pramen concluded an employment contract (hereinafter: contract) valid
as from the date of signature until 3 December 2019 including a monthly salary of Belarusian Rubles
(BYN) 900 plus bonuses.
2.
On 11 December 2019, Dniapro-MCZ Mogilev acknowledged a debt of Belarusian Rubles (BYN)
13,660.73 (approx. EUR 5,800) towards the player
3.
On 10 June 2020, the player filed a claim against Dniapro-MCZ Mogilev and was subsequently
informed by FIFA that said club is no longer affiliated to the Belarusian FA.
4.
On 11 September 2020 and completed on 5 February 2021, the player lodged a claim against FC
Dnepr Mogilev for outstanding remuneration of EUR 5,086 (allegedly corresponding to BNY
13,660.73) plus 5% interest p.a. as of 10 January 2020.
5.
Furthermore, the player requested to impose sanctions in connection with art. 12bis RSTP and
requested payment of legal costs in the amount of CHF 3,000.
6.
In its claim, the player held that FC Dnepr Mogilev is the sporting and legal successor of Dniapro-MCZ
Mogilev and therefore liable to pay its debt.
7.
In this context, the Claimant argued that FC Dnepr Mogilev uses the same colors, stadium, a similar
club crest, the previous history/titles.
8.
In its reply to the claim, FC Dnepr Mogilev denied being the legal and sporting successor of DniaproMCZ Mogilev and/or Pramen. Therefore it rejected the claim.
9.
The Respondent argued that Pramen was renamed and became Dniapro-MCZ Mogilev, which up to
date still exists and is in bankruptcy proceedings in Belarus.
10. According to the Respondent it already existed as “Mogilev City Specialized Children's and Youth
School of the Olympic Reserve No. 7" when Dniapro-MCZ Mogilev was still active in the championship
2019.
11. Moreover, it argued that it has different founders than Dniapro-MCZ Mogilev.
12. On 20 March 2020, the Belarus FA confirmed to FIFA the following:
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13. On 23 March 2020, upon a clarification request from FIFA, the Belarus FA stated the following:
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 11 September 2020 and. Consequently, the DRC
concluded that the August 2020 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 February 2021) the Dispute Resolution Chamber is
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 11
September 2020, the June 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.
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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 FC Dnepr Mogilev 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 Dniapro-MCZ Mogilev was the sporting and legal successor of Dnepr and the
Football Club Pramen.
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 Dniapro-MCZ Mogilev and consequently liable to pay Dniapro-MCZ
Mogilev’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 Dniapro-MCZ Mogilev, by highlighting the
similarities between the two clubs as well as explaining the circumstances of how FC Dnepr Mogilev
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 FC Dnepr Mogilev is not the sporting successor of
Dniapro-MCZ Mogilev.
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).
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12. Having said this, the members of the Chamber focused their attention on the following facts:
a. Both, Dniapro-MCZ Mogilev and FC Dnepr Mogilev 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 Dniapro-MCZ Mogilev before it ceased to
exist;
13. On account of all the above, the DRC reached the following conclusions:
a. There are sufficient elements to establish that FC Dnepr Mogilev has been the same club as
Dniapro-MCZ Mogilev 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 Dniapro-MCZ Mogilev 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 Dniapro-MCZ Mogilev, 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 11 February 2019, the Claimant and the Dniapro-MCZ Mogilev signed an employment contract
pursuant to which the Respondent undertook to pay to the Claimant a monthly salary of BYN 900.
16. The Chamber further acknowledged that, Dniapro-MCZ Mogilev on 11 December 2019,
acknowledged a debt towards the player in the amount of BYN 13,660.73.
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 payments
in this regard.
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 13,660.73.
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 10 January
2020 until the date of effective payment.
20. Moreover, the Dispute Resolution Chamber decided to reject the Claimant’s claim pertaining to legal
costs in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s respective
longstanding jurisprudence in this regard.
21. 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.
22. 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
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or internationally, up until the due amounts are paid and for the maximum duration of three entire
and consecutive registration periods.
23. 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.
24. 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.
25. The DRC concluded its deliberations by rejecting any further claim lodged by the parties.
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III. DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant, Zoran Marusic, is partially accepted.
2.
The Respondent, FC Dnepr Mogilev, has to pay to the Claimant, the following amount:
- BYN Belarusian Rubles (BYN) 13,660.73 as outstanding remuneration plus 5% interest
p.a. as from 10 January 2020 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
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.
5.
The Respondent shall provide evidence of payment of the due amount in accordance with this
decision to [email protected], duly translated, if applicable, into one of the official FIFA languages
(English, French, German, Spanish).
6.
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.
7. This decision is rendered without costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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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:
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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