DRC - Preliminary Decisions
Texto da decisão
REF FPSD-8366
Decision of the
Dispute Resolution Chamber
passed on 7 March 2023
regarding an employment-related dispute concerning the player Andrew James Russell
BY:
Frans de Weger (The Netherlands), Chairperson
CLAIMANT:
Andrew James Russell, China PR
RESPONDENT:
Jiangxi Beidamen FC, China PR
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I.
Facts of the case
1.
The player Andrew James Russell (hereinafter: the Claimant) is a footballer, “Hong Kong citizen,
holder of the passport KJ0498351”.
2.
The club, Jiangxi Beidamen FC (hereinafter: the Respondent) is a football club based in China PR
and affiliated to the Chinese Football Association (CFA).
3.
On 1 January 2021, the Claimant and the Respondent concluded an employment contract
(hereinafter: the Contract) valid as of the date of signature until 31 December 2022.
4.
According to the contract, the Respondent undertook to pay the Claimant a total annual salary of
Chinese Yuan Renminbi (CNY) 1,250,000.
5.
The contract states that the Claimant holds the “Hongkong China” nationality.
6.
On 31 March 2022, the parties concluded a termination agreement, according to which the
Respondent undertook to pay the Claimant CNY 545,400 until 15 June 2022. In case of noncompliance, the parties agreed upon payment of interest of 10% p.a.
7.
The termination agreement refers to the Claimant’s passport no. “KJ0498351”, without referring
to a nationality.
II. Proceedings before FIFA
8.
On 25 November 2022, the Claimant filed the claim at hand before FIFA.
9.
According to the Claimant, the Respondent failed to pay to remit outstanding remuneration in the
amount of CNY 534,329, which he claimed along with interest of 5% p.a.
10. On 2 December 2022, the FIFA general secretariat informed the Claimant that the Football
Tribunal did not appear to have jurisdiction to decide over the matter
11. Subsequently, the Claimant insisted on a decision, arguing that the Claimant was a “Hong Kong”
citizen and not Chinese. In this framework, he held that the Hong Kong has its own football
association and national team.
12. Furthermore, the Claimant maintained that the player “holds a Hong Kong passport” and was
registered as a “foreigner” in China, thus, not even the Chinese FA does see him as a Chinese
player.
13. Moreover, the Claimant held that the contract and the termination agreement referred to FIFA
and its regulations and therefore, the club acknowledged the player as a foreigner.
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14. Subsequently, the FIFA general secretariat informed the parties that the case was going to be
referred to the Chairperson of the Dispute Resolution Chamber for an expedited decision.
III. Considerations of the Dispute Resolution Chamber
15. First of all, the Chairperson of the Dispute Resolution Chamber (hereinafter also referred to as
Chairperson) analysed whether he was competent to deal with the case at hand.
16. In this respect, he took note that the present matter was presented to FIFA on 25 November 2022
and submitted for decision on 7 March 2023. Taking into account the wording of art. 34 of the
October 2022 edition of the Procedural Rules Governing the Football Tribunal (hereinafter: the
Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the matter
at hand.
17. At the same time, the Chairperson confirmed that, in accordance with art. 19 par. 1 and 2 of the
Procedural Rules, he shall decide, in an expedited manner, whether the case at stake is affected
by any preliminary procedural matter (i.e. if the Football Tribunal obviously does not have
jurisdiction or if the claim is time-barred). Likewise, the Chairperson highlighted that, in case the
claim is not affected by any preliminary procedural matters, the FIFA general secretariat would be
ordered to continue the procedure (cf. art. 19 par. 3 of the Procedural Rules).
18. Subsequently, the Chairperson referred to art. 2 par. 1 of the Procedural Rules and observed that
in accordance with art. 23 par. 1 in combination with art. 22 lit. b) of the Regulations on the Status
and Transfer of Players (October 2022 edition) (hereinafter: the Regulations), the Dispute
Resolution Chamber is competent to deal with disputes between clubs and players with an
international dimension.
19. The Chairperson emphasized, in other words, that this means that FIFA is only competent to hear
an employment-related dispute between a player and a club when the parties have different
nationalities, without which the international element of the dispute is not fulfilled.
20. As a consequence, in case the player has the same nationality from the country where the club
that holds his registration is based, the relevant dispute has to be considered a purely internal
(national) matter to be decided by the competent authorities in the respective country. The
Chairperson recalled that the jurisprudence of the Football Tribunal has adopted the position
outlined above in similar matters.
21. Having established the foregoing, the Chairperson recalled the basic principle of burden of proof,
as stipulated in art. 13 par. 5 of the Procedural Rules, according to which a party claiming a right
on the basis of an alleged fact shall carry the respective burden of proof.
22. In this respect, the Chairperson noted that the dispute at hand involves two Parties that share
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23. the same nationality, i.e. the Chinese nationality, on the basis that the Claimant is a citizen of Hong
Kong, whereas the Respondent is affiliated to the CFA.
24. In this regard, the Chairperson highlighted that an independent country, in the matter at hand the
People’s Republic of China, may have more than one member association of FIFA incorporated
within its territory.
25. The jurisprudence of the DRC considers the nationality as the element to be analysed when
determining whether a contractual dispute enjoys international dimension.
26. In view of the aforementioned, the Chairperson highlighted that it appears the Claimant was
registered under the same nationality as the Respondent. The Chairperson took into account that
the contract refers to a “Hong Kong China”. Furthermore, the Chairperson pointed out that the
passport to which the termination agreement referred to (KJ0498351) was not submitted by the
Claimant.
27. In this regard, the Chairperson observed that the claim lacks international dimension as required
by art. 22 lit b) of the Regulations. Hence, the Chairperson found that the Football Tribunal is not
competent to hear the dispute.
28. Lastly, the Chairperson referred to art. 25 par. 1 of the Procedural Rules, according to which
“Procedures are free of charge where at least one of the parties is a player, coach, football agent,
or match agent”. Accordingly, the Chairperson decided that no procedural costs were to be
imposed on the parties.
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IV. Decision of the Dispute Resolution Chamber
1. The Football Tribunal does not have jurisdiction to hear the claim of the Claimant, Andrew James
Russell.
2. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 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 17 of the Procedural Rules).
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