Labour Disputes
Texto da decisão
REF. FPSD-12195
Decision of the
Dispute Resolution Chamber
passed on 25 January 2024
regarding an employment-related dispute concerning
the player Yauhen Yablonski
COMPOSITION:
Clifford J. Hendel (USA & France), Deputy Chairperson
Angela Collins (Australia), member
Mario Flores Chemor (Mexico), member
CLAIMANT:
Yauhen Yablonski, Belarus
Represented by Mr André Oliveira
RESPONDENT:
Aris Limassol, Cyprus
Represented by Lysandrou, Florou LLC
pg. 2
REF. FPSD-12195
I. Facts of the case
1.
On 1 January 2022, the Belarussian player Yauhen Yablonski (hereinafter: Claimant or
player) and Cypriot club Aris Limassol (hereinafter: club or Respondent) concluded an
employment contract (hereinafter: the Contract) valid as from the date of signature until
31 May 2024.
2.
According to the Contract, the Respondent undertook to pay the Claimant the following
remuneration:
-
Between 1 January 2022 and 31 May 2022, net monthly salary of EUR 17,000;
Between 1 June 2022 and 31 May 2023, net monthly salary of EUR 14,166;
Between 1 June 2023 and 31 May 2024, net monthly salary of EUR 14,166.
3.
Furthermore, according to the Contract, the Claimant is entitled to a total additional
allowance of EUR 2,700 net per month.
4.
On the same date, the parties signed a “standard employment contract / annexe”
(hereinafter: the Annexe) in accordance with which further terms of employment were
adduced to the Contract.
5.
According to art. 13 of the Annexe, the following was established:
“Any employment dispute between the club and the player shall fall under the exclusive
jurisdiction of the National Dispute Resolution Chamber if the CFA and shall be resolved
according to the applicable regulations of the CFA.”
6.
On 8 July 2023, the Respondent unilaterally terminated the Contract.
7.
On 10 July 2023, the Claimant sent the Respondent a letter, outlining that he “disagree[s]
with the termination and reserve[s] the right to file a claim”.
8.
On 25 September 2023, the Claimant sent a correspondence to the Respondent outlining
that the Contract was terminated without just cause by the latter and that it should pay
compensation to the Claimant, out of good faith, before having to resort to lodge a claim
before FIFA. The Claimant, to no avail, requested the Respondent to submit an offer of
settlement by no later than 29 September 2023.
9.
On 4 January 2024, the Claimant signed a new employment contract with the Greek club
ASG Asteras Tripolis PAE (hereinafter: the New Club) valid as from the date of signature until
30 June 2025 (hereinafter: the New Contract).
10. In accordance with the New Contract, the Claimant is entitled to a net monthly salary of
EUR 10,750.
pg. 3
REF. FPSD-12195
II. Proceedings before FIFA
11. On 13 October 2023, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a. Position of the Claimant
12. In his claim, the player argued that the Respondent terminated the Contract unilaterally
and without just cause, failing to provide any explanation for the dismissal.
13. The Claimant specified that he contacted the Respondent to understand why the Contract
had been terminated, as well as trying, in good faith to negotiate a settlement agreement,
to no avail.
14. As such, the Claimant requested compensation in the amount of EUR 189,010.26 net as
well as 5% annual interest based on the Respondent’s unlawful breach of contract.
b. Position of the Respondent
15. In its reply, the Respondent Challenged the competence of FIFA, arguing in detail that the
National Dispute Resolution Chamber under the auspices of the Cypriot Football
Association (CFA) is exclusively competent to handle the present dispute.
16. The Respondent specified that the Cypriot NDRC is fairly composed and meets the
requirements of equal representation of Circular No. 1010.
17. The Respondent listed in detail each of the requirements under the respective Circular
Letter and addressed how the Cypriot NDRC meets these respective requirements with
accompanying evidence:
-
Parity when constituting the arbitral tribunal
Independent and impartial tribunal
Principle of a fair hearing
Right to contentious proceedings
Right to equal treatment
Access to justice (cf. financial barriers / cost of proceedings)
18. As to the merits, the Respondent outlined that the claim of the Respondent is excessive, as
the Claimant failed to sign a new contract for several months after the termination, and
that, as such, mitigation should apply by reference.
19. The Respondent, therefore, requested for the claim to either be rejected or the amount of
compensation to be mitigated.
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REF. FPSD-12195
c. Comments of the Claimant
20. In his replica, the Claimant insisted on the jurisdiction of FIFA, arguing that the Cypriot
NDRC does not comply with the requirements of a properly constituted Tribunal.
21. Particularly, the Claimant argued that the players’ association is not equally represented,
nor involved in the composition process, thus falling short of the standard set by Circular
1010. The Claimant submitted a letter by the Pancypriot Footballers’ Association attesting
to this.
22. As to the merits, the Claimant argued that the fact that he failed to sign an employment
Contract should not be held against him.
23. In conclusion, the Claimant reiterated his request for relief.
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REF. FPSD-12195
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
24. 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 presented to FIFA on 13 October 2023 and submitted
for decision on 25 January 2024. Taking into account the wording of art. 34 of the March
2023 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.
25. Subsequently, the members of the Chamber 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 May 2023 edition), the Dispute Resolution
Chamber is – in principle – competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a Belarussian player
and a Cypriot club.
26. Furthermore, the Chamber took note of the fact that the Respondent contested the
competence of the Football Tribunal to adjudicate the present dispute in favour of the
National Dispute Resolution Chamber of Cyprus) (hereinafter: the NDRC of Cyprus), alleging
that the latter is competent to deal with any dispute deriving from the relevant
employment contract, in accordance with art. 13 thereunder. Equally, the Chamber noted
that the Claimant insisted on the jurisdiction of FIFA.
27. Taking into account all the above, the Chamber emphasised that in accordance with art. 22
par. 1 lit. b) of the Regulations on the Status and Transfer of Players, FIFA is, in principle,
competent to hear an employment-related dispute between a club and a player of an
international dimension. Nevertheless, the parties may explicitly opt in writing for such
dispute 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. Equally, the Chamber referred to the principles
contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations,
which came into force on 1 January 2008.
28. Thus, the Chamber pointed out that it should first analyse whether the employment
contract at the basis of the present dispute contained a clear and exclusive jurisdiction
clause in favour of the NDRC of Cyprus.
pg. 6
REF. FPSD-12195
29. In this respect, the Chamber recalled the wording of art. 13 of the Contract, according to
which the parties agreed that “any employment dispute between the club and the player shall
fall under the exclusive jurisdiction of the National Dispute Resolution Chamber of the CFA and
shall be resolved according to the applicable regulations of the CFA.”
30. Having analysed the wording of said provision, the Chamber firstly held that it is sufficiently
clear and exclusive in favour of the competence of the Cypriot NDRC.
31. Having established the foregoing, the Chamber turned its attention to the further prerequisites for establishing the competence of a NDRC. The Chamber namely referred to
principle of equal representation of players and clubs and underlined that this principle is
one of the very fundamental elements to be fulfilled, in order for a national dispute
resolution chamber to be recognised as such. Indeed, this prerequisite is mentioned in the
Regulations on the Status and Transfer of Players, in the FIFA Circular no. 1010 as well as
in art. 3 par. 1 of the NDRC Regulations, which illustrates the aforementioned principle as
follows: “The NDRC shall be composed of the following members, who shall serve a fouryear renewable mandate: a) a chairman and a deputy chairman chosen by consensus by
the player and club representatives (…); b) between three and ten player representatives
who are elected or appointed either on proposal of the players’ associations affiliated to
FIFPro, or, where no such associations exist, on the basis of a selection process agreed by
FIFA and FIFPro; c) between three and ten club representatives (…).” In this respect, the FIFA
Circular no. 1010 states the following: “The parties must have equal influence over the
appointment of arbitrators. This means for example that every party shall have the right to
appoint an arbitrator and the two appointed arbitrators appoint the chairman of the arbitration
tribunal (…). Where arbitrators are to be selected from a predetermined list, every interest group
that is represented must be able to exercise equal influence over the compilation of the
arbitrator list”.
32. In respect of the above, the Chamber went on to examine the documentation on file as
well as the parties’ submissions.
33. In this regard, and to significant effect, the Chamber noted that the Claimant had
corroborated by virtue of a letter from the Cypriot representative of FIFPro (the Pancyprian
Players’ Association) that the NDRC failed to meet the principle of “equal representation”.
More specifically, such players’ union was not adequately involved during the composition
of the NDRC, as well as being excluded from the drafting of the national regulatory
framework and procedural rules of the NDRC in question.
34. The Chamber considered such line of argument, despite the detailed argumentation of the
Respondent, convincing, to the extent of critically undermining the compliance of said body
with the requirements set out in Circular No. 1010.
35. The Chamber wished to also point out – for completeness’ sake – that such assessment
was in line with further recent decisions in said matter, which made reference to the
pg. 7
REF. FPSD-12195
identical framework of the NDRC and the very same letter submitted by the Pancyprian
Players’ Association.
36. Therefore, the Chamber was of the opinion that the burden of proving the NDRC’s
compliance with the necessary principle of equal representation of players and clubs was
not met by the Respondent.
37. Consequently, it rejected the objection to the competence of FIFA to deal with the present
dispute, and concluded that the Football Tribunal is competent to consider the matter as
to the substance, according to art. 22 par. 1 lit. b) of the Regulations on the Status and
Transfer of Players.
38. Subsequently, 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 (May 2023 edition), and
considering that the present claim was lodged on 13 October 2023, the May 2023 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
39. The Chamber 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. Likewise, the Chamber stressed
the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties, including without limitation the evidence generated by or
within the Transfer Matching System (TMS).
c. Merits of the dispute
40. Its competence and the applicable regulations having been established, the Chamber
entered into the merits of the dispute. In this respect, the Chamber started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on 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.
i. Main legal discussion and considerations
41. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the basis of the dispute at hand concerned the
lawfulness of the contractual termination committed by the Respondent.
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REF. FPSD-12195
42. In this context, the Chamber acknowledged that its task was to determine whether the
Respondent had a just cause to terminate the Contract, and on the basis of the conclusion
thereof, what monetary consequences lie at stake.
43. Prior to entering the analysis of the matter on its merits, the Chamber recalled the parties’
submissions.
44. The Claimant, on one hand, asserted that the Respondent terminated the Contract without
just cause, arguing that the latter failed to provide a justification despite several requests
to do so by the former.
45. On the other hand, the Chamber noted that the Respondent failed to contest the claim as
to its merits, stating (other than the challenge as to FIFA’s jurisdiction) that the claim should
be rejected altogether because the Claimant, by failing to sign a new contract, did not
mitigate his damages.
46. At this stage, the Chamber wished to recall its longstanding jurisprudence, pursuant to
which a unilateral termination of a contract prior to its contractual term may only be an
ultima ratio measure resulting from either a substantial enough or frequent enough breach
of contract.
47. In the case at hand, the Chamber took note of the fact that there was not only no evidence
to suggest that the Claimant had been in breach of contract at all, but rather the
Respondent – both following the correspondences sent by the Claimant and in the
submission to the present proceedings – failed to provide a justification as to the
termination of the Contract.
48. Consequently, the Chamber concluded that the threshold of ultima ratio had not been met
in the case at hand, and that, as a result, the Respondent had terminated the Contract with
the Claimant without a just cause.
ii. Consequences
49. Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent.
50. The Chamber observed that the Claimant confirmed not being owed any outstanding
remuneration as of the date of the contractual termination. Consequently, the Chamber
immediately went on to consider the compensation payable as a result of the unlawful
breach of contract by the Respondent.
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REF. FPSD-12195
51. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the player by the club in the case at stake. In doing so, the
Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the
amount of compensation shall be calculated, in particular and unless otherwise provided
for in the contract at the basis of the dispute, with due consideration for the law of the
country concerned, the specificity of sport and further objective criteria, including in
particular, the remuneration and other benefits due to the player under the existing
contract and/or the new contract, the time remaining on the existing contract up to a
maximum of five years, and depending on whether the contractual breach falls within the
protected period.
52. In application of the relevant provision, the Chamber held that it first of all had to clarify as
to whether the pertinent employment contract contained a provision by means of which
the parties had beforehand agreed upon an amount of compensation payable by the
contractual parties in the event of breach of contract. In this regard, the Chamber
established that no such compensation clause was included in the employment contract at
the basis of the matter at stake.
53. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the club to the player had to be assessed in application of the
other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that
said provision provides for a non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable.
54. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded
with the calculation of the monies payable to the player under the terms of the contract
from the date of its unilateral termination until its end date. Consequently, the Chamber
concluded that the amount of EUR 185,526 net (i.e. the residual value of the Contract, or
11 x EUR 14,166 net plus 11 x EUR 2,700 net between July 2023 and May 2024) serves as
the basis for the determination of the amount of compensation for breach of contract.
55. In continuation, the Chamber verified as to whether the player had signed an employment
contract with another club during the relevant period of time, by means of which he would
have been enabled to reduce his loss of income. According to the constant practice of the
DRC as well as art. 17 par. 1 lit. ii) of the Regulations, such remuneration under a new
employment contract shall be taken into account in the calculation of the amount of
compensation for breach of contract in connection with the player’s general obligation to
mitigate his damages.
56. Indeed, the player found employment with the New Club. In accordance with the pertinent
employment contract, the player was entitled to EUR 10,750 net per month. Therefore, the
Chamber concluded that the player mitigated his damages in the total amount of
EUR 53,750 net, that is, EUR 10,750 net times five, during the overlapping period between
the Contract and the New Contract of January 2024 until May 2024.
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REF. FPSD-12195
57. Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to
which a player is entitled to an amount corresponding to three monthly salaries as
additional compensation should the termination of the employment contract at stake be
due to overdue payables. In the case at hand, the Chamber confirmed that the contract
was terminated by the club – not by the player – thus not triggering the relevant provision
and not entitling the player to additional compensation.
58. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the club must pay the amount
of EUR 131,776 net to the player (i.e. EUR 185,526 net minus EUR 53,750 net), which was to
be considered a reasonable and justified amount of compensation for breach of contract
in the present matter.
59. Lastly, taking into consideration the player’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the player interest on said
compensation at the rate of 5% p.a. as of 10 July 2023 until the date of effective payment.
iii. Compliance with monetary decisions
60. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24 par.
1 and 2 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.
61. In this regard, the DRC highlighted 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 or internationally, up until the due amounts are paid. The overall
maximum duration of the registration ban shall be of up to three entire and consecutive
registration periods.
62. Therefore, bearing in mind the above, the DRC decided that the Respondent must pay the
full amount due (including all applicable interest) to the Claimant within 45 days of
notification of the decision, failing which, at the request of the Claimant, a ban from
registering any new players, either nationally or internationally, for the maximum duration
of three entire and consecutive registration periods shall become immediately effective on
the Respondent in accordance with art. 24 par. 2, 4, and 7 of the Regulations.
63. The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Account Registration Form, which is attached
to the present decision.
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REF. FPSD-12195
64. 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. 24 par. 8 of
the Regulations.
d. Costs
65. The Chamber 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 Chamber decided that no procedural costs were to be
imposed on the parties.
66. Likewise, and for the sake of completeness, the Chamber recalled the contents of art. 25
par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
67. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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REF. FPSD-12195
IV. Decision of the Dispute Resolution Chamber
1.
The Football Tribunal has jurisdiction to hear the claim of the Claimant, Yauhen Yablonski.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, Aris Limassol, must pay to the Claimant EUR 131,776 net as
compensation for breach of contract without just cause plus 5% interest p.a. as from
10 July 2023 until the date of effective payment.
4.
Any further claims of the Claimant are rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
6.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, if full payment
(including all applicable interest) is not made within 45 days of notification of this decision,
the following consequences shall apply:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration of the ban shall
be of up to three entire and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary Committee
in the event that full payment (including all applicable interest) is still not made by the
end of the three entire and consecutive registration periods.
7.
The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-12195
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 Governing the Football
Tribunal).
CONTACT INFORMATION
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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