DRC - Preliminary Decisions
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed on 24 March 2023
regarding an employment-related dispute concerning the Player A
BY:
Frans DE WEGER (The Netherlands), Chairperson
CLAIMANT:
Player A, Country A
Represented by
RESPONDENT:
Club B, Country B
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I. Facts of the case
1.
On an unspecified date, the Player A from Country A (hereinafter: the Claimant or the
player) and the club from Country B, Club B (hereinafter: the Respondent or the club)
concluded an employment contract (hereinafter: the contract), valid as from 1 June 2020
until 31 May 2022.
2.
Under the contract, the Respondent undertook to pay to the Claimant inter alia the
following amounts:
a. Season 2020/2021: total of EUR 280,000, payable as follows:
i. 10 monthly instalments of EUR 7,000 each, payable by the first week
of every month from August 2020 to May 2021;
ii. EUR 70,000 to be paid in August 2020;
iii. EUR 70,000 to be paid in December 2020;
iv. EUR 70,000 to be paid in February 2021;
b. Season 2021/2022: total of EUR 308,000, payable as follows:
i. 10 monthly instalments of EUR 7,700 each, payable by the first week
of every month from August 2021 to May 2022;
ii. EUR 77,000 to be paid in August 2021;
iii. EUR 77,000 to be paid in December 2021;
iv. EUR 77,000 to be paid in February 2022;
3.
Under the contract, the player was also entitled to the following (quoted verbatim):
“•
In the 2021-2022 football season, if the total of titles and goals in league matches is
10 or more, the player will receive an additional payment of 50.000 € (fifty thousand euros).
•
If the total of assists and goals In league matches in the 2020-2021 football season
is 10 or more, the player will receive an additional payment of 50.000 € (FIFTY THOUSAND
EUROS).
•
If the total of assists and goals in league matches in the 2021-2022 football season
is 10 or more, the player will receive an additional payment of 50.000 € (FIFTY THOUSAND
EUROS).
•
If the Club B professional football team is in the 1•1 league in the 2020/2021 season
and is qualified to participate in the play-off competitions, a 20,000 € (TWENTY THOUSAND
EURO) success bonus will be paid to the football player.
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•
If the Club B Club professional football team is in the 1st league in the 2021/2022
season and Is qualified to participate in the play-off competitions, a 20,000 € (Twenty
Thousand Euro) success bonus will be paid to the football player.
•
A total of 100,000 € (Hundred Thousand Currency B) will be paid to the player's
manager for the 2020-2021 season, as specified below. 50.000CURRENCY B (Fifty Thousand
Currency B) bank check with a due date of AUGUST 2020, 50,000 (Fifty Thousand Currency
B) bank check with a due date of SEPTEMBER 2020.
•
A total of 100,000 € (Hundred Thousand Currency B) will be paid to the player's
manager for the 2021-2022 season, as specified below. 50.000CURRENCY B (Fifty Thousand
Currency B) bank check with a due date of AUGUST 2021, 50,000 (Fifty Thousand Currency
B) bank check with a due date of SEPTEMBER 2021.
•
If Club B Club will compete in the super league In the 2020-2021 football season, the
football player's guaranteed wage specified in this contract for the 2020-2021 season will
increase by 30% (thirty percent).
•
If Club B Club will compete in the super league in the 2021-2022 football season, the
football player's guaranteed wage specified in this contract for the 2021-2022 season will
increase by 30% (thirty percent).
•
If Club B Club competes in the super league in the 2020-2021 season and is relegated
to a lower league at the end of the season, the football player's 2021-2022 season
guaranteed wage, which will be paid as the wage specified in this contract, will not be
applied and the super league increase will not be applied and will be invalid.
After the signing of this contract, the football player has to submit the documents required
for registration with the Member Association B, within the periods determined by the club,
and obliged to be ready for the health examination at the place and on the specified date
determined by the club.
•
The total minimum wage progress of the player was calculated and the down
payment was paid within the guaranteed money pays. No minimum wage will be paid.
•
If the player plays 20 League matches or more in the first 11 in the 2020-2021
football season, he will receive an additional payment of 50.000 € (FIFTY THOUSAND
EUROS).”
4.
The player explains that the contract was mistranslated from Language B to English and
that as to his bonuses, the correct is the following:
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“Language B version of the contract, the player should receive 50.000 Euros additional
payment if he plays 20 games or more in the first 11 in the official league games. Therefore,
we hereby present the correct translation of the above-mentioned Language B Clause:
“If the player plays 20 league matches or more in the first 11in the 2021/2022 football
season, he will receive an additional payment of 50.000 €(fifty thousand euros).”(English
Version)
The translation should be the same as the 20 game clause of the 2020/2021 football season
since their Language B version shave equal content. Please check page 2 and 3 of the English
version of the contract and page 3 of the Language B version of the contract.
As can be seen from the contract, the 20 games clause 2020/2021 season and 2021/2022
season is the same in the Language B version, however, it is different in the English version.
Obviously, there is a mistake of the translator, and the 20 games clause has been translated
wrong for 2021/2022footballseason. Therefore, we hereby present the contractual basis as
below:
“If the player plays 20 league matches or more in the first 11in the 2021/2022 football
season, he will receive an additional payment of 50.000 €(fifty thousand euros).”(English
Version) (Free Translation)”
5.
On 30 December 2020, the parties signed a protocol due to fact that the club had some
amounts outstanding towards the player (hereinafter: protocol). The protocol establishes
the following payment obligations from the Respondent to the Claimant:
a. EUR 20,000 as balance of the unpaid fee of August 2020;
b. EUR 70,000 as fee due on December 2020;
c. EUR 35,000 as unpaid salaries between August and December 2020;
d. CURRENCY B 100,000 as agent fee;
e. CURRENCY B 110,000 as bonus for playing 11 of 20 matches with regards to a
previous contract between the parties;
f.
6.
CURRENCY B 14,000 as unpaid rent allowances;
Under the protocol, said amounts would be paid as follows. The protocol further
establishes different bank accounts to which each payment is to be made.
a. EUR 50,000 on 31 December 2020;
b. CURRENCY B 100,000 as “agent fee” on 31 December 2020 to the bank account
of the player’s agent;
c. EUR 75,000 plus CURRENCY B 135,000 plus CURRENCY B 50,000 on 28 February
2021.
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7.
The protocol further established the following clauses:
“iii. In addition to the above-mentioned payments, the club will be footballer a monthly rent
of 3000 Currency B for the duration of the contract, starting January 2021. Payments will be
made on the last day of each.
iv. The February 2021 guaranteed fee of 70,000 Euro, which is agreed to be paid in the
employment contract starting 01.06.2020 and ending 31.05.2021, will be paid by the club
on 15 February 2021. If this fee is not paid on 15.02.2021, the club will pay the player interest
at the rate of 1.5% per month. The club agrees in advance that the amount of interest in
question is not exorbitant and will not object to this interest rate.
v. if the amounts, agreed to the prepaid on 28th February 2021 in this protocol (…) are not
paid (…) the club will pay interest to the player at the rate of 1.5% per month until the
effective payment date. The club agrees in advance that the amount of interest in question
is not exorbitant and will not object to this interest rate.”
8.
The Respondent played in the Country B first division during the season 2021/2022.
9.
By correspondence dated 23 May 2022, the Claimant put the Respondent in default of
payment of EUR 296.302,45 plus CURRENCY B 300,000 , without a specific breakdown,
setting a 10 days’ time limit in order to remedy the default.
10. On 21 June 2022, the Claimant filed a claim before FIFA (hereinafter: the First Claim),
whereby the Claimant asked that the Respondent be ordered to pay to him overdue
payables regarding numerous unpaid amounts, detailed as follows. The Claimant explains
that since the Respondent played in the Country B first division, his earnings were raised
by 30% in accordance with the contract. The Claimant also requests interests of 5% p.a.
on each amount as detailed below:
a. “50.000 Currency B (agency fee) - 31st August 2021
b. 50.000 Currency B (agency fee) - 30th September 2021
c. 100.100 Euros (guarantee payment) - 31st December 2021
d. 100.100 Euros (guarantee payment) - 28th February 2022
e. 10.010 Euros (guarantee-monthly payment) - 31st December 2021
f.
10.010 Euros (guarantee-monthly payment) - 31st January 2022
g. 10.010 Euros (guarantee-monthly payment) - 28th February 2022
h. 10.010 Euros (guarantee-monthly payment) - 31st March 2022
i.
10.010 Euros (guarantee-monthly payment) - 30th April 2022
j.
10.010 Euros (guarantee-monthly payment) - 31st May 2022
k. 65.000 Euros (20 games starting eleven bonus) - 31st May 2022
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l.
65.000 Euros (10 goal or assist bonus) - 31st May 2022”.
11. By decision dated 15 September 2022, the Dispute Resolution Chamber partially accepted
the Player’s claim insofar as it was admissible, and ruled as follows (hereinafter: the
Decision). The operative part of the Decision was notified to the parties on 3 October 2022.
“1. The claim of the Claimant, Player A, is partially accepted insofar as it is admissible.
2. The Respondent, Club B, has to pay to the Claimant, the following amount(s):
a. EUR 10,010 as outstanding remuneration plus 5% interest p.a. as from 1 January 2022
until the date of effective payment;
b. EUR 10,010 as outstanding remuneration plus 5% interest p.a. as from 1 February 2022
until the date of effective payment;
c. EUR 88,756 as outstanding remuneration plus 5% interest p.a. as from 1 March 2022
until the date of effective payment;
d. EUR 10,010 as outstanding remuneration plus 5% interest p.a. as from 1 April 2022
until the date of effective payment;
e. EUR 10,010 as outstanding remuneration plus 5% interest p.a. as from 1 May 2022 until
the date of effective payment;
f.
EUR 110,010 as outstanding remuneration plus 5% interest p.a. as from 1 1 June 2022
until the date of effective payment.
3. Any further claims of the Claimant are rejected.
4. Full payment (including all applicable interest) shall be made to the bank account
indicated in the enclosed Bank Account Registration Form.
5. If full payment (including all applicable interest) is not made within 30 days of
notification of this decision, the present matter shall be submitted, upon request, to the FIFA
Disciplinary Committee.
6. This decision is rendered without costs.
7. A fine of USD 30,000 is imposed on the Respondent. Such fine is to be paid by the
Respondent to FIFA within 30 days as from the notification of this decision to the following
bank account with a clear reference to FPSD-6437:
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UBS Zurich
Account number 230-366677.61N (FIFA Players’ Status)
Clearing number 230
IBAN: CH12 0023 0230 3666 7761 N
SWIFT: UBSWCHZH80A”
12. On 4 October 2022, the Claimant put the Respondent in default of payment of EUR
100,000, setting a 10 days’ time limit in order to remedy the default. In such default notice,
the player referred to the EUR 50,000 bonus for (a) playing 20 matches and (b)
participating in 10 or more goals or assist for the season 2020/2021.
13. On 10 November 2023, the grounds of the Decision were communicated to the parties.
II. Proceedings before FIFA
14. On 6 March 2023, the player filed the claim at hand and sought payment of EUR 100,000
as bonuses for having played at least 20 matches and participated in at least 10 goals or
assists in the season 2020/2021. The player further seeks interest over these amounts of
5% p.a. as from 31 May 2021.
15. In this respect, the player explained that the conditions for the payment of the claimed
bonuses were triggered on 14 March 2023, but that he is claiming these amounts counting
as from the end of the relevant season, when they became due. As such, he deems that
his claim is not time-barred.
III. Considerations of the Dispute Resolution Chamber
16. First of all, the Chairperson of the Dispute Resolution Chamber (hereinafter also referred
to as the Chairperson) analysed whether he was competent to deal with the case at hand.
17. In this respect, he took note that the present matter was presented to FIFA on 6 March
2023 and submitted for a preliminary decision on 24 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.
18. 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 if 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
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procedural matters, the FIFA general secretariat would be ordered to continue the
procedure (cf. art. 19 par. 3 of the Procedural Rules).
19. Subsequently, the Chairperson referred to art. 2 par. 1 and art. 24 par. 1 of the Procedural
Rules and observed that in accordance with art. 23 par. 1 in combination with art. 22 par.
1 lit. b) of the Regulations on the Status and Transfer of Players (March 2022 edition), the
DRC would be – in principle – competent to deal with the matter at stake, which concerns
a contractual dispute between a player from Country A and a club from Country B.
20. Having established the above and after a thorough analysis of the documentation
submitted, the Chairperson turned its attention to the arguments of the Claimant, and
noted that the issue of “res judicata” appears, and that he must accordingly assess if the
claim is affected by any preliminary procedural matter.
21. Accordingly, the Chairperson deemed it appropriate to briefly recall that, on the basis of
the principle of res judicata, a decision-making body is not in a position to deal with the
substance of a case in the event that another – competent – deciding body has already
dealt with the same matter by passing a final and binding decision.
22. The Chairperson underlined that the principle of res judicata ensures that whenever a
dispute has been defined and decided upon, it becomes irrevocable, confirmed and
deemed to be just - res judicata pro veritate habetur. In particular, the Chairperson
underlined that this principle applies whenever three elements are concurrently present,
namely:
a. The same persons - eadem personae;
b. The same object - eadem res;
c. The same cause - eadem causa petendi.
23. Having said that, the Chairperson went on to analyse the evidence on file regarding the
Decision. In this respect, the Chairperson observed that indeed a decision had been
passed by a competent deciding body – i.e. the DRC– on 15 September 2023 and was by
now final and binding. Furthermore, the Chairperson underlined that the principle of res
judicata is applicable if cumulatively and necessarily the parties to the disputes and the
object of the matter in dispute are identical. In this respect, the Chairperson recalled that
the criterion of the identity of the parties is given if the parties to the disputes are the
same. Having said this, the Chairman noted that both the Claimant and the Respondent
were the parties in the proceedings leading to the decision previously rendered as well as
in the dispute at stake. As a consequence, considering that the parties to both disputes
are the same, the Chairperson came to the conclusion that the condition of the identity
of parties is fulfilled.
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24. The Chairperson then turned his attention to the criterion of the object of the matter in
dispute. In this respect, he started by acknowledging that the identity of the subject
matter is fulfilled if the reason to claim and the relevant requests of the two claims are
similar. When comparing the First Claim and the one at hand, the Chairperson noted that
both of them derived from the total outstanding amount based on the same contract and
protocol, whereby the Claimant had requested inter alia bonuses amounting to EUR
65,000 each.
25. Consequently, the Chairperson held that both legal actions were based on the
Respondent’s alleged violation of the same employment contract and contained the very
same request for relief. At this point, the Chairperson wished also to point out that while
the protocol envisioned payment of bonuses in Currency B, these we not requested in
the First Claim, for the Claimant sought payments in EUR – which were eventually
awarded in the Decision.
26. For the sake of completeness, the Chairperson wished to remark that the res judicata
effect extends to all the facts existing at the time of the first decision, whether or not they
were known to the parties, stated by them, or considered as proof by the first decisionmaking body. As such, even if was not the case that the bonuses had already been granted
to the Claimant, it would still remain that the claim at hand and the First Claim both were
based on the Respondent’s alleged violation of the same employment contract, especially
considering that by the time the Claimant had lodged the First Claim, the condition
triggering the payment of the bonuses had already happened on 14 March 2021 as the
same admits.
27. That being the case, even if the amounts had not been requested, the Chairperson added
that such error could have been amended during the (first) proceedings, or, within the
stipulated deadline, by a CAS Appeal. In this respect the Chairperson was of the opinion
that, at this stage, the Claimant is precluded to lodge a new claim concerning an identical
object, for this is also against the principles of procedural stability and economy.
28. On this note, the Chairperson emphasized that allowing the Claimant to “cure” its
procedural flaw regarding the First Claim and/or failing to appeal the Decision by filing a
new claim would contravene not only the principle of res judicata but also the legal
certainty of proceedings before FIFA.
29. On account of the above, the Chairperson concluded that the condition of identity of the
object of the matter in dispute is also fulfilled and, consequently, that both legal actions
not only concern identical parties to the dispute but also identical objects and requests
for relief. Therefore, as a competent deciding body has already dealt with the exact same
matter, passing a final and binding decision, the present case is affected by res judicata
and FIFA is not in a position to deal again with the substance of the dispute.
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30. The Chairperson decided that the claim is thus inadmissible.
31. Finally, 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 claim of the Claimant, Player A, is inadmissible.
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).
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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