DRC - Preliminary Decisions
Texto da decisão
REF FPSD-10364
Decision of the
Dispute Resolution Chamber
passed on 27 June 2023
regarding an employment-related dispute concerning the player Adnan
Aganovic
BY:
Frans de Weger (Netherlands), Chairperson
CLAIMANT:
Adnan Aganovic, Croatia
Represented by Lucian Novacescu
RESPONDENT:
FC Brasov, Romania
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I. Facts of the case
1.
On 4 September 2013, the Croatian player Adnan Aganovic (hereinafter: the Claimant)
and the Romanian club S.C. Fotbal Club Brasov S.A (hereinafter: the Old Club)
concluded an employment contract (hereinafter: the Contract) to be valid as from the
same date until 30 June 2015.
2.
Pursuant to the Contract, the Old Club undertook to pay to the Claimant the following
sums:
“a) For the period 04.09.2013 – 30.06.2014, THE PLAYER will receive the amount of EURO
44.000 (forty four thousand Euro) net, payable 4000 euro monthly in equal parts.
b) For the period 01.07.2014 – 30.06.2015 THE PLAYER will receive the amount of EURO
48.000 (forty eight thousand Euro net), payable monthly in equal parts.
(...)
2.1 In addition to the amount stipulated at point 2 THE PLAYER will benefit during each
season the bonuses according with Internal regulation of FC Brasov.
2.2 F.C. Brasov will pay to the player during the contract period, 200 euro / month to rent
a house.”
3.
On 8 December 2014, the Claimant filed a claim against the Old Club before the
National Chamber for Dispute Resolution of the Romanian Football Federation
(hereinafter: the NDRC of the RFF), requesting the payment by the Old Club of the
following sums:
•
“monthly remuneration of 4.000 EUR net per month, owed for the months of June
2014, July 2014, August 2014, September 2014, October 2014 and November
2014, in the total net amount of 24.000 EUR;
•
rent allowance for the period between June 2014 and November 2014, in the total
amount of 1.200 EUR net, as per Article 2.2 of the Contract.”
4.
On 14 January 2015, the NDRC of the RFF passed a decision and accepted the
Claimant’s request in its entirety.
5.
On 4 March 2015, an insolvency proceeding regarding the Old Club was opened by
the “Brasov Tribunal for Administrative and Fiscal Matters”.
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6.
In the context of the insolvency proceeding, on 31 March 2015, the Claimant
submitted a request for the registration of his credit of EUR 25,200 towards the
Respondent in the relevant creditors table.
7.
Accordingly, on 28 October 2015, the Claimant has been registered as “employee
creditor” of the Old Club in the “Definitive Consolidation Table” for a total of RON
189.510,72, which at the time approximately corresponded to EUR 37,800.
8.
Following the above, on 20 December 2019, the Municipality of Brasov passed a
Decision with respect to the acquisition of the brand - “Fotbal Club Brasov” - at an
auction organized within the insolvency proceedings.
9.
On 27 May 2021, the Brasov Municipality adhered to the existing sports association
“Asociația Clubul Sportiv Scotch Club”.
10. On 15 June 2021, the association “Asociația Clubul Sportiv Scotch Club” subsequently
changed its name into “Asociatia Clubul Sportiv Fotbal Club Brasov – Steagul Renaste”
(hereinafter: the Respondent).
11. On 25 June 2021, the Brasov Municipality Council approved an agreement between
the Respondent and the municipal football club “Club Sportiv Municipal Corona
Brasov”, which had just been promoted to the Romanian Second League for the
sporting season 2021/2022.
12. In particular, the Respondent was granted (i) the right to participate in the Romanian
second league instead of the municipal football club “Club Sportiv Municipal Corona
Brasov“ (the latter also being under the control of the Brasov Municipality), as well as
(ii) any and all assets related to the participation in the Romanian Second League.
13. Subsequently, the Respondent was registered as participant to the Romanian Second
League for the 2021/2022 sporting season.
14. On 20 July 2021, the Brasov Municipality granted to the Respondent the right of free
usage of the Old Club’s brand, for the sporting season 2021/2022. The year after the
same right was extended up to the end of the season 2024/2025.
15. On 22 December 2022, the Claimant sent a notice to the Respondent, addressing the
latter as sporting successor of the Old Club and asking to pay the net amount of EUR
EUR 54,600 as outstanding remuneration under the Contract.
16. In this context, the Claimant clarified to the Respondent that the claimed sum had
been partly registered as outstanding credit in the Definitive Consolidation Table of
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creditors of the Old Club (i.e., EUR 37,800) while the residual amount of EUR 16,800
had become due after the relevant insolvency proceeding.
II. Proceedings before FIFA
17. On 26 May 2023, the Claimant filed the claim at hand before FIFA against the
Respondent. A brief summary of the claim is detailed in continuation.
18. The Claimant states that the Respondent is the sporting successor of the Old Club,
hence he shall be held liable for the financial obligations carried by the latter even
after the relevant insolvency proceeding.
19. In this respect, the Claimant argued having exhausted, to no avail, all the internal
procedural means to recover his credit, hence he was left with no alternatives but to
address FIFA.
20. Based on the foregoing, the Claimant makes the following request for relief:
a. “The present Claim filed by Adnan Aganovic against Asociația Club Sportiv Fotbal Club
Brașov – Steagul Renaște shall be upheld.
b. Asociația Club Sportiv Fotbal Club Brașov – Steagul Renaște shall be ordered to pay to
the Claimant, within 30 days as from the date of notification of the decision, overdue
payables in the net amount of EUR 54,600 EUR (..)
c. A default interest of 5 % per year shall be applied to the overdue amount (..) until the
effective date of payment.
d. A disciplinary sanction consisting of a fine in an amount to be established by the
Dispute Resolution Chamber of the Football Tribunal shall be imposed upon Asociația
Club Spoortiv Fotbal Club Brașov – Steagul Renaște.
e. Asociația Club Sportiv Fotbal Club Brașov – Steagul Renaște shall bear all the costs of
this arbitration.”
21. On 20 June 2023, the FIFA general secretariat informed the Claimant that his claim
had raised a preliminary procedural issue and that the relevant case would have been
submitted directly to the Chairperson of the Dispute Resolution Chamber for an
expedited decision.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
First of all, the Chairperson of the Dispute Resolution Chamber (hereinafter: the
Chairperson) analysed whether he was competent to deal with the case at hand.
2.
In this respect, he took note that the present matter was presented to FIFA on 26 May
2023 and submitted for a preliminary decision on 23 June 2023. 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.
3.
The Chairperson confirmed that, in accordance with art. 19 par. 1 and 2 of the
Procedural Rules, he is competent to 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 obviously 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).
4.
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 (March 2023 edition) the Dispute
Resolution Chamber would – in principle – be competent to deal with the matter at
stake, which concerns an employment-related dispute with an international
dimension between a Croatian player and a Romanian club.
b. Admissibility
5.
Notwithstanding the foregoing, the Chairperson noted that an issue regarding the
admissibility of the present claim was identified by FIFA ex officio.
6.
In particular, the Chairperson noted that apparently an identical dispute between the
parties had already been decided upon by the Brasov Tribunal for Administrative and
Fiscal Matters on 28 October 2015 and, as such, FIFA would no longer be allowed to
deal with the claim at stake by virtue of the application of the legal principle of res
judicata. The Chairperson noted equally that a decision by the NDRC of the RFF had
also been passed in connection with obligations arising from the Contract.
7.
In view of the above, the Chairperson held that he had to establish whether the claim
was affected by a preliminary procedural matter in light of the principle res judicata.
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Accordingly, the Chairperson deemed it appropriate to briefly recall that, on the basis
of the principle of res judicata, that 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.
8.
Having said that, the Chairperson went on to analyse the evidence on file regarding
the previous decision allegedly passed in an identical matter. In this respect, the
Chairperson observed that indeed a decision had been passed by a competent
deciding body – i.e. the Brasov Tribunal for Administrative and Fiscal Matters
Resolution – on 28 October 2015 and that such decision has become final and binding.
This, without mention of the decision rendered by the NRDC of the RFF.
9.
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, he 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 Chairperson noted that the Claimant and Old Club were the parties in the
proceedings leading to the decision previously rendered. In what concerns the case
at hand, the Chaiperson is conscious that the Respondent and the Old Club have been
framed by the Claimant as the same entity in that the Respondent is the sporting
successor of the Old Club and thus allegedly responsible for the debts of the Old Club.
In other words, the Claimant deems that the Respondent and the Old Club are one in
the same and both responsible for complying with the obligations deriving from the
Contract. As a consequence, the Chairperson concluded that the condition of the
identity of parties is fulfilled since the Claimant deems that the Old Club and the
Respondent are the same.
10. 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 object
is fulfilled if the reason to claim and the relevant requests of the two claims are similar.
When comparing the claim previously lodged in front of the Brasov Tribunal for
Administrative and Fiscal Matters and the one at hand, the Chairperson noted that
both derived from the Contract stipulated by the parties on 4 September 2013 and
contained a request for the payment of obligations arising thereto amounting to EUR
37,800. 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. Thus, the Chairperson concluded that the condition of
identity of the object of the matter in dispute is also fulfilled.
11. For the sake of completeness, the Chairperson referred to the jurisprudence of the
Swiss Federal Tribunal, according to which ”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 [decision-making body].”
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12. On account of the above, the Chairperson concluded 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.
13. Furthermore, for what concerns the residual amount of EUR 16,800 demanded by the
Claimant in his requests for relief, which, as per clarification of the latter, became due
only after the relevant credit’s registration in the insolvency proceeding, the
Chairperson noted that the present claim was lodged in front of FIFA on 26 May 2023,
whereas the said sums had become collectible in 2015 and the Claimant was evidently
aware of it.
14. While the Chairperson was not fully persuaded that these concepts were not included
in the decision rendered in the context of the insolvency proceedings filed in Romania,
he recalled the wording of art. 23 par. 3 of the March 2023 edition of the Regulations,
which clearly stipulates that “The Football Tribunal shall not hear any case subject to
these regulations if more than two years have elapsed since the event giving rise to the
dispute. Application of this time limit shall be examined ex officio in each individual case”.
15. Bearing in mind the foregoing, even if not affected by res judicata – quod non –, the
Chairperson concluded that the present (residual) claim appears to be affected by the
statute of limitations of 2 years, as stipulated in the Regulations and therefore results
inadmissible.
16. To this extent and for the sake of completeness, the Chairperson also referred to the
principle of preclusion, which as a general principle of law, denotes that the parties
must (procedurally) act in good faith and file the entirety of their requests in the
appropriate time, under penalty of being prohibited from doing so at a later stage.
Equally, the Chairperson noted that the fact that the Claimant had started multiple
proceedings at domestic level to later present this claim before the Football Tribunal
also contained elements of the practice known as forum shopping. However, given the
reasoning outlined above, the Chairperson found it unnecessary to further elaborate
on these issues in that the claim of the Claimant is inadmissible.
17. The Chairperson remarked that any different conclusion from the one above would
jeopardize the spirit of the Procedural Rules insofar as parties would be able to file
independent claims as they please, which contravenes not only the principles of good
procedural order and procedural economy, but would jeopardize due process and,
ultimately, legal certainty within the FIFA dispute resolution system.
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c.
Costs
18. 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 Claimant.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Adnan Aganovic, 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
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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