Labour Disputes
Texto da decisão
REF. FPSD-12871
Decision of the
Dispute Resolution Chamber
passed on 8 February 2024
regarding an employment-related dispute concerning
the player Christian Clemens
BY:
Frans de Weger (the Netherlands), Chairperson
Stijn Boeykens (Belgium), member
André dos Santos Megale (Brazil), member
CLAIMANT:
Christian Clemens, Germany
Represented by Mr Basri Yilmaz
RESPONDENT:
Lechia Gdańsk S.A., Poland
pg. 2
REF. FPSD-12871
I. Facts of the case
1. On 2 February 2022, the German player Christian Clemens (hereinafter: Claimant or player)
and the Polish club Lechia Gdańsk S.A. (hereinafter: club or Respondent) concluded an
employment contract.
2. On 14 January 2023, the Claimant and the Respondent signed a mutual termination
agreement (hereinafter: the Agreement) in accordance with which the aforementioned
contract had been amicably terminated.
3. In accordance with art. 3 of the Agreement, the following was stipulated:
“The player declares that he has no claims against the club related to the performance and
termination of the Contract, except for:
a) The remuneration due for the month of December 2022 in the amount of PLN 74,500 plus VAT;
b) The remuneration due for the month of the relevant part of January 2023 (01.01. – 14.01.) in
the amount of PLN 37,250 plus VAT;
c) Match bonuses due for the period from 01.07.2022 – 31.12.2022 in the amount of PLN 14,500
plus VAT;
d) Individual bonuses for taking the 4 place in the 2021/2022 season in the amount of PLN 9,415
plus VAT;
(…)
Furthermore, the club hereby undertakes to pay the player only the compensation payable in
accordance to the following rules:
a) PLN 111,750 plus VAT payable until 01.04.2023 ;
b) PLN 74,500 plus VAT payable until 01.05.2023.“
4. On 1 June 2023, the Claimant put the Respondent in default and requested payment of
PLN 247,415, granting a deadline of 10 days to remit the above amount.
5. On 23 June 2023, the Claimant lodged a claim before the Football Tribunal for overdue
payables under the above Agreement, under the reference FPSD-10663.
6. The Respondent provided no submission in said claim.
7.
The Claimant’s request for relief was as follows:
“PLN 247,415 plus 5% default interest since the due date of each sub-amount.”
pg. 3
REF. FPSD-12871
8. On 7 July 2023, the Respondent paid PLN 11,580.45.
9. On 10 July 2023, the Respondent paid PLN 63,652.50 to the Claimant.
10. On 16 August 2023, the Single Judge of the DRC rendered a decision in the above matter,
with reference FPSD-10663, finding as follows:
-
The claim of the Claimant, Christian Clemens, is accepted;
The Respondent, Lechia Gdansk, must pay to the Claimant the following amounts:
PLN 247,415 as outstanding remuneration plus interest of p.a. as follows:
o
5% interest p.a. on the amount of PLN 37,250 as from 2 March 2023 until the date of
effective payment;
o
5% interest p.a. on the amount of PLN 111,750 as from 2 April 2023 until the date of
effective payment;
o
5% interest p.a. on the amount of PLN 74,500 as from 2 May 2023 until the date of
effective payment;
o
5% interest p.a. on the amount of PLN 23,915 as from 2 June 2023 until the date of
effective payment.
11. On 30 August 2023, the Respondent paid the amounts of PLN 172,182.05 and PLN 4,736.07,
corresponding purportedly to the outstanding amount under the decision with FPSD-10663
and corresponding interest to the Claimant.
12. On 16 October 2023, the FIFA Disciplinary Committee imposed a registration ban on the
Respondent for purportedly not complying with the decision in the matter FPSD-10663.
13. On 17 October 2023, the Respondent sent a letter to the FIFA Disciplinary Committee,
indicating that it has remitted the full amount – including the payments of 7 July 2023 and
10 July 2023 respectively, and that the transfer ban should be lifted accordingly. The Claimant
also indicated that it would pay PLN 14,067.95, which corresponded to the VAT purportedly
applicable on part of the amount under the Agreement; the Respondent specified in said
letter that although VAT was not due pursuant to the decision, it paid this as a gesture of
goodwill and precaution in order to lift the ban.
14. On the same day, the FIFA Disciplinary Committee invited the Claimant to provide its position
as to whether it considered the decision to have been complied with.
15. On 18 October 2023, the Respondent made the payment of PLN 14,067.95 to the Claimant.
pg. 4
REF. FPSD-12871
16. On 24 October 2023, the FIFA Disciplinary Committee lifted the transfer ban, in the absence
of a reply by the Claimant.
17. On 30 October 2023, the Claimant informed the Respondent via email that he was still owed
PLN 42,837.50, corresponding to VAT applicable on the amounts payable under the
Agreement, and ordered in the subsequent DRC decision.
pg. 5
REF. FPSD-12871
II. Proceedings before FIFA
18. On 29 November 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
19. According to the Claimant, the Respondent failed to pay VAT applicable on the overdue
amount of PLN 186,250.
20. In this respect, the Claimant acknowledged a payment of PLN 14.067.95, which was related
to VAT on the amount of PLN 61,165 under the Agreement.
21. The Claimant specified that he is a “self-employed entity” under Polish law, and that, as a
result, he must pay taxes himself, as opposed to having this amount deducted from his
salary.
22. The Claimant also outlined that he had put the Respondent in default, to no avail.
23. Thus, the Claimant argued that VAT of 23% on the amount of PLN 186,250 – i.e.
PLN 42,837.50 – should be paid by the Respondent.
24. The amount outlined above was requested by the Claimant without applicable interest.
b. Position of the Respondent
25. In its reply, the Respondent alleged that the Claimant’s request, as well as the DRC Single
Judge’s decision in respect of the matter FPSD-10663 were concerning the “net” amounts
under the Agreement – i.e., the Claimant did not request VAT as part of his initial petition.
26. The Respondent herewith emphasised that it was the Claimant’s decision to limit his claim
to the principal amount under the Agreement, without requesting also payment of VAT
therein. By now requesting VAT on an amount already decided upon in another judicial
proceeding, the Respondent argues, the Claimant is in breach of both res iudicata and ne
bis in idem.
27. The Respondent also explained in detail why the current petition is affected by res iudicata,
by illustrating that it meets the requirements of treating 1) the same parties, 2) the same
object (i.e. the same payments resulting from the Agreement) and 3) relying on the same
cause of action (i.e. non-payment by the Respondent).
pg. 6
REF. FPSD-12871
28. The Respondent also argued that the Claimant is not entitled to any VAT under Polish law,
regardless of what is stated under the Agreement, as VAT may only be charged on services
provided, and not on fixed compensation in a settlement agreement.
29. Therefore, the Respondent requested the claim to be rejected, on its merits, as well as
based on the principle of res iudicata.
pg. 7
REF. FPSD-12871
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
30. 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 29 November 2023 and
submitted for decision on 8 February 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.
31. 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 March 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
German player and a Polish club.
32. Notwithstanding the above, the Chamber took note of the allegation of res iudicata
presented by the Respondent. In this respect, the Chamber firstly wished to remind the
parties that the potential application of res iudicata was a procedural matter, rather than
being linked to the merits of a case, and that, as a result, such issue had to be addressed
preliminarily in order to establish whether the claim could be analysed as to its merits to
begin with.
33. Having said this, the Chamber recalled the argumentation presented by the Respondent,
namely that the Claimant, by refusing to include VAT as part of his request for relief in the
claim with reference FPSD-10663, had renounced his right to subsequently claim it, as the
decision which awarded the relevant principal amounts under the Agreement has
established res iudicata effect.
34. With this in mind, the Chamber referred to the requirements of the doctrine of res iudicata,
and wished to underline that said principle is applicable if, cumulatively and necessarily,
the parties and the object of the matter in dispute are identical.
35. In this respect, the criterion of identity of the parties is given if the parties to the dispute
are the same. In the matter at hand, the Chamber was able to observe that the parties to
the dispute were clearly also parties to the proceedings leading to the decision allegedly
giving rise to the effect of res iudicata, namely FPSD- 10663, as well as in the dispute at
stake. As a consequence, considering that the parties to both disputes were the same, the
Chamber came to the conclusion that the condition of the identity of the parties is fulfilled.
pg. 8
REF. FPSD-12871
36. Furthermore, the Chamber turned its attention to the criterion of the object matter in
dispute. In this respect, it 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.
37. When comparing the claim previously lodged with FIFA, and the one at hand, the Chamber
was able to note that both of them related to the compliance of the Respondent with the
same financial terms of the Agreement. Whereas the Chamber acknowledged that the
Claimant was of the opinion that the basis of the present dispute fundamentally differed
to the basis of FPSD-10663, given that he had only claimed VAT applicable on those
instalments, as opposed to the principal amounts, the Chamber considered that the failure
to pay such VAT constituted part of the same cause of action as the initial failure to pay the
principal amounts – which precisely had been dealt with during the proceedings with ref.
FPSD-10663.
38. Equally, the Chamber pointed out that the Claimant had the opportunity to include the
request for VAT in his previous claim, or to specify whether the amounts claimed in those
proceedings should be net or gross. Failure to do so, in the Chamber’s opinion, led to the
cause of action (Streitgegenstand) being resolved and the Claimant being precluded from
requesting any further amounts thereunder – including the VAT presently claimed.
39. Lastly, the Chamber wished to refer to the jurisprudence of the Swiss Federal Tribunal,
pursuant to which “the res iudicata 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.”
40. On account of the above, the Chamber concluded that both legal actions not only concern
identical parties to the dispute, but also identical objects and requests for relief.
41. 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 iudicata and FIFA is
not in a position to deal again with the substance of the dispute.
42. The claim was, thus, declared as inadmissible.
b. Costs
43. 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.
44. 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.
pg. 9
REF. FPSD-12871
45. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 10
REF. FPSD-12871
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Christian Clemens, is inadmissible.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-12871
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
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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