Labour Disputes
Texto da decisão
REF FPSD-3183
Decision of the
Dispute Resolution Chamber
passed on 27 January 2022
regarding an employment-related dispute concerning the player Obren
Cuckovic
BY:
Clifford J Hendel (USA/France), Deputy Chairperson
Andre Megale (Brazil), member
Stijn Boeykens (Belgium), member
CLAIMANT:
Obren Cuckovic, Serbia
Represented by Jan Schweele
RESPONDENT:
Swallows FC, South Africa
Represented by Leruma Emmanuel Thobejane
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REF FPSD-3183
I.
Facts of the case
1.
On 27 July 2015, the Serbian player, Obren Cuckovic (hereinafter: the Claimant) and the
South African club Moroka Swallows FC (hereinafter: “Moroka Swallows”), concluded a
mutual termination agreement (hereinafter: “termination agreement”), effectively
terminating the employment contract concluded between the Claimant and Moroka
Swallows FC on 11 July 2014.
2.
Pursuant to annexure A of the termination agreement, Moroka Swallows agreed to pay to
the Claimant a settlement amount of South African Rand (ZAR) 712,634 in twenty-four
monthly instalments of ZAR 26,693.08 each, between the period 30 September 2015 and 31
August 2017.
3.
On 12 March 2018, the Claimant sent a default notice to Moroka Swallows for payment of
19 outstanding instalments, providing it with a deadline of 10 days to comply with payment
of the due amounts, however to no avail.
4.
On 27 March 2018, the Claimant lodged a claim under case ref. nr. 18-00638/nip against
Moroka Swallows before the Dispute Resolution Chamber and on 4 May 2018, the aforesaid
case was closed by the FIFA administration, due to the club no longer being affiliated to the
South African Football Association (“SAFA”).
5.
According to the Claimant, it recently came to his attention that Moroka Swallows was
allegedly reintegrated under SAFA under a new entity, “competing in the second and most
recently in the first tier of South African football.”
6.
In this context, the Claimant indicated that that he is not certain of the reintegration date but
if a minimum date should be establish it should be 17 August 2019, “in accordance with the
match calendar, in which it is visible that the Moroka Swallows played the first round of the
South African Second Tier on 17 August 2019, against TS Sporting”
7.
Therefore, according to the Claimant, the new entity i.e. Swallows FC (hereinafter: the
Respondent) is therefore, the legal sporting successor of the former club/entity, Moroka
Swallows.
8.
On 12 July 2021, the Claimant sent a letter to SAFA, requesting “information on the new
affiliated club, FC Swallows, formerly known as Moroka Swallows FC, namely in which date
such club was (re)affiliated or reintegrated within your Football Association”
9.
Hereafter, on 26 July 2021, SAFA provided the Claimant with a letter from the Respondent,
which states the following:
“There is no team registered in the PSL as Swallows FC.
Swallows FC is a Trading Name used by Bahwiti Investments cc .
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Bahwiti Investments cc is the registered entity at PSL trading as Swallows”
10. Moreover, on 12 July 2021, the Claimant sent a default notice to the Respondent, granting
it a final period of 10 days to comply with the due payments of the nineteen instalments and
the attorney expenses incurred by the Claimant, however to no avail.
II. Proceedings before FIFA
11. On 29 July 2021, 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. According to the Claimant, the Respondent is the legal sporting successor of the debtor club,
Moroka Swallows, therefore the Respondent is liable for Moroka Swallows’ former
obligations towards the Claimant, moreover the two clubs have the following in common:
-
The very similar name and logos;
The identical nickname of the teams (“The Birds”);
The same registered office and the same stadium – Dobsonville Stadium;
The same colors of identification of both teams;
13. The requests for relief of the Claimant, were the following, that:
a)
b)
c)
b.
the FIFA DRC issue an award in favour of the Claimant in the amount of EUR 37,925.29,
corresponding to ZAR 564,168.52 – 19 instalments of ZAR 29,693.08 each, the first due
on 29 February 2016 and the last due on 31 August 2017, plus 5% interest p.a. from
each due date until the date of effective payment;
the Respondent pay to the Claimant a contribution of his legal expenses he incurred,
based on the penalty clause contained in clause F) of the Contract, in the amount of EUR
4,900, plus 5% interest p.a. from the due date until the date of effective
the FIFA DRC imposes on the Respondent a sanction pursuant to Art. 12bis.
Position of the Respondent
14. In its reply to the claim, the Respondent indicated that ‘Swallows Football Club’ is not the
same club that the Claimant signed a contract with.
15. Furthermore, according to a court order, the club Moroka Swallows ceased to exist on 1
March 2018.
16. However, the Respondent investigated the matter and established that Moroka Swallows is
currently playing in the amateur divisions.
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17. The Respondent indicated that during the liquidation of Moroka Swallows, their assets were
placed on auction and that the director of the Respondent “in his personal capacity purchased
some of the memorabilia and social media accounts from the auction, hence the usage of
such items for marketing purposes.”
18. Moreover, the Respondent indicated that the stadium Dobsonville was available, and the
Respondent acquired the use of the facilities as it complies with the league rules.
19. The Respondent mentioned that it could not use the name Moroka Swallows as the club still
exist at the lower division and the Claimant “as much as they were able to investigate and
find us, they also would have been able to establish that the club still exist in the lower division
and followed them accordingly with their claim. “
20. The Respondent therefore requested that the claim instituted against them be dismissed
based on the following reasons:
-
Swallows FC is a new entity, it is not a debtor herein as it is being alleged and it is nor
associated with Moroka Swallows FC neither is it the rebirth of Moroka Swallows FC as the
said club still exist in the lower divisions.
-
the letter of demand and the fact that payment indeed has not been made is due to the
vehement denial of any indebtedness whatsoever towards the creditor by the Respondent
-
time it was initially being claimed for on the 12 March 2018 it has all been time barred and
hence prescribed and cannot be heard by the Dispute Resolution Chamber.
-
All financial responsibilities of Moroka Swallows Fc Ltd are being administered by the
liquidators as disclosed above and we as the new club do not know the player, nor have any
agreement whatsoever with him and hence persist that we are not indebted to him and, we
have not breached any Article whatsoever of the FIFA Regulations.
c.
South African Football Association (“SAFA”)
21. On 13 October, SAFA provided a letter from the Premier Soccer League (“PSL”), in which the
following was indicated:
-
Moroka Swallows was relegated to the amateur ranks at the end of 2015/2016 season
and has not participated in the premier or first division of the PSL league since then;
The Respondent is a different club owned by a private corporation;
That the Respondent is not the legal sporting successor of Moroka Swallows FC.
22. Additionally, the PSL made reference to a letter which it sent to FIFA on 19 September 2019,
which inter alia stipulated the following:
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“for completeness I mention that a national first division club by the name of Maccani
Football Club sought approval to use the name Swallows FC this season. The application
was approved and the club now campaigns under the new name Swallows FC.”
23. On 2 December 2021, SAFA in a letter confirmed the following:
-
“Moroka Swallows is currently affiliated under SAFA-Roodepoort LFA (Local Football
Association) 5th Division; and
-
Swallows FC is currently participating in Dstv Premier Soccer league.”
24. On 25 January 2022, SAFA sent another letter to the FIFA administration, mentioning the
following:
1. Swallows FC is currently participating in Dstv Premier Soccer league.
2. Moroka Swallows FC does not exist under SAFA structures
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
25. 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 July 2021 and submitted for decision on
27 January 2022. Taking into account the wording of art. 34 of the October 2021 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.
26. 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 (August 2021 edition), the Dispute
Resolution Chamber is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a Serbian player and a
South African club.
27. Nevertheless, the DRC first of all acknowledged that before entering into the analysis of the
present case, it first had to investigate as to whether the claim (or part of it) could be considered
time-barred.
28. At this point, the Chamber referred to art. 23 par. 3 of the Regulations which stipulates that
the decision-making bodies of FIFA shall not hear any dispute if more than two years have
elapsed since the facts leading to the dispute arose. The application of this time limit shall be
examined ex officio in each individual case.
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29. In this context, the Chamber recalled that the basis of the claim of the Claimant is annex A of the
termination agreement, in accordance with which Moroka Swallows agreed to pay to the
Claimant the settlement amount of South African Rand (ZAR) 712,634 in twelve monthly
instalments of ZAR 26,693.08 each from 30 September 2015 until 31 August 2017.
30. The Chamber – at this point – took note of the position of the Claimant, who explicitly stated
that the limitation period was interrupted at the time he lodged his initial claim on 27 March
2018. Following this line of reasoning, the members of the Chamber agreed that by lodging
a claim on 27 March 2018 against Moroka Swallows, which claim consequently closed due
to the non-affiliation of said entity to SAFA, the statute of limitation did not arise until the
moment the Respondent was reintegrated in a competition of SAFA, i.e. 17 August 2019,
and restarted as from said moment.
31. In conclusion, the DRC concurred with the position of the Claimant and established that,
when the Claimant lodged the current claim on 29 July 2021, not more than two years had
lapsed since the event giving rise to the present dispute, i.e. the date of 17 August 2019,
when the Respondent was integrated in a competition of SAFA.
32. Having established the foregoing, the Chamber subsequently 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 Player
(August 2021 edition),and considering that the present claim was lodged on 29 July 2021,
the February 2021 edition of said regulations (hereinafter: the Regulations) is applicable to
the matter at hand as to the substance.
b. Burden of proof
33. 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
34. 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.
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i. Main legal discussion and considerations
35. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the parties strongly dispute the fact as to whether the
Respondent is to be considered the sporting successor of Moroka Swallows.
36. Firstly, the members of the Chamber started by acknowledging the position of the Claimant,
who stressed that the Respondent is the sporting and/or legal successor of Moroka Swallows,
by highlighting the similarities between the two clubs as well as explaining that the
Respondent was formed on 1 August 2019 and that the approval of the usage of the name
Swallows FC was granted to the Respondent in and around September 2019 via the
Professional Soccer League (PSL).
37. The members of the Chamber further took note of the Respondent’s position, which stressed that
the mentioned clubs Moroka Swallows and Swallows FC (i.e. the Respondent) are different
entities, being that the Respondent is a new entity not associated to Moroka Swallows, and
moreover, that the Moroka Swallows still participates in the lower leagues of SAFA.
38. In continuation, the DRC considered each position of the parties
and focused their attention on the following facts, which follow from the documentation
that has been submitted by the parties in the scope of the current dispute:
a.
b.
c.
d.
both the Respondent and Moroka Swallows played in the same city;
both clubs held their local matches in the same stadium;
both clubs use similar colours and logos; and
both clubs uses the same nickname.
39. Additionally, the DRC acknowledged the various correspondence sent by SAFA to the FIFA
administration, in particular its correspondence of 25 January 2022, in which SAFA confirmed
that:
-
“Swallows FC is currently participating in Dstv Premier Soccer league.
Moroka Swallows FC does not exist under SAFA structures”
40. On account of all the above, the DRC concluded that, based on the documentation on file,
there is sufficient documentary evidence on the basis of which it can be established that the
Respondent - by using a similar name, similar colours and the same stadium - had the
intention to maintain the identity and image of Moroka Swallows, in order to be considered
for the public perspective the same club as Moroka Swallows FC.
14. In view of the foregoing conclusions, the DRC concluded its deliberations by deciding that in
the current matter, the Respondent is can be considered the sporting successor of Moroka
Swallows, and it is therefore liable to pay for its debts as per the contents of the termination
agreement dated 27 July 2015.
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ii. Consequences
41. Having stated the above, the members of the Chamber decided that, in accordance with the
general legal principle of pacta sunt servanda, the Respondent is liable to pay to the Claimant
the amount of ZAR 564,168.52 corresponding to 19 instalments of ZAR 29,693.08 each, the
first due on 29 February 2016 and the last due on 31 August 2017
42. In addition, and taking into consideration the Claimant’s claim and the jurisprudence of the
Chamber, the DRC decided to award on the aforementioned amounts interest of 5% p.a. as
from the respective due dates until the date of effective payment.
43. Moreover, the Dispute Resolution Chamber decided to reject the Claimant’s claim pertaining
to legal costs in accordance with art. 25 par. 8 of the Procedural Rules and the Chamber’s
respective longstanding jurisprudence in this regard.
iii. Compliance with monetary decisions
44. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24bis
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.
45. 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.
46. 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. 24bis par. 2, 4, and 7 of the Regulations.
47. 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.
48. 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. 24bis par. 8 of
the Regulations.
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d. Costs
49. 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.
50. 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.
51. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Obren Cuckovic, is partially accepted.
2.
The Respondent, Swallows FC, has to pay to the Claimant, the amount of ZAR 564,168.52 as
outstanding amount plus 5% interest p.a. as from the respective due dates until the date of
effective payment, as follows:
-
▪
on the amount of ZAR 29,693.08 as from 1 March 2016
on the amount of ZAR 29,693.08 as from 1 April 2016
on the amount of ZAR 29,693.08 as from 1 May 2016
on the amount of ZAR 29,693.08 as from 1 June 2016
on the amount of ZAR 29,693.08 as from 1 July 2016
on the amount of ZAR 29,693.08 as from 1 August 2016
on the amount of ZAR 29,693.08 as from 1 September 2016
on the amount of ZAR 29,693.08 as from 1 October 2016
on the amount of ZAR 29,693.08 as from 1 November 2016
on the amount of ZAR 29,693.08 as from 1 December 2016
on the amount of ZAR 29,693.08 as from 1 January 2017
on the amount of ZAR 29,693.08 as from 1 February 2017
on the amount of ZAR 29,693.08 as from 1 March 2017
on the amount of ZAR 29,693.08 as from 1 April 2017
on the amount of ZAR 29,693.08 as from 1 May 2017
on the amount of ZAR 29,693.08 as from 1 June 2017
on the amount of ZAR 29,693.08 as from 1 July 2017
on the amount of ZAR 29,693.08 as from 1 August 2017
on the amount of ZAR 29,693.08 as from 1 September 2017
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.
Pursuant to art. 24bis 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 the ban shall
be of 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.
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6. The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24bis par. 7 and 8 and art. 24ter of the Regulations on the Status and Transfer of
Players.
7. 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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