DRC - Preliminary Decisions
Texto da decisão
REF FPSD-10633
Decision of the
Dispute Resolution Chamber
passed on 7 July 2023
regarding a dispute concerning the player Nikola Djurdjic
BY:
Frans de Weger (The Netherlands), Chairperson
CLAIMANT:
Nikola Djurdjic, Serbia
Represented by Filip Blagojevic
RESPONDENT:
Chengdu Rongcheng FC, China PR
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REF FPSD-10633
I. Facts of the case
1.
The parties to this dispute are the Serbian player, Nikola Djurdjic (hereinafter: the player
or the Claimant); and the Chinese club, Chengdu Rongcheng FC (hereinafter: the club or
the Respondent).
2.
As explained in the relevant section below, there was a previous dispute in front of the
FIFA Dispute Resolution Chamber (DRC) involving the same parties and with the
intervention of the Swedish club, Degerfors IF. Such dispute was decided by the DRC in
2021 and subsequently appealed to the Court of Arbitration of Sport (CAS).
3.
In the dispute at hand, the player thoroughly recalled the facts and submissions of the
parties during the previous proceedings before both the DRC and CAS. For the sake of
good procedural order, the Chairperson of the DRC explained: all facts and supporting
documentation submitted by the player were received and analysed, however, only the
ones considered pertinent for the assessment of this specific matter are indicated below.
a.
The contractual basis
4.
On 23 January 2020, the player and the club concluded an employment contract valid as
from 23 January 2020 until 22 January 2022 (hereinafter: the Employment Contract).
5.
According to the player, the conclusion of the Employment Contract was the result of the
cooperation of a group of intermediaries including but not limited to Mr Sunir Panel,
owner of the Dutch company Supervision Management (hereinafter: the Company).
6.
The Company was duly authorized by the player to explore and develop his image rights.
7.
In light of the above and also on 23 January 2020, the club and the Company concluded a
document titled “License of Image Rights relating to Nikola Durdic” (hereinafter: the IRA).
The player is not a party to the IRA, which is solely signed by the club and the Company.
8.
Pursuant to clause 3 of the IRA, the club undertook to pay the Company in consideration
of the exploitation of the player’s image rights: (i) EUR 588,235 net for the year 2020; (ii)
EUR 705,882 net for the year 2021; and (iii) EUR 823,529 for optional year of 2022. Such
payments should be remitted to the European bank account of the Company.
9.
The IRA also established, inter alia, the following, quoted verbatim:
“4.1. This Agreement shall have effect on and from the date of signature of this Agreement and
shall subsist for as long as [the Employment Contract] subsists unless terminated earlier in
accordance with this clause.
[...]
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10.2. The termination or expiry of this Agreement shall not affect in any way any prevision under
[the Employment Contract] (provided that [the Employment Contract] survives such
termination or expiry). On termination or expiry of this Agreement (provided that [the
Employment Contract] survives such termination or expiry), the club shall agree with [the
player] a similar net fee to be paid to [the player] as the remaining amount that still was
payable to the Company by the club under this Agreement.
[...]
12. This Agreement is governed by, and shall be construed in accordance with the laws of
Switzerland. All disputes with respect to this Agreement, including, without limitation its validity,
construction and performance shall belong to the exclusive jurisdiction of the courts of
Lausanne, Switzerland”.
b.
The previous proceedings in front of the DRC (FPSD-3035)
10. On 20 July 2021, the club lodged a claim against the player in front of the DRC, which was
filed under ref. no. FPSD-3035 (hereinafter: the Previous Claim). Contextually, the club
claimed that it was forced by the player to terminate the employment contract on 10 July
2021, hence that it should be entitled to compensation for breach of contract in line with
art. 17 of the FIFA Regulations on the Status and Transfer of Players (RSTP).
11. On 23 July 2021, the player was provided with a copy of the Previous Claim and invited by
the FIFA general secretariat to submit his reply with any documentary evidence he
deemed useful in its support.
12. On 16 August 2021, the player filed his reply to the Previous Claim and lodged a
counterclaim against the club. The player argued that the termination of the Employment
Contract by the club took place without just cause. He claimed to be the party entitled to
receive outstanding remuneration and compensation for breach of contract. No
reference was made to the IRA in the player’s submissions in the context of the Previous
Claim.
13. On 17 August 2021, the club was invited by the FIFA general secretariat to submit its reply
to the counterclaim of the player, which it did on 4 September 2021.
14. On 27 September 2021, the FIFA general secretariat acknowledged that the player had
entered into a new employment relationship with the Swedish club, Degerfors IF. As such
and in light of any potential consequences arising in light of art. 17, par. 2 and 4 of the
FIFA RSTP, Degerfors IF was also invited to submit its position on the case file.
15. On 1 November 2021, Degerfors IF submitted its position on the matter.
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16. On 25 November 2021, the Previous Claim was submitted to a decision by the DRC, the
grounds of which were notified to the parties on 11 January 2022 (hereinafter: the DRC
Decision).
17. According to the DRC Decision:
•
the Employment Contract was prematurely terminated by the club on 13 July
2021;
•
the termination took place without just cause; and
•
considering the particularities of the case, the club should be liable to pay the
player EUR 496,525.47 as compensation for breach of contract plus 5% interest
p.a. as from 10 August 2021 until the date of effective payment.
18. No reference was made in the DRC Decision to the IRA.
c.
Previous CAS proceedings (CAS 2022/A/8621)
19. On 30 January 2022, the player filed an appeal against the DRC Decision in front of CAS,
which was filed under ref. no. CAS 2022/A/8621 Nikola Djurdjic v. Chengdu Rongcheng
Football Club LTD. Inter alia, he requested: (i) the amount of compensation to be increased
considering the automatic extension of the Employment Contract; and (ii) to be awarded
additional monies per the IRA, insofar as it is an integral part of his employment
relationship, as well as it became disputed after his counterclaim was lodged in front of
the FIFA DRC. Degerfors IF was not a party to the cited CAS proceedings.
20. The player’s requests for relief at CAS were as follows, quoted verbatim:
“1. The appeal filed on 30 January 2022 by Mr. Nikola Djurdjic against the decision issued on 25
November 2021 by the Football Tribunal - the Dispute Resolution Chamber of the Federation
Internationale de Football Association is upheld.
2. The decision issued on 25 November 2021 by the Football Tribunal - the Dispute Resolution
Chamber of the Federation Internationale de Football Association is confirmed, save for
paragraph 4 of the operative part, which shall be amended as follows:
Chengdu Rongcheng Football Club LTD has to pay to Mr. Nikola Djurdjic:
- an amount of EUR 496,525.47, plus interest of 5% per annum from 10 August 2021 until the
payment is effectively made;
- an amount of EUR 181.818, plus interest of 5% per annum from 13 January 2022 until
the payment is effectively made;
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REF FPSD-10633
- an amount of EUR 2,082,922.13, plus /ntere.st of 5% per annum from 13 July 2021 until the
payment is effectively made;
- an amount of EUR 2,522,075 plus interest of 5% per annum from 13 July 2021 until the
payment is effectively made.
3. Chengdu Rongcheng Football Club LTD shall bear its own costs and is ordered lo pay Mr.
Nikola Djurdjic a contribution towards his legal fees and other expenses incurred in connection
with these arbitration proceedings, the amount of which will be specified at a later stage;
4. The entire costs of the CAS administration costs and the arbitration fees shall be borne in their
entirety by Chengdu Rongcheng Football Club LTD."
21. On 19 April 2022, the club filed its reply brief at CAS and opposed to the position of the
player. Inter alia, the club challenged CAS’ jurisdiction over the IRA.
22. On 30 December 2022, the CAS issued its award in connection with the abovementioned
matter (hereinafter: the CAS Award). The operative part of the CAS Award read as follows:
“The Court of Arbitration for· Sport rules that:
1. The appeal filed on 30 January 2022 by Nikola Djurdjic against the decision rendered on 11
January 2022 by the FIFA Dispute Resolution Chamber is partially upheld.
2. Point 4 of the operative part of the decision issued on 11 January 2022 by the FIFA Dispute
Resolution Chamber is amended as follows:
Chengdu Rongcheng Football Club LTD has to pay to Nikola Djurdjic
a. an amount of EUR 18 1,818, plus interest of 5% per annum from l3 January 2022 until
the payment is effectively made;
b. an amount of EUR 2,082,922.13, plus interest of 5% per annum from 13 July 2021 until
the payment is effectively made.
3. The costs of the arbitration, to be determined and served separately to the Parties by the CAS
Court Office, shall be borne by Nikola Djurdjic and Chengdu Rongcheng Football Club LTD in
equal shares.
4. Nikola Djurdjic and Chengdu Rongcheng Football Club LTD shall each bear their respective
legal fees and expenses.
5. All other and further motions or prayers for relief are dismissed”.
23. The CAS Appeal read inter alia as follows regarding its jurisdiction over the IRA, quoted
verbatim:
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“A. No competence of the CAS deriving from the IRA
[...]
It follows from a literal construction of Article 12 of the IRA that the competent forum to decide
disputes arising from the IRA are ‘the courts of Lausanne’. The Appellant is of the view that this
term does not only cover state courts in Lausanne, but also includes arbitral tribunals having
their seat in Lausanne. The Sole Arbitrator does not agree with such construction of the clause.
The term ‘courts’ typically refers to state courts. In addition, the Sole Arbitrator notes that unlike
the clause contained in Article 8(2) of the Contract - Article 12 of the IRA does not provide for an
‘express waiver lo the national courts’. Furthermore, the clause in Article 12 of the IRA does not
foresee - e.g. - first-instance proceedings before the FIFA adjudicatory bodies. Absent any clear
indication or evidence submitted by the Appellant that the parties to the IRA intended the term
‘courts of Lausanne’ to cover al so arbitral tribunals, the Sole Arbitrator is not prepared to
construe the provision as granting a mandate to CAS to adjudicate disputes arising from the IRA.
While the word ‘Court’ appears in the English version of CAS' name, CAS is not a court in the
proper sense under domestic law but rather an arbitral tribunal.
[...]
To conclude, therefore, the Sole Arbitrator finds that the competence of the CAS to adjudicate
on claims arising from the IRA cannot be based on Article 12 of the IRA.
B. The IRA is not an integral part of the Contract
[...]
Contrary to what the Appellant states, it follows from Article 6 of the Contract that any regulation
pertaining to the use of the Appellant's image rights will not be dealt with in the Contract, but
remains reserved for a ‘separate’ contract. Furthermore, the Sole Arbitrator notes that the
parties to the Contract and to the IRA are different. Thus, for all of these stated reasons, it cannot
be assumed that the contents of the IRA is an integral part of the Contract.
C. Article 8(2) of the Contract does not extend to the disputes arising from the IRA
[...]
In the case at hand, the fact that the IRA contains a separate and different dispute resolution
clause clearly speaks against extending the scope of Article 8(2) of the Contract to disputes
arising from the IRA. In light of Article 12 of the IRA, there is no indication on file that the parties
to the IRA and the Contract (that again are not identical) wanted to submit all disputes arising
from these contracts to the CAS. The Appellant submits that the IRA was a sham and that for this
reason Article 12 of the IRA shall not be attributed any relevance. However, the Sole Arbitrator,
based on the evidence before him, is not prepared to follow this. Consequently, the Sole
Arbitrator finds that CAS' competence for the Appellant's claim based on the IRA cannot be
derived from Article 8(2) of the Contract.
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D. Summary
To conclude, therefore, the Sole Arbitrator finds that - absent any arbitration agreement of the
Parties in favor of the CAS - CAS is not competent to adjudicate any claims arising from the IRA.
Thus, Appellant's claim for payment in the amount of EUR 2,522,075.00 including interest must
be rejected”.
(emphasis in the original)
II. Current proceedings before FIFA
24. On 20 June, the player filed the claim at hand before FIFA.
25. In his claim, the player recalled the contents of the contracts signed between the parties
– especially the IRA – as well as the factual background behind its conclusion. In doing so,
he explained in length that such contract was an integral part of his relationship with the
club despite being signed with the Company, entailing that it should also be taken into
consideration while assessing his outstanding remuneration and compensation for the
unlawful termination by the club.
26. The player also recalled the previous proceedings before the DRC and, in particular,
explained that at the time he filed his counterclaim against the club, the image rights for
2021 were still not due (i.e., deadline for payment until 10 December 2021). Therefore, he
argued that the amounts now claimed could not have been requested at that time.
27. In continuation, the player referred to the CAS Award, however suggested that the Sole
Arbitrator misinterpreted the facts and arrived in a wrong conclusion as to the lack of
jurisdiction. In support of his position, the player made reference inter alia to: (i) a decision
passed by the DRC in the dispute involving the player Daniel Quintana Sosa against the
same club; (ii) multiple CAS awards concerning image rights agreements; (iii) Swiss Law
and practice of the Swiss Federal Tribunal (SFT).
28. Against this background and provided that the IRA was not discussed in the DRC Decision,
the player claimed that FIFA still has jurisdiction over the IRA and should then adjudicate
on the matter. He requested to be awarded the outstanding image rights plus the residual
value of the IRA as part of compensation for breach of contract.
29. The player’s requests for relief were as follows, quoted verbatim:
“1. Chengdu Rongcheng Football Club LTD has to pay to Mr. Nikola Djurdjic EUR 55,555.50 as
outstanding remuneration, plus 5% interest p.a. on this amount as from 21 July 2021 until the
date of effective payment;
or, in the alternative
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REF FPSD-10633
Chengdu Rougcheng Football Club LTD has to pay to Mr. Nikola Djurdjic EUR 30,555.52 net as
outstanding remuneration, plus 5% interest p.a. on this amount as from 21 July 2021 until the
date of effective payment.
2. Chengdu Rongcheng Football Club LTD has to pay to Mr. Nikola Djurdjic EUR 2,994,649.56 a
compensation for early termination, plus 5% interest p.a. on this amount as from 13 July 2021
until the elate of effective payment;
or, in the alternative,
Chengdu Rongcheng Football tub LTD ha to pay to Mr. Nikola Djurcljic EUR 1,647,058 net a
compensation for early termination, plus 5% interest p.a. on this amount as from 13 July 2021
until the elate of effective payment”.
30. On 29 June 2023, the FIFA general secretariat (i) acknowledged receipt of the statement
of claim of the player together with its supporting documentation; and (ii) informed the
player that his claim raised a preliminary procedural matter that should be analysed by
the DRC ex officio.
III. Considerations of the DRC
31. First of all, the Chairperson of the DRC (hereinafter: the Chairperson) analysed whether he
was competent to deal with the case at hand.
32. In this respect, he took note that the present matter was presented to FIFA on 20 June
2023 and submitted for a preliminary decision on 7 July 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.
33. The Chairperson confirmed that, in accordance with art. 19 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. 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).
34. 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 par.1 lit. b) of
the FIFA RSTP (May 2023 edition), the DRC would – in principle – be competent to deal
with the matter at stake, which concerns dispute with international dimension between a
Serbian player and a Chinese club.
35. The Chairperson further observed that the claim sub judice was lodged by the player
against the club pertaining to outstanding image rights and compensation for breach of
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contract in connection with the early termination of the employment relationship
previously maintained between them. Specifically, and provided that the DRC had already
decided that the termination of the Employment Contract by the club took place without
just cause, the player now claims that he should also be awarded the monies included in
the IRA.
36. While considering the above, the Chairperson confirmed that the claim at hand raises a
preliminary procedural matter that shall be analysed ex officio.
37. In particular, the Chairperson was observant that before submitting this matter to FIFA,
the player had already claimed the same amounts in front of CAS. Additionally, he took
due consideration that the CAS Award goes at great length to establish that it has no
jurisdiction over the IRA, which the player now intends to rediscuss. Mutatis mutandis, the
Chairperson remarked that if CAS lacks jurisdiction to rule the dispute between the
parties as to the IRA, the DRC equally cannot entertain it.
38. Accordingly, the Chairperson recalled 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.
39. The cited 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. This principle applies whenever three elements are concurrently present,
namely:
o
o
o
The same persons - eadem personae;
The same object - eadem res; and
The same cause - eadem causa petendi.
40. On this note, the Chairperson went on to analyse the evidence on file regarding previous
dispute between the parties. In this respect, he turned his attention to the DRC Decision
and, mostly, to the CAS Appeal, which was final and binding by now.
41. Subsequently, 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 noted that both the player and the club were the
parties in the proceedings leading to the CAS Award as well as in the dispute at stake.
Consequently, the Chairperson concluded that the condition of the identity of parties is
fulfilled.
42. In addition, 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 player’s appeal at CAS to the
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claim at hand, the Chairperson confirmed that both discuss inter alia the player’s
entitlement to the amounts under the IRA. Consequently, both legal actions were based
on the club’s alleged violation of the same contract and materially contained the very
same request for relief. Thus, the Chairperson underscored that the condition of identity
of the object of the matter in dispute is also fulfilled.
43. In conclusion, the Chairperson determined that both legal actions not only concern
identical parties to the dispute but also identical objects and (partial) requests for relief.
Therefore, he decided that as CAS has already dealt with the exact same matter, passing
a final and binding decision, the present case is affected by res judicata and the DRC is not
in a position to deal again with the substance of the dispute.
44. For the sake of completeness, the Chairperson also wished to outline that the fact that
the player did not refer to the IRA in the Previous Claim is immaterial to the
abovementioned conclusion due to CAS’ de novo power of review. In the Chairperson’s
view, as the matter was already decided upon by the appeal body, the player is prevented
for reopening the same discussion.
45. Therefore, the Chairperson decided that the claim at hand is inadmissible.
46. Lastly, 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 player.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Nikola Djurdjic, 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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