Labour Disputes
Texto da decisão
REF FPSD-3689
Decision of the
Dispute Resolution Chamber
passed on 28 October 2021
regarding an employment-related dispute concerning the player Mitchell
Glenn Donald
BY:
Frans de Weger (Netherlands), Chairperson
Johan van Gaalen (South Africa), member
Dana Mohamed Al-Noaimi (Qatar), member
CLAIMANT:
Mitchell Glenn Donald, Netherlands
Represented by Mr Felipe Augusto Loschi Crisafulli
RESPONDENT:
Yeni Malatyaspor, Turkey
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REF FPSD-3689
I.
Facts of the case
1.
On an unspecified date, the Claimant and the Respondent signed an employment agreement
(hereinafter: the contract), valid between 2 August 2018 and 31 May 2020, based on which
the Claimant was entitled to receive the following amounts:
Season 2018/2019:
• EUR 100,000 in cash ‘at the time of signature’;
• EUR 67,500 on 30 August 2018;
• EUR 67,500 on 30 September 2018;
• EUR 67,500 on 30 October 2018;
• EUR 67,500 on 30 November 2018;
• EUR 67,500 on 30 December 2018;
• EUR 67,500 on 30 January 2019;
• EUR 67,500 on 28 February 2019;
• EUR 67,500 on 30 March 2019;
• EUR 67,500 on 30 April 2019;
• EUR 67,500 on 30 May 2019.
• EUR 12,500 if the Claimant ‘reaches a total of 5 (goal + assist) at official league
games’, which is due ‘every time this number is reached or multiplied’.
Season 2019/2020:
• EUR 1000,000 on 20 August 2019;
• EUR 67,500 on 30 August 2019;
• EUR 67,500 on 30 September 2019;
• EUR 67,500 on 30 October 2019;
• EUR 67,500 on 30 November 2019;
• EUR 67,500 on 30 December 2019;
• EUR 67,500 on 30 January 2020;
• EUR 67,500 on 28 February 2020;
• EUR 67,500 on 30 March 2020;
• EUR 67,500 on 30 April 2020;
• EUR 67,500 on 30 May 2020.
• EUR 12,500 if the Claimant ‘reaches a total of 5 (goal + assist) at official league
games’, which is due ‘every time this number is reached or multiplied’.
2.
What is more, as to the payment of the bonuses for the 2019/2020 season, the contract
contained the following clause: ‘If the player is entitled to the relevant bonuses, Club will pay
the relevant bonuses to Player no later than date of 30.07.2019’.
3.
On 22 July 2020, the Claimant lodged a claim against the Respondent, claiming the payment
of outstanding remuneration (EUR 276,250) and bonuses (EUR 12,500) linked to the
2019/2020 season.
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4.
In reply to the claimed bonuses for the 2019/2020 season, the Respondent argued the
following:
‘[i] if the contract of the player is examined, it can be determined that the following statement
is included: ‘If the player entitled relevant bonuses, Club will pay relevant bonuses to player
no later than date of 30.07.2020’. The football player submitted his petition to FIFA on 21
July 2020. It is not legally possible to subject an undue overdue payment [sic] to a lawsuit and
it must be rejected’.
5.
On 10 December 2020, FIFA’s DRC passed a decision (reference number 20-01039), awarding
the Claimant an amount of EUR 276,250 as outstanding remuneration. With regards to the
claimed bonuses, the DRC considered the following:
‘Moreover, the DRC noted that the player did not submit any proof pertaining to his request
for the payment of the bonus, i.e. that he allegedly scored 5 goals during the 2019/2020
season, hence, the DRC decided to reject this part of the player’s claim corresponding to USD
12,500’.
6.
The Claimant did not put the Respondent in default.
II. Proceedings before FIFA
7.
On 2 April 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
8.
The Claimant requested the payment of an amount of EUR 12,500, plus 5% interest p.a. as
from the due date, as outstanding bonuses.
9.
In his claim, the Claimant explains that he deems that the article related to the payment date
of the bonuses contains a clerical error (it should mention 2020 instead of 2019) as well as
that, since the Respondent never contested his right to receive the claimed bonuses, the DRC
should award those bonuses to him.
10. The Claimant submitted documentary evidence, confirming that the Claimant had reached
number of goals and assists mentioned ion the relevant article.
b. Position of the Respondent
11. According to the Respondent, the claim is time-barred and should be rejected.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
12. 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 2 April 2021 and submitted for decision on
14 October 2021. 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.
13. 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 Dutch player and a
Turkish club.
14. The Chamber then reverted to the argument of the Respondent, according to whom the
present matter is barred by the statute of limitations.
15. In this regard, the members of the Chamber referred to art. 25 par. 5 of the FIFA Regulations
on the Status and Transfer of Players (edition February 2021), according to which, inter alia,
the Dispute Resolution Chamber shall not hear any case subject to the said Regulations if
more than two years have elapsed since the event giving rise to the dispute. The present claim
having been lodged in front of the DRC on 2 April 2021 and the event giving rise to the
dispute, that is, the non-payment - after 30 July 2019 - of the bonuses linked to the
2019/2020 season that allegedly fell due, the members of the Chamber had to reject the
respective argument of the Respondent and confirmed that the present petition was lodged
in front of the DRC within said two years’ period of time. The matter is, thus, not barred by
the statute of limitations in accordance with art. 25 par. 5 of the Regulations on the Status
and Transfer of Players (February 2021).
16. Subsequently, the Chamber 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 Players (August 2021 edition) and
considering that the present claim was lodged on 2 April 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
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17. 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
18. 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.
i. Main legal discussion and considerations
19. 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 whether the Claimant is entitled
to certain bonuses, linked to the 2019/2020 season, in light of the fact that already a previous
decision between the parties was passed by the Dispute Resolution Chamber, where such
request was at stake.
20. In this context, the Chamber acknowledged that it its task was to determine what the
consequences of said first decision were to the matter at hand, taken into account the general
legal principle of res iudicata and whether it could enter into the substance of the matter and
pass a decision.
21. Accordingly, the Chamber deemed it appropriate to briefly recall that on the basis of the
principle of res iudicata, a decision-making body is not in a position to deal with the substance
of a case in the event that another deciding body, or even the same deciding body, has
already dealt with the same matter.
22. In this respect, the Chamber underlined that the principle of res iudicata is applicable if
cumulatively and necessarily, (a) the identity of the parties to the dispute and (b) the object
of the matter in dispute are identical.
23. In this respect, the Chamber 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 Chamber noted that both the
Claimant and the Respondent were in the previous proceeding before FIFA, which was
pending under the reference number 20-01039.
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24. As a consequence, as the parties to both disputes are the same, the Chamber came to the
conclusion that the condition of the identity of parties is given.
25. The Chamber then turned its attention to the criterion of the object of the matter in dispute.
26. In this respect, the members of the Chamber started by acknowledging that the object of the
subject matter is given, if the requests of the two claims are similar.
27. In view of the foregoing, the Chamber went on analysing and comparing the requests made,
i.e., the claim of the Claimant in case 20-01039 against the Respondent in front of the
Dispute Resolution Chamber, and the Claimant’s claim in the matter at hand, FPSD-3689,
against the Respondent before the Dispute Resolution Chamber.
28. From the information and documentation on file, the Chamber could verify that in the case
20-01039, the Claimant initiated legal proceedings in front of the Dispute Resolution
Chamber against the Respondent in order to obtain bonuses in the amount of EUR 12,500,
as he reached a total of 5 goals and assists in the 2019/2020 season.
29. From the contents of the aforementioned decision 20-01039, the members of the Chamber
noted, in particular, that DRC on 10 December 2020 had rejected said request for bonuses
in the amount of EUR 12,500, as the Claimant did not submit ‘any proof pertaining to his
request for the payment of the bonus’.
30. On the other hand, from the Claimant’s statement of claim in the current matter at hand, the
members of the Chamber duly noted that the Claimant requested again to paid the bonus in
the amount of EUR 12,500, linked to goals and assists he made in the season 2019/2020.
31. In view of the aforementioned, the Dispute Resolution Chamber held that both legal actions
were based on the same employment contract and that both actions were aimed at
establishing whether or not the Claimant was entitled to a bonus in the amount of EUR
12,500 for the 2019/2020 season.
32. On account of the above, the Chamber unanimously determined that the object of the matter
in both disputes is identical and that, therefore, the condition of identity of the object of the
matter in dispute is also given.
33. Consequently, the Chamber concluded that, compared to the previous claim lodged by the
Claimant, decided by the Dispute Resolution Chamber in a decision with the reference
number 20-01039, the matter at hand not only concerns identical parties to the dispute but
also identical objects of the matter in dispute and has, therefore, to be considered as a res
iudicata.
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34. In light of the above, the Chamber unanimously decided that in accordance with the general
legal principle of res iudicata it is not in a position to deal again with the substance of the
present matter.
ii. Consequences
35. In conclusion, the members of the Chamber came to the conclusion that the claim if the
Claimant is inadmissible.
d. Costs
36. 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.
37. 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.
38. 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, Mitchell Glenn Donald, 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
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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