Labour Disputes
Texto da decisão
REF FPSD-5317
Decision of the
Dispute Resolution Chamber
passed on 23 June 2022
regarding an employment-related dispute concerning the player
Stanley Ronny Willem Elbers
BY:
Clifford J. Hendel (USA & France)
Gonzalo de Medinilla (Spain)
Mario Flores Chemor (Mexico)
CLAIMANT:
Stanley Ronny Willem Elbers, Netherlands
Represented by Ms Suzanne Bakker
RESPONDENT:
AFC Hermannstadt, Romania
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REF FPSD-5317
I. Facts of the case
1.
On 10 September 2020, the Dutch player Stanley Ronny Willem Elbers (hereinafter
the Claimant or the player) and the Romanian club AFC Hermannstadt (hereinafter
the Respondent or the club) concluded an employment agreement (hereinafter the
Employment Agreement) valid as from 10 September 2020 until 30 June 2022.
2.
In Clause IV of the Employment Agreement, Claimant and Respondent (jointly referred
to as the Parties) agreed upon, inter alia, the following payments:
−
−
−
3.
EUR 8,500 as monthly salary, payable “until the 25th of the month following the
month for which the payment is made”, whereas “the salary of September 2020
will be paid on 20.09.2020”;
EUR 10,000 as a sign-on fee payable on 15 September 2020;
EUR 300 as monthly “equivalent of house rent”.
In Clause XII of the Employment Agreement, the Parties agreed upon the following
jurisdiction clause:
“XII. Dispute settlement
The Parties shall, in good faith, make every effort to solve amicably any dispute,
controversy or misunderstanding arising out of or in connection with this Contract.
Disputes concerning the conclusion, execution, amendment, suspension or termination of
this contract shall be settled by the jurisdictional commissions of the FIFA or by the courts
materially and territorially competent, when the above-mentioned jurisdictional
commissions do not have jurisdiction to settle the dispute. Specifically, any disputes arising
from the performance of this contract shall be settled by the National Dispute Resolution
Chamber within the FRF, its decisions may be appealed to the Appeal Commission within
the FRF.”
4.
On 28 January 2021 and 1 March 2021, the Claimant sent a default notice to the club,
requesting certain outstanding amounts.
5.
On 30 September 2021, insolvency proceedings were open against the Respondent in
Romania.
6.
On 17 December 2021, the Claimant was notified of the termination of the
employment relationship by a decision of the Sibiu Tribunal of 30 September 2021
related to the insolvency proceedings of the club:
“Mr. Stanley Ronny Willem professional footballer
Subscribed to Ideal lnsolv SPRL, as judicial administrator of the debtor Association Football
Club Hermannstadt, according to the Conclusion of the syndic judge no. 354 of 30.09.2021
pronounced by the Sibiu Tribunal, in file no. 2326/85/2021, pursuant to art. 123 al. 1 of
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Law no. 85/2014 - on insolvency prevention and insolvency proceedings and based on the
report of the association's management in order to maximize the associations assets and
reduce expenses whose value clearly exceeds the value of benefits, I hereby inform you:
NOTIFICATION
Art. 1. Starting with the date of receipt of this notification, your sports activity contract
no. 781 of 10.09.2020 is considered denounced.
Art.2. An appeal may be lodged against this notification with the Sibiu Tribunal
according to art. 41 al. 4 of law 85/2014.”
7.
On 28 December 2021, the Claimant requested the amount of EUR 45,500 to be listed
on the list of creditors within the insolvency proceedings.
8.
On the same day, the Claimant requested a “cancellation” of the notification dated
17 December 2021 in front of the Romanian civil tribunal, Sibiu Court of Law.
9.
On 15 February 2022, the Claimant sent a letter to the Respondent, alleging that the
club did not have just cause to terminate the Employment Agreement and that,
consequently, it should pay a compensation.
10. On 17 March 2022, the Claimant was notified of the following regarding the
“cancellation” of the notification dated 17 December 2021:
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11. On 18 March 2022, the Claimant was notified of the following regarding the
outstanding amounts:
II. Proceedings before FIFA
12. On 2 March 2022, 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
13. The requests for relief of the Claimant, were the following:
“EUR 38,387.10 net ("salary") and EUR 1,654.83 net ("housing allowance") as outstanding
remuneration, plus 5% interest p.a. as follows:
− 5% interest p.a. on the amount of EUR 300 net (Housing July 2021) as from
26 August 2021 until the date of effective payment;
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REF FPSD-5317
− 5% interest p.a. on the amount of EUR 8,500 (Salary August 2021) and
EUR 300 net (Housing August 2021) as from 26 September 2021 until the date of
effective payment;
− 5% interest p.a. on the amount of EUR 8,500 (Salary September 2021) and
EUR 300 net (Housing September 2021) as from 26 October 2021 until the date
of effective payment;
− 5% interest p.a. on the amount of EUR 8,500 (Salary October 2021) and EUR 300
net (Housing October 2021) as from 26 November 2021 until the date of effective
payment;
− 5% interest p.a. on the amount of EUR 8,500 {Salary November 2021) and
EUR 300 net (Housing November 2021) as from 26 December 2021 until the date
of effective payment;
− 5% interest p.a. on the amount of EUR 4,387.10 (Salary December 2021) and EUR
154.83 net (Housing December 2021) as from 26 January 2022 until the date of
effective payment;
“EUR 55,112.90 net ("salary") and EUR 1,945.17 net ("housing allowance") as
compensation for breach of contract, plus 5% interest p.a. as from 17 December 2021
until the date of effective payment.” (emphasis added).
14. The Claimant alleged that the “Club unlawfully failed to pay the Player four monthly
salaries from August 2021 to December 2021 and nine housing allowances as agreed in
the Contract and thus has an undisputed debt towards the Player” and that, in line with
the legal principle pacta sunt servanda, the Respondent is obliged to pay the
outstanding amounts as well as the compensation for breach of contract.
b. Position of the Respondent
15. The Respondent rejected the claim of the Claimant as it alleged that the claim is
inadmissible:
“a. on the one hand, the inadmissibility results from FIFA's lack of competence to analyze
disputes in connection with the Sports Activity Contract no. 781/10.09.2020, the parties
agreeing that these disputes be adjudicated by the jurisdictional commissions of the
Romanian Football Federation. In this regard, we have shown that these commissions meet
all FIFA criteria in terms of independence and impartiality;
b. on the other hand, the inadmissibility must be established by virtue of the fact that all
the requests of the Player that are the subject of this Claim have been addressed to the
national ordinary courts. Since the player has chosen the internal solution path, he must
follow it to the end, being stopped to choose another procedural path in an excess of forum
shopping.”
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
16. 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 02 March 2022
and submitted for decision on 23 June 2022. Taking into account the wording of art. 34
of the June 2022 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.
17. 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 2021 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 Dutch player and a Romanian club.
18. Nonetheless, the Chamber then turned its attention to the arguments of the Respondent
that FIFA is not the competent forum to deal with the dispute.
19. In this respect, the Chamber referred to Clause XII of the Employment Agreement,
according to which: “Disputes concerning the conclusion, execution, amendment,
suspension or termination of this contract shall be settled by the jurisdictional
commissions of the FIFA or by the courts materially and territorially competent, when the
above-mentioned jurisdictional commissions do not have jurisdiction to settle the dispute.
Specifically, any disputes arising from the performance of this contract shall be settled by
the National Dispute Resolution Chamber within the FRF, its decisions may be appealed to
the Appeal Commission within the FRF.”
20. The Chamber, after analysing the wording of the jurisdiction clause, concluded that
such clause did not clearly and exclusively establish the competence of the NDRC of
Romania, in accordance with art. 22 par. 1 lit. b) of the aforementioned Regulations.
21. As a consequence, the Chamber was of the opinion that the first pre-requisite for
establishing the competence of an NDRC was not met, and therefore, without the
need to enter the analysis of any further requirement, it established that the
Respondent’s objection to the competence of FIFA in view of the above-mentioned
clause has to be rejected.
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REF FPSD-5317
22. At this point the Chamber noted that the Respondent further objected to the
admissibility of the present claim as to the outstanding payments, alleging that an
identical dispute between the Parties had already been decided upon by the judicial
liquidator of the respective Romanian court in the context of the insolvency
proceedings on 18 March 2022 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.
23. In this respect, the DRC recalled that the res judicata principle precludes a subsequent
decision about the same object, among the same parties, relying on the same facts
and based on the same cause of action. Accordingly, if a matter (with res judicata) is
brought again before the deciding authority, the latter must dismiss the matter.
24. Having said that, the Chamber went on to analyse the evidence on file regarding the
previous decision allegedly passed in an identical matter. In this respect, the Chamber
observed that indeed the outstanding amounts have been validly considered within
the respective insolvency proceedings and shall be paid in instalments to the
according to the approved reorganization plan (see I./ par. 11.).
25. 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. 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 claim concerning the
outstanding payments. Thus, this part of the claim is inadmissible.
26. Finally, the DRC noted that immediately after the termination of the Employment
Agreement, the Claimant requested a “cancellation” of the notification dated
17 December 2021 in front of the Romanian civil tribunal, which passed a decision on
its competence on 17 March 2022, referring the dispute to a different section of the
respective civil court (see I./ par. 10.).
27. At this point, the DRC deemed it important to underline that in the spirit of the
applicable regulations, a player who actively decides to bring forward a dispute before
a local deciding body, rather than making use of the alternative dispute resolution
process proposed within the legal framework of FIFA, must demonstrate consistency
in relation to the choice of the course of action.
28. In this respect, based on the evidence on file, the DRC noted that the Claimant
challenged the termination of the contract in front of the civil courts in Romania (i.e.
trying to cancel the said termination), whereas, at the same time, he seeks
compensation resulting from the termination in front of FIFA.
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REF FPSD-5317
29. In this respect, the DRC held that it cannot condone the attitude of a party who at first
decides to submit a labour dispute to a competent, specific, local deciding body, and
subsequently decides to submit this very same dispute (between the same parties,
based on the same legal framework) to FIFA; the same is to be noted if the party
submits a claim before FIFA and thereafter seeks to lodge the same claim in front of
different national bodies. Finally, the Chamber emphasised that a party who chooses
a certain course of legal remedy may not then decide to change the legal forum of the
dispute, as this would jeopardise the credibility of the sporting dispute resolution
system.
30. In this respect, the Chamber referred to the principle of electa una via, non datur
recursus ad alteram and understood that in the present case the Claimant elaborated
and developed an inconsistent procedural strategy, known as Forum Shopping, by
lodging several claims before different competent deciding bodies with a view to
obtain the most advantageous possible outcome. Consequently, the Chamber
concluded that the Claimant’s claim concerning the compensation for the alleged
breach of contract in front of FIFA is equally inadmissible.
b. Costs
31. 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.
32. 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.
33. 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, Stanley Ronny Willem Elbers, 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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