DRC - Preliminary Decisions
Texto da decisão
REF FPSD-4283
Decision of the
Dispute Resolution Chamber
passed on 28 March 2022
regarding an employment-related dispute concerning the player Alejandro
Sebastian Romero Gamarra
BY:
Frans de Weger (the Netherlands), Chairperson
CLAIMANT:
New York Red Bulls, USA
Represented by Centrefield LLP
RESPONDENT 1:
Alejandro Sebastian Romero Gamarra, Argentina
RESPONDENT 2:
Al-Taawoun FC, Saudi Arabia
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I.
Facts of the case
1.
On, 16 February 2018, the Major League Soccer (”MLS”) and the Argentinian player
Alejandro Sebastian Romero Gamarra (hereinafter: the player or First Respondent ) concluded
an employment contract (hereinafter: the contract) valid from 9 February 2018 until 31
December 2020.
2.
After signing with MLS, the player was assigned to the New York Red Bulls (hereinafter: the
club or Claimant)
3.
Art. 9 (e) of the contract stipulates the following:
“The Player and MLS hereby expressly waive all rights to bring for resolution on the merits any
claim, action, dispute or grievance to any FIFA body or tribunal, including any right(s) either
may have pursuant to the FIFA Regulations Governing the Status and Transfer of Football
Players (including without limitation the Applications Regulations referenced therein and the
dispute resolution, disciplinary and arbitration system set forth in Chapter XIV. The Player and
MLS agreed that once a judgment has been rendered pursuant to the Paragraph 9, either
party may immediately take such judgment to the relevant FIFA body or tribunal to be entered
and enforced.”
4.
Art 2 (a) of the schedule to the contract referred to the following:
“Option through 2021. We may, by giving you written notice on or before December 1, 2020,
extend your employment with us for an additional twelve months (i.e. until December 31,
2022) for a base salary of Ninety-One Thousand Six Hundred Sixty- Six And 66/100 Dollars
(U.S. $91,666.66) per month, gross of taxes”
5.
According to the club, after the initial term of the contract it had the right to exercise its
option (hereinafter: the option) to extend the contract with the player for a further 12
months, until 31 December 2021. Accordingly, the club exercised its option in February 2020,
which was accepted by the player at the time.
6.
Despite the aforesaid, the player proceeded to sign an employment contract with the club AlTaawoun (hereinafter: the Second Respondent) in January 2021. In this regard the club stated
that the Second Respondent induced the player’s breach of his contract with the club.
7.
The club therefore referred “the issue of whether the club’s option had been validly exercised
to arbitration in accordance with the terms of the Player Contract and the collective
bargaining agreement agreed between MLS and the MLS Players’ Association (‘MLSPA’).”
8.
This resulted in a final and binding decision, confirming the following:
“AWARD
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Alejandro Romero Gamarra (a/k/a “Kaku”) breached his Player Agreement with Major
League Soccer as set forth in the above Findings. The Player is ordered to not play, attempt
to play or threaten to play soccer for any team other than a Team in Major League Soccer, as
provided in Paragraph 9(c)(vi) of his Player Agreement.”
9.
The club argued that the player failed to comply with the Arbitrator’s Award and continued
to play for the Second Respondent. As such, the player (induced by the Second Respondent)
has therefore unilaterally terminated the contract without just cause.
II. Proceedings before FIFA
10. On 12 November 2021, the club filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a.
Position of the club and additional comments
11. According to the club, it has suffered significant losses and therefore the player is liable to
pay to the club compensation, arising from his unlawful termination of the contract. What is
more, the club is of the opinion that the player’s new club should be held jointly and severally
liable for such compensation, pursuant to article 17 par. 2 of the Regulations.
12. Additionally, the club requested that sporting sanctions be imposed on the player and his
new club, in accordance with the provisions of article 17 paras. 3 and 4 of the Regulations.
13. On 1 December 2021, the FIFA administration sent a correspondence to the club, informing
it that if a dispute is already been decided upon by another deciding body, FIFA would not be
competent. In this context, FIFA referred to the arbitral award issued on 2 April 2021.
14. In the said correspondence it was indicated to the club that - in accordance with the general
principle of res judicata - a deciding body of FIFA is not in a position to deal with the substance
and/or the consequences of a matter already decided upon by another deciding authority.
15. On 16 December 2021, in reply to FIFA’s letter, the club sent a further correspondence
mentioning, inter alia, the following:
(a) No ‘res judicata’ – different issues under consideration
The issue determined by the arbitrator was narrowly limited and he solely decided “whether
[the player] remained under contract with MLS beyond December 31, 2020, which depends
on whether MLS effectively exercised its option to extend his contract through December 31,
2021. The dispute between the parties at that time was, therefore, whether MLS had
effectively exercised an option to extend the Playing Contract. This is a separate and distinct
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issue as to whether the player thereafter unilaterally terminated the Playing Contract without
just cause, and whether the new club induced him to do so.”
According to the Claimant the arbitrator – “decided – with res judicata effect – that a binding
contract existed, but he did not decide on issues such as unilateral termination without just
cause or the consequences that follow from such termination.”
(b) Claimant has not brought any claim against Second Respondent outside of
FIFA
-
The Claimant indicated that the new club has “not yet been called to account in any fora for
its inducement of the player to ignore the Arbitrator’s Award and unilaterally terminate the
Playing Contract without just cause.
-
In this regard the Claimant mentioned that,” if the new club induced the player to terminate
the Playing Contract without just cause, FIFA must be able to make Second Respondent
answer for its wrongful actions. If FIFA were to hold otherwise, it would effectively permit
‘foreign’ clubs to act with impunity where a club and a player have sought to have any aspect
of their dispute determined at a national level – and this would represent a ‘lacuna’ in FIFA’s
international dispute resolution system that would undermine FIFA’s rules and its powers.”
(c) FIFA already deemed itself ‘competent’ in this matter and took steps to allow the
first Respondent to register for Second Respondent
“The PSC already confirmed FIFA’s competence in respect of this matter. As noted in the
Statement of Claim, in accordance with Article 15(6) of the FIFA Disciplinary Code, and
following the issuance of the Arbitrator’s Award, Claimant requested the assistance of the
SAFF to ensure that First Respondent respected the Impartial Arbitrator’s order. Such request,
however, was completely ignored by the SAFF. Instead, the SAFF made a request of the PSC
to provisionally register First Respondent for Second Respondent, despite the USSF having
rejected the ITC request (which it did on account of the fact that the employment relationship
between Claimant and First Respondent had not expired). The PSC granted the SAFF’s
request. As such, despite Claimant following the dispute resolution process provided under
the terms of the Playing Contract and the CBA, the PSC nevertheless intervened to allow First
Respondent’s provisional registration with Second Respondent.
The issuance of the ITC and the fact that the new club is affiliated to a different member
association creates the international dimension. Under such circumstances, FIFA becomes
competent to deal with the relevant contractual dispute, regardless of whether there is a
recognised independent arbitration tribunal in the country concerned.”
16. In conclusion, the club requested that the procedure with the Dispute Resolution Chamber
be continued, however should FIFA maintain the position that it is not competent to hear this
case, “we respectfully request you to issue an appealable decision.”
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17. The requests for relief of the club, were the following:
(a) The claim is admissible
(b) The player unilaterally terminated the c ontract without just cause by not complying with
the Arbitrator’s Award and failing to remedy his breach; and must pay compensation to
the Claimant based on its primary case in the sum of USD 4,347,730.06 or USD3,845,544.02;
or
Alternatively, the player must pay compensation to the Claimant based on its alternative case
in the sum of USD 6,840,369.06 or USD5,288,210.12; or
Alternatively, the player must pay to the Claimant such other compensation amount that the
DRC deems appropriate; and
Interest is payable on the compensation award at a rate of 9% per annum or,
alternatively, at a rate of 5% per annum from 1 January 2021 (i.e. the date that the First
Respondent’s breach); and
(c) The new club is jointly and severally liable to pay the compensation awarded to the Claimant;
(d) Sporting sanctions are to be imposed on the player, namely a six-month restriction on playing
in official matches on account of the aggravating circumstances of the case, or alternatively
a four-month restriction on playing in official matches;
(e) Sporting sanctions are to be imposed on the new club, namely a ban on registering any new
players, either nationally or internationally, for two entire and consecutive registration
periods;
(f)
In the event that any compensation (plus interest) due in accordance with this paragraph
146 is not paid to the Claimant within 45 days as from the notification by the Claimant of
the relevant bank details to the players: (i) in respect of the First Respondent, he shall not be
permitted to pay in any official matches until payment has been made in full or the expiry
of six months, whichever the earlier; and (ii) in respect of the Second Respondent, it shall be
banned from registering any new players, either nationally or internationally, up until the due
amount is paid or for the duration of three entire and consecutive registration periods,
whichever the earlier.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
18. First of all, the Chairperson of the Dispute Resolution Chamber (hereinafter also referred to
as Chairperson) analysed whether he was competent to deal with the case at hand.
19. In this respect, he took note that the present matter was presented to FIFA on 12 November
2021 and submitted for decision on 28 March 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.
20. At the same time, the Chairperson confirmed that, in accordance with art. 19 par. 1 and 2 of
the Procedural Rules, he shall decide, in an expedited manner, whether the case at stake is
affected by any preliminary procedural matter (i.e. if the Football Tribunal obviously does not
have jurisdiction or if the claim is time-barred). 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).
21. 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 lit. b) of the Regulations
on the Status and Transfer of Players (March edition) (hereinafter: the Regulations), the
Dispute Resolution Chamber is competent to deal with disputes between clubs and players
with an international dimension.
22. Notwithstanding the aforesaid, the Chairperson observed that the club, referred the issue,
whether its option as detailed in the contract had been validly exercised, to arbitration
conducted between Major League Soccer and Major League Soccer Players Association on
behalf of the player, Alejandro Romero Gamarra (a/k/a “Kaku”) with the impartial arbitrator,
SHYAM DAS, on 3 and 12 March 2021.
23. In this regard, the Chairperson noted that a final and binding decision was issued on 2 April
2021 by the impartial arbitrator, SHYAM DAS in accordance with the arbitration invoked by
Major League Soccer as per the expedited arbitration provisions provided for in paragraph
9(c) of the contract. The said final and binding decision determined that the player “breached
his Player Agreement with MLS and is ordered to not play, attempt to play or threaten to play
soccer for any team other than a Team in Major League Soccer, as provided in Paragraph
9(c)(vi) of his Player Agreement.”
24. In this context, the Chairperson observed that in the national arbitration proceedings followed
and in the procedure before FIFA’s deciding bodies, an identity can be seen both in the object
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and in the cause of request. The Chairperson determined that, since there was already a
resolution issued by an impartial arbitrator, the Chairperson cannot rule on a new decision.
25. The Chairperson remarked that in accordance with the general principle of res judicata, a
deciding body of FIFA is not in a position to deal with the substance and/or the consequences
of a matter already decided upon by another deciding authority and to this end emphasised
that a res judicata situation could only be deemed to have occurred if the national body that
had previously ruled on a case met the minimum procedural requirements for hearing that
case.
26. Moreover, the Chairperson remarked that a club who 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.
27. In this respect the Chairperson mentioned that a party who at first decides to submit a dispute
to a competent, specific, local deciding body, and subsequently decides to submit this very
same dispute to FIFA; should not be able to game the system by having multiple fora hear
the same argument in the hope that one of them will hand down the judgment it wants. For
example, a party should not be allowed to ask a national body to confirm that a contract has
been breached without just cause, and then, having obtained a favourable decision at
national level, ask the DRC to set the compensation payable in the case. The Chairperson
referred to the principle of electa una via, non datur recursus ad alteram and mentioned that
in the present case the club seem to have elaborated and developed an inconsistent
procedural strategy, known as Forum Shopping.
28. Furthermore, the Chairperson remarked that in accordance with article 9 (e) of the contract,
there is a clear waiver by the parties to bring for resolution on the merits any claim, action,
dispute or grievance before the Football Tribunal.
29. Considering all of the above, the Chairperson decided that the club’s claim is to be considered
inadmissible.
30. 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 parties.
31. 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.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, New York Red Bulls, 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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