DRC - Preliminary Decisions
Texto da decisão
REF. FPSD-13629
Decision of the
Dispute Resolution Chamber
passed on 22 July 2024
regarding an employment-related dispute concerning the player Abdi Hassan
Banda
BY:
Frans de Weger, the Netherlands
CLAIMANT:
Chippa United FC, South Africa
Represented by Kabelo Humphrey Mashigo
RESPONDENT:
Abdi Hassan Banda, Tanzania
pg. 2
REF. FPSD-13629
I. Facts of the case
Contractual basis
1.
On 1 July 2022, the South African club, Chippa United FC (hereinafter: Club or Claimant)
and the Tanzanian player Abdi Hassan Banda (hereinafter: Player or Respondent) entered
into an employment contract valid from 1 July 2022 until 30 June 2024 (hereinafter:
Contract).
2.
According to the Contract, the Club undertook to pay the Player the following
remuneration:
“FOR THE CONTRACT PERIOD: 1ST JULY 2022 TO 30 JUNE 2023
The Club shall pay the [Player], monthly in arrears, on the last day of every month, a
gross amount of R50 000.00 (Fifty Thousand South African Rand);
The Club shall pay the [Player] an accommodation allowance, monthly in arrears, on the
last day of every month, a gross amount of R6000.00 (Six Thousand South African Rand);
The Club shall provide the [Player] with Four return flight tickets from Tanzania to Port
Elizabeth, South Africa during the season.
FOR THE CONTRACT PERIOD: 1ST JULY 2023 TO 30 JUNE 2024
The Club shall pay the [Player], monthly in arrears, on the last day of every month, a
gross amount of R55 000.00 (Fifty-Five Thousand South African Rand);
The Club shall pay the [Player] an accommodation allowance, monthly in arrears, on the
last day of every month, a gross amount of R6000.00 (Six Thousand South African Rand);
The Club shall provide the [Player] with Four return flight tickets from Tanzania to Port
Elizabeth, South Africa during the season”.
3.
Clause 18.2 of the Contract provides, inter alia, as follows: “Accordingly, in the event that the
club terminates this agreement, prior to the termination date, the club will pay the [Player]
compensation equal to 1 months’ salary which the [Player] hereby accepts in full and final
settlement of any and all claims of whatsoever nature he might otherwise have had against the
club consequent upon the termination of his employment and the club will provide the [Player]
with a clearance certificate immediately upon request.”
Previous proceedings before FIFA
4.
On 26 June 2023, the Player filed a claim against the Club before the FIFA Dispute
Resolution Chamber (hereinafter: DRC), which was registered under ref. no. FPSD-10685
(hereinafter: Previous Claim). In this context, the Player requested that the Club be
ordered to pay him outstanding remuneration and compensation for the premature
termination of the Contract without just cause.
pg. 3
REF. FPSD-13629
5.
On 16 August 2023, the DRC issued its decision in the above case, the grounds of which
were communicated to the parties on 6 October 2023 (hereinafter: DRC Decision). The
Previous Claim was partially upheld, and the Club was ordered to pay the Player (i) ZAR
11,939.33 as an outstanding amount; and (ii) ZAR 788,000 as compensation for breach of
contract; plus applicable interest.
6.
On or about 25 January 2024, the Club made payment to the Player in respect of the DRC
Decision.
II. Current proceedings before FIFA
7.
On 7 February 2024, the Club lodged the present claim against the Player in front of FIFA.
8.
Accordingly, the Club recalled the contractual arrangements between the parties and the
background to the DRC Decision. In this regard, the Club argued that “it is an undisputed
fact that the Respondent is currently, for the 2023/2024 Season for which he has been awarded
and paid damages, employed by the South African Based football club Richards Bay F.C. The
Respondent had a duty to disclose the terms of the employment relationship but has to date
failed, refused and/or neglected to do so.”
9.
In addition, the Claimant indicated that “a party cannot be paid damages for a period in which
he has effectively mitigated his damages. The Respondent has signed an employment contract
with Richards Bay F.C for a period which corresponds with the time which he has been paid
damages. Effectively he has been unjustly enriched.”
10. As a result, the Club requested a refund of some of the compensation previously paid to
the Player. It submitted the followingremedy, quoted verbatim:
-
“Payment of the amount of ZAR 823 922.68 (eight hundred and twenty-three thousand
nine hundred and twenty-two Randa and sixty-eight cents);
-
Payment of positive interest thereon at the rate of 5% (five per cent) per annum calculated
from the date the amount became due and payable to the date of actual payment; and
-
Any other further and/or alternative relief.”
11. On 15 July 2024, the FIFA general secretariat (i) acknowledged receipt of the Club’s
statement of claim together with its supporting documents; and (ii) informed the Club that
its claim raised a preliminary procedural matter that should be analysed by the DRC ex
officio.
pg. 4
REF. FPSD-13629
III. Considerations of the Dispute Resolution Chamber
Jurisdiction
12. As a starting point, the Chairperson of the DRC (hereinafter: Chairperson) analysed
whether he was competent to handle the case at hand.
13. In this respect, he took note that the present matter was presented to FIFA on 7 February
2024 and submitted for a preliminary decision on 15 July 2023. Taking into account the
wording of art. 34 of the March 2023 edition of the Procedural Rules Governing the Football
Tribunal (hereinafter: Procedural Rules), the aforementioned edition of the Procedural
Rules is applicable to the matter at hand.
14. The Chairperson confirmed that, in accordance with art. 19 of the Procedural Rules, he is
competent to decide in an expedited manner whether this case is affected by any
preliminary procedural matter. Likewise, the Chairperson highlighted that if the claim is
not affected by any such preliminary procedural matter, the FIFA general secretariat would
be instructed to continue the proceedings (cf., art. 19 par. 3 of the Procedural Rules).
Admissibility
15. The Chairperson then turned his attention to the Club’s claim and acknowledged that it
concerned the reimbursement of sums paid on the basis of the DRC Decision. In particular,
the Chairperson noted that the Club contended that the compensation for breach of
contract had been miscalculated due to the fact that the Player had subsequently entered
into a new employment contract with Richards Bay F.C., which should have been taken into
account for mitigation purposes.
16. Having established the above, the Chairperson confirmed that the Club’s claim raises a
preliminary procedural matter that shall be analysed ex officio.
17. The Chairperson recalled that, based on the principle of res judicata, a decision-making
body is not in a position to deal with the substance of a case if another – competent –
deciding-making body (or itself) has already dealt with the same matter issuing a final and
binding decision.
18. The cited principle of res judicata ensures that once 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.
pg. 5
REF. FPSD-13629
19. With this in mind, the Chairperson proceeded to analyse the evidence on file concerning
the previous dispute between the parties. The Chairperson focused on the DRC Decision,
which was final and binding, and made the following remarks in this respect:
•
both the Player and the Club were the parties to the proceedings leading to the DRC
Decision as well as to the dispute at hand. Consequently, the condition of the
identity of parties was met;
•
both the Previous Claim and the one at hand discuss, inter alia, the premature
termination of the Contract and the consequences arising thereof. Thus, they have
the same object; and
•
both legal actions materially addressed the same request for relief i.e., the amount
of compensation for breach of contract that should be paid by the Club to the
Player. Therefore, the condition of identity of the cause was also met.
20. Put differently, the Chairperson was of the opinion that the present claim intends to
rediscuss and/or review the amount of compensation for breach of contract that awarded
to the Player in the DRC Decision. The causa petendi of this claim was the mitigation in light
of the Player’s new employment relationship with Richards Bay F.C, and the object of both
claims is identical: the amount of compensation that the Player is entitled to receive from
the Club due to its breach of contract.
21. Consequently, the Chairperson confirmed that in view of the fact that the DRC had already
dealt with the exact same matter and issued a final and binding decision, the present case
was affected by res judicata, and the DRC was not in a position to re-examine the merits of
the dispute.
22. Therefore, the Chairperson decided that the claim at hand was inadmissible.
23. 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 Club.
pg. 6
REF. FPSD-13629
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Chippa United FC, is inadmissible.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 7
REF. FPSD-13629
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 Governing the Football
Tribunal).
CONTACT INFORMATION
Fédération Internationale de Football Association
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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