Labour Disputes
Texto da decisão
REF FPSD-12019
Decision of the
Dispute Resolution Chamber
passed on 11 January 2024
regarding an employment-related dispute concerning the player Oswaldo
Jose Henriquez Bocanegra
COMPOSITION:
Frans de Weger (the Netherlands), Chairperson
Michele Colucci (Italy), member
Dana Mohamed Al-Noaimi (Qatar), member
CLAIMANT:
Bnei Sakhnin Football Club, Israel
Represented by Boaz Sity
RESPONDENT 1:
Oswaldo Jose Henriquez Bocanegra, Colombia
RESPONDENT 2:
Club Deportivo Pasto, Colombia
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I. Facts of the case
Introduction
1.
The relevant legal or natural persons to the dispute are:
-
The Israeli club, Bnei Sakhnin Football Club (hereinafter: the Claimant, the Club or BSFC).
-
The Colombian player, Oswaldo Jose Henriquez Bocanegra (hereinafter: the
Respondent 1 or the Player).
-
The Colombian club, Club Deportivo Pasto (hereinafter: the Respondent 2, the New Club
or CDP).
-
The Indian club, Kerala Blasters FC (hereinafter: KBFC).
2.
The Respondent 1 and the Respondent 2 are hereinafter jointly referred to as
Respondents. It is to be noted that only the Claimant and the Respondents are parties to
these proceedings, as submitted by the Claimant.
3.
Below is a summary of the relevant facts and allegations based on the parties’ written
submissions and evidence presented. While the FIFA Dispute Resolution Chamber
(hereinafter: DRC or Chamber) has considered all the facts, evidence, allegations, and legal
arguments submitted by the parties in the present proceedings, it refers in its decision
only to the submissions and evidence it considers necessary to explain its reasoning.
The first dispute involving the Player and the Club
4.
On 14 June 2020, KBFC and the Player signed an employment contract valid as from 1
September 2020 until 31 May 2021 (hereinafter: the Indian Contract).
5.
On 23 July 2020, the player sent a termination notice to KBFC, and listed therein his
reasons for such termination.
6.
On 10 August 2020, the Claimant and the Respondent 1 signed an employment
agreement valid as from 1 August 2020 until 31 May 2021 (hereinafter: the Israeli
Contract).
7.
In accordance with clause 6 of the Israeli Contract, the Claimant inter alia undertook to
pay the Player a monthly remuneration of ILS 42,260 during the first season.
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8.
On 8 September 2020, KBFC lodged a claim against the Player and the Claimant, alleging
that the Player had breached the Indian Contract without just cause and inter alia seeking
compensation from BSFC and the Player (hereinafter: the Claim).
9.
On 28 April 2021, the FIFA Dispute Resolution Chamber (DRC) passed a decision on the
Claim (hereinafter: the DRC Decision), whereby inter alia the Player was found to have
breached the Indian Contract without just cause and ordered to pay compensation to
KBFC of USD 120,100 plus interest. The DRC Decision equally ruled BSFC jointly liable for
the payment of said compensation.
10. Both the Player and BSFC appealed the DRC Decision to the Court of Arbitration for Sport
(CAS).
11. By award dated 25 April 2023, CAS dismissed the appeals of the Player and BSFC on their
entirety and confirmed the DRC Decision (hereinafter: the CAS Award).
Enforcement of the CAS Award and the Settlement Agreement
12. BSFC failed to comply with the DRC Decision and the CAS Award and therefore disciplinary
proceedings were carried out by FIFA against BSFC, which resulted in a restriction on
registering players being applied on said club.
13. On 11 August 2023, KBFC and BSFC entered into a settlement agreement (hereinafter: the
Settlement Agreement), by means of which the latter undertook to pay the former the
amounts awarded per the DRC Decision and CAS Award in 3 quotas.
II. Proceedings before FIFA
14. On 2 October 2023, the Claimant filed the claim at hand against the Player and CDP before
FIFA. A brief summary of the claim is detailed in continuation.
a.
The claim of the Claimant
15. The Claimant states the Player breached the Israeli Contract by misrepresenting his
contractual status with KBFC, as the Player had informed KBFC that he did not want to
play in India due to the Covid-19 pandemic, which led to a contractual dispute and the
subsequent DRC Decision and the CAS Award.
16. On this note, the Claimant argued that while the DRC Decision and the CAS Award decided
that the Player and the Claimant are jointly and severally liable to pay KBFC USD 120,100
as compensation for breach of contract, the CAS Award also cleared BSFC from any fault
or negligence in signing the Player. Consequently, the Claimant submitted that because
of the Player’s breach and misrepresentation, BSFC had to pay compensation to KBFC per
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the settlement agreement, which was signed to lift the registration prohibition imposed
by FIFA. Therefore, the Claimant argued that the Player should compensate them for this
damage.
17. The Claimant also claimed that CDP, as the Player's new club, is jointly and severally liable
for the Player's breach of contract and should therefore share in the compensation due.
Based on these arguments, the Claimant asks for a total amount of USD 200,000 in
compensation from the Player and CDP.
18. The Claimant makes the following requests for relief:
“1) The Player materially breached the Contract with [BSFC] by breaching his representation
that he is a free agent with no contractual relationship with any other football clubs.
2) [CDP] is jointly and severally liable for the Player’s breach of his Contract being the
Player’s “new club” after the said breach.
3) Independently and without prejudice to the Player’s breach of the Contract with [BSFC],
the Player is also liable to compensate [BSFC] due to his joint liability for the compensation
paid to [KCFC].
4) [BSFC] is entitled for compensation in the amount of USD 200,000 for the Player’s breach
of the Contract.
For these reasons, Claimant requests the DRC to fully accept the claim in its entirety”.
b.
Referral to the Chairperson of the Dispute Resolution Chamber
19. On 31 October 2023, the FIFA general secretariat informed the Claimant that its claim was
affected by a preliminary procedural matter as defined in article 19 of the Procedural
Rules Governing the Football Tribunal (hereinafter: the Procedural Rules), and that the
matter would be referred to the Chairperson of the DRC for an expedited decision.
Contextually, the FIFA general secretariat informed the Claimant that if the Chairperson
of the DRC considered that the claim was not affected by any preliminary procedural
matters, he shall order the FIFA general secretariat to continue the procedure (cf. art. 19
par. 3 of the Procedural Rules).
20. On 13 November 2023, the Chairperson of the DRC instructed the FIFA general secretariat
to proceed with the matter at hand as he considered that the claim at hand was not
affected by any preliminary procedural matters, in that the threshold of obviousness has
not been met. Accordingly, the Claimant was informed of the foregoing and the
Respondents invited to file their respective positions as to the claim.
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c.
Position of the Respondents
21. The Player filed no response to the claim of the Club.
22. The New Club, for its part, timely filed its position following a relevant deadline extension.
In its submission, it argued as follows.
23. Firstly, the New Club stated that that it had no involvement in the dispute between the
Player and BSFC since it had no relationship with any of those parties at the time of the
dispute and did not accept any responsibility for any compensation that the Player might
owe to a third club. By the same token, the New Club submitted that they cannot be held
responsible for actions that occurred between BSFC, the Player and KBFC, as these actions
occurred before the player’s engagement with the New Club.
24. Secondly, the New Club argued that the Claimant is misinterpreting article 17 par. 2 of the
Regulations on the Status and Transfer of Players (hereinafter: RSTP) since this article
applies to cases where a contract is terminated without just cause, which is not the case
here as the Israeli Contract was terminated by mutual agreement of the Player and BSFC,
therefore no breach has occurred and no inducement consequently, which would trigger
the joint liability sought by the Claimant.
25. Thirdly, the New Club asserted that it has always acted in good faith and within the
corresponding legal precepts and the RSTP. It claimed that it has been unjustly involved
in the present proceedings and has had to bear a procedural burden that does not
correspond to them. In parallel, the New Club stated that the Claimant is acting in bad
faith and with a disregard for FIFA regulations, since the attempt to involve the New Club
in the matter at hand is unfounded and demonstrates a lack of understanding of the
RSTP.
26. In line with the foregoing, the New Club argued that the Claimant's claims constitute an
anti-juridical claim, as the New Club did not execute any action related to the facts stated
in the claim.as suc, the New Club is of the opinion that it lacks standing to be sued, as
there is a lack of connection between the New Club and the factual situation constituting
the basis of the present litigation.
27. Lastly, the New Club submitted that the claim is time-barred, as more than two years have
passed since the facts that gave rise to the dispute occurred in line with art. 23 of the
RSTP.
28. The request for relief of the New Club were as follows (freely translated to English):
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“FIRST: I oppose each and every one of the Claimant’s claims against Asociación Deportivo
Pasto, as it did not participate in the events that are the subject of the lawsuit, and therefore
no responsibility can be attributed to it.
SECOND: I request the disassociation of the Asociación Deportivo Pasto from the present
lawsuit for not having participated in the facts that gave rise to the present lawsuit.
For all the aforementioned reasons, as the joint and several liability that Deportivo Pasto is
being accused of is not applicable from any point of view to the specific case, we hereby
request to be disassociated from the process of reference, as the dispute that exists between
the parties does not concern us in any way.
THIRD: I request that the Claimant be ordered to pay the costs.”
III. Considerations of the Dispute Resolution Chamber
a. Competence, admissibility, and applicable legal framework
29. First of all, the DRC analysed whether he 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 October 2023
and submitted for a decision on 11 January 2024. Taking into account the wording of art.
34 of the March 2023 edition of the Procedural Rules, the aforementioned edition of the
Procedural Rules is applicable to the matter at hand.
30. Subsequently, 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 par. 1 lit. b) of May 2023
edition of the RSTP, the DRC would – in principle – be competent to deal with the matter
at stake, which concerns an employment-related dispute with an international dimension
between a Colombian player and an Israeli football club, with the involvement of a
Colombian club.
31. Notwithstanding the foregoing, the Chamber noted ex officio an issue regarding the
admissibility of the present claim with respect to its timeliness. The DRC remarked that
this analysis is irrespective of the previous assessment by the Chairperson regarding art.
19 of the Procedural Rules, because that assessment is limited to verify if the threshold
of obviousness set under the rule in question was met or not. The conclusion by the
Chairperson that the claim was not affected by a preliminary procedural matter does not
preclude the Chamber for examining the issue of admissibility, especially because art. 19
par. 2 of the Procedural Rules expressly determines that a proceeding shall be continued
in such scenario, as it was in the case at hand.
32. Having stated the foregoing, the DRC noted that after having carefully read the claim this
is a claim for damages lodged by BSFC against the Player and the New Club in connection
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with the alleged breach of the Israeli Contract that derives from the DRC Decision which
was issued in the previous employment-related dispute between the Player, the Claimant
and KBFC.
33. Based on the DRC Decision and the CAS Award, BSFC was deemed jointly liable to the
payment of compensation for the termination of the Indian Contract by the Player without
just cause (cf. art. 17, par. 2 of the FIFA RSTP). Despite the DRC Decision having been fully
confirmed by the CAS Award and being final and binding, BSFC claims to be entitled to an
amount exceeding the compensation awarded to KBFC in the DRC Decision, which
includes additional compensation for financial damages suffered with the alleged breach
of the Israeli Contract. The DRC remarked that none of these requests now filed in the
present proceedings was previously brought up before the DRC or CAS.
34. In this context, the Chamber wished to highlight that the January 2021 edition of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber, in force at the time of the DRC Decision, established as follows:
“9. Petitions and statements
[…]
3. Once the petition is complete, it shall be sent to the opposing party or the person affected
by the petition with a time limit for a statement or reply. If no statement or reply is received
before the time limit expires, a decision shall be taken upon the basis of the documents
already on file. Submissions received outside the time limit shall not be taken into account.
The parties shall present all the facts and legal arguments together with all the evidence
upon which they intend to rely, in the original language, and, if applicable, translated into
one of the official FIFA languages. In case the opposing party wishes to lodge a counterclaim, it shall submit within the same time limit applicable to the reply its petition containing
all the elements described in paragraph 1 above. There will only be a second exchange of
correspondence in exceptional cases.
4. The parties shall not be authorised to supplement or amend their requests or their
arguments, to produce new exhibits or to specify further evidence on which they intend to
rely, after notification of the closure of the investigation. The FIFA administration may at any
time request additional statements and/or documents.”
35. The same rule is found mutatis mutandis in the current (March 2023) edition of the
Procedural Rules, in art. 21 par. 1 and 3, respectively as follows:
“the FIFA general secretariat will notify the parties of the closure of the submission phase of
the procedure. After such notification, the parties may not supplement or amend their
submissions or requests for relief or produce new evidence”.
“if a party submits a new claim which is related to an existing case in which it is a respondent,
the new claim shall be joined with the existing case and treated as a counterclaim in the
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existing case. Where the party has already been notified of the existing case, the new claim
must have been submitted within the same time limit as that for the response to the claim
in the existing case in order to be considered”.
36. The abovementioned rules are therefore clear in the Chamber’s view: in a matter where
a party has already been summoned to the proceedings, any counterclaim (or parallel
claim) must be filed within the time limit granted for the reply, otherwise it will be deemed
late and the party in question will be precluded from submitting it at a later stage. That is
to say that unlike for claims, which may be re-submitted (and subject to a new analysis
afresh of their admissibility by the FIFA general secretariat), counterclaims must be filed
within the same time limit for the response (or any extension or additional time thereto),
under penalty of preclusion of the concerned party’s right to file it.
37. Given the above, since BSFC was properly invited to file its position (as it did) during the
employment-related dispute in the context of the Claim and failed to file any counterclaim
accordingly (be that in the same proceedings or by means of a parallel claim filed
independently), the Chamber deemed that the same cannot be now re-visited, even more
so given that the damages that BSFC alleges to have suffered arise from the same facts,
which had already materialized, but were not brought forward in the context of the Claim
and, apparently, also not in the appeal filed before CAS against the DRC Decision.
38. In addition, considering that BSFC filed this appeal and prompted CAS to exercise its de
novo powers regarding the DRC Decision – and in particular to determine the issue of the
responsibility for the breach of the Indian Contract – the truth is that in case the Claimant
wished to seek any further compensation from the Player, it should also have done it
before CAS, which it also failed to do.
39. Therefore, the Chamber established that BSFC failed not once but twice to claim /
counterclaim against the Player within the appropriate time limit and forum.
Consequently, the DRC decided that the Claimant’s plea cannot be now entertained by
the DRC, in that BSFC has waived its procedural right and is now precluded from
(belatedly) exercising it.
40. In the Chamber’s opinion, any different conclusion from the one above would allow
parties to file independent claims as they please, which contravenes not only the
principles of good procedural order and procedural economy, but would jeopardize due
process and, ultimately, legal certainty within the FIFA dispute resolution system. The
Chamber underscored that this line of reasoning has been confirmed by CAS (see, for
instance, CAS 2020/A/7455 Besiktas A.S. v. FIFA & Victor Ruiz Torre).
41. In continuation, the Chamber could not help to notice either that the crux of the matter
had already been decided upon by the DRC Decision and CAS Award as the basis of the
claim derives from the same facts and, as such, FIFA would no longer be allowed to deal
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with the claim at stake by virtue of the application of the legal principle of res judicata.
Accordingly, the Chamber deemed it appropriate to briefly recall 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.
42. 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 a decision had been passed by a competent deciding body – i.e.,
CAS via the CAS Award and that such decision has become final and binding.
43. Furthermore, the Chamber 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, the DRC recalled that the criterion of the identity of
the parties is given if the parties to the disputes are the same and that they have
participated in previous proceedings (CAS 2020/A/8404-8405 Golden Toys LLP v. JSC FC
Dynamo Moscow). Having said this, the Chamber noted that both the Claimant and the
Respondent 1 were the parties in the proceedings leading to the decision previously
rendered by the DRC as well as in the dispute at stake, and that the New Club has only
been named in the present proceedings as an accessory to the alleged breach of the
Israeli Contract on the basis of art. 17 par. 2 of the RSTP. Therefore, considering that the
parties to both disputes are the same and in light of the principle accessorium non ducit,
sed sequitur suum principale, the Chamber came to the conclusion that the condition of
the identity of parties is fulfilled.
44. The Chamber then turned its attention to the criterion of the object of the matter in
dispute. In this respect, he started by acknowledging that the identity of the object is
fulfilled if the basis of the claim and the relevant requests of the two claims are similar.
When comparing the claim previously lodged in front of the DRC – subsequently decided
and confirmed by CAS on appeal – and the one at hand, the DRC noted that both delve
into the issue of the liability for the breach of the Indian Contract and the consequences
thereto. Consequently, the Chamber held that both legal actions were based on the
Player’s (and the Claimant’s contribution) regarding the violation of the Indian Contract
and have their basis on the same facts. Thus, the Chamber concluded that the condition
of identity of the object of the matter in dispute is also fulfilled, even if the Claimant now
frames it as damages/tort claim arising out of the Israeli Contract and the alleged
misrepresentation of the Player.
45. For the sake of completeness, the Chamber referred to the jurisprudence of the Swiss
Federal Tribunal, according to which ”the res judicata effect extends to all the facts existing
at the time of the first decision, whether or not they were known to the parties, stated by them,
or considered as proof by the first [decision-making body]”.
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46. Because of the above, the Chamber concluded that both legal actions not only concern
identical parties to the dispute, but also identical objects and relief sought. The DRC
outlined in this sense that the core element of the claim now submitted by the Claimant
is an attempt to re-litigate its responsibility, and that of the Player, regarding the breach
of the Indian Contract. The Chamber underlined accordingly that the CAS Award has
already determined that both the Claimant and the Respondent 1 are jointly and severally
liable for said breach, and the DRC cannot now re-examine such liability (and the
corresponding consequences).
47. Therefore, as a competent deciding body has already dealt with the exact same matter,
having passed 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 substance of the dispute.
48. Given the above considerations, the Chamber confirmed that from every angle, the claim
of the Claimant is inadmissible. This suffices that other issues such as the prescription
and lack of standing raised by the New Club can remain open.
49. Lastly, 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. Furthermore, 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.
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Bnei Sakhnin Football Club, 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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