Labour Disputes
Texto da decisão
REF. FPSD-12255
Decision of the
Dispute Resolution Chamber
passed on 11 January 2024
regarding an employment-related dispute concerning
the player Daouda Karamoko Bamba
COMPOSITION:
Frans DE WEGER (The Netherlands), Chairperson
Dana MOHAMED AL-NOAIMI (Qatar), member
Michele COLUCCI (Italy), member
CLAIMANT:
Daouda Karamoko Bamba, Cote d’Ivoire
Represented by Ismet Bumin
RESPONDENT:
Altay SK, Türkiye
pg. 2
REF. FPSD-12255
I. Facts of the case
1. On 27 July 2021, the Ivorian player Daouda Karamoko Bamba (hereinafter: the Claimant or the
Player) and the Turkish club Altay SK (hereinafter: the Respondent or the Club) concluded the
employment contract valid until 31 May 2023 (hereinafter: the Contract).
2. Clause 3 of the Contract reads as follows:
“For the 2021/2022 season:
50.000,-EUR net will be paid in cash at the signature of the official contract.
50.000,-EUR net will be paid on 15 OCTOBER 2021
50.000,-EUR net will be paid on 15 JANUARY 2022
200.000,-EUR net will be paid equally as 20.000,-EUR in 10 months on the following dates:
- 20.000,- EUR on 31.08.2021,
- 20.000,- EUR on 30.09.2021,
- 20.000,- EUR on 31.10.2021,
- 20.000,- EUR on 30.11.2021,
- 20.000,- EUR on 31.12.2021,
- 20.000,- EUR on 31.01.2022,
- 20.000,- EUR on 28.02.2022,
- 20.000,- EUR on 31.03.2022,
- 20.000,- EUR on 30.04.2022,
- 20.000,- EUR on 31.05.2022,
Bonus payment of 50,000 euros will be paid to the player at the end of the football season, provided
that the player plays minimum 30 minutes in each of the 20 official Super League matches in the
2021-2022 football season at the end of the football season.
For the 2022/2023 season:
50.000,-EUR net will be paid on 15 OCTOBER 2022.
50.000,-EUR net will be paid on 15 DECEMBER 2022
50.000,-EUR net will be paid on 20 FEBRUARY 2023
250.000,-EUR net will be paid equally as 25.000,-EUR in 10 months on the following dates;
- 25.000,- EUR on 31.08.2022,
- 25.000,- EUR on 30.09.2022,
- 25.000,- EUR on 31.10.2022,
- 25.000,- EUR on 30.11.2022,
- 25.000,- EUR on 31.12.2022,
- 25.000,- EUR on 31.01.2023,
- 25.000,- EUR on 28.02.2023,
- 25.000,- EUR on 31.03.2023,
- 25.000,-EUR on 30.04.2023,
- 25.000,- EUR on 31.05.2023,
(…)
ALTAY and the player has a mutual right to prolong the contract for the season 2023-2024. This
pg. 3
REF. FPSD-12255
has to be done by either the player or the club with written notification to the Turkish Football
Federation within 30 days before the end of the 2022/2023 football season. If the option is used
and the contract covers the 2023-2024 season, the financial conditions are as follows;
For the 2023/2024 season:
50.000,-EUR net will be paid on 15 OCTOBER 2023.
50.000,-EUR net will be paid on 15 DECEMBER 2023
50.000,-EUR net will be paid on 20 FEBRUARY 2024
50.000,-EUR net will be paid on 20 April 2024
250.000,-EUR net will be paid equally as 25.000,-EUR in 10 months on the following dates;
- 25.000,- EUR on 31.08.2023,
- 25.000,-EUR on 30.09.2023
- 25.000,- EUR on 31.10.2023
- 25.000,- EUR on 30.11.2023,
- 25.000,- EUR on 31.12.2023,
- 25.000,- EUR on 31.01.2024,
- 25.000,- EUR on 28.02.2024,
- 25.000,- EUR on 31.03.2024,
- 25.000,- EUR on 30.04.2024,
- 25.000,- EUR on 31.05.2024”
3. On 28 April 2022, the Player unilaterally terminated the Contract adducing just cause.
4. On 17 May 2022, the Player lodged a claim before the FIFA Dispute Resolution Chamber under
the reference FPSD-6082 (hereinafter: the First Claim).
5. On 9 June 2022, the investigation phased of the First Claim was closed.
6. On 2 August 2022, the Claimant signed an employment contract with the Bulgarian club CSKA
Sofia.
7. On 6 September 2022, the DRC passed a decision awarding outstanding amounts and
compensation for breach of contract.
8. On 30 September 2022, the Club lodged an appeal against the referred decision before the Court
of Arbitration for Sport under the reference of CAS 2022/A/9179 (hereinafter: the CAS Appeal)
9. On 13 June 2023, the CAS passed a final decision (hereinafter: the CAS Award)
II. Proceedings before FIFA
10. On 17 October 2023, 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
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REF. FPSD-12255
11. According to the Claimant, the DRC did not previously entertain the applicability of the additional
compensation.
12. The Claimant states that in the CAS Appeal the sole arbitrator mitigated his compensation but did
not award him additional compensation. In this regard, the Claimant underlines that “CAS did not
entertain the Claimant’s requests for the payment of such amounts on the grounds that the Claimant
did not lodge a separate appeal before CAS”.
13. The Claimant argues that “It is beyond any doubt that the additional compensation only became
applicable with the deduction of the remuneration given under the employment contract signed
between the Player and Club PFC CSKA Sofia EAD by CAS, resulting in the mitigated compensation; and
the Claimant did not have any reason to lodge an appeal before CAS, since the amount of compensation
awarded with the decision of the DRC corresponded to the full residual value of the employment
contract. Even, the Claimant was not in a position to request additional compensation while lodging
his claim in front of FIFA since he had requested the full residual value of the contract”.
14. Based on the above, the Claimant deems he is entitled to the minimum amount of EUR 60,000 as
additional compensation which shall be increased to EUR 120,000 based on the existence of
egregious circumstances.
15. The Claimant filed the following requests for relief:
a. to admit the present claim,
b. to order the Respondent to pay to the Claimant the total amount of 120.000.-Euro net as additional
compensation alongside with its interests in the rate of 5% p.a. to accrue starting from 17.05.2022
(being the date of the termination of the employment contract) and until the date of effective
payment, in addition to the amounts ruled under the DRC decision delivered in the procedure with
the reference of FPSD-6082 and the arbitral award delivered in the procedure with the reference
of CAS 2022/A/9179 or
c.
in subsidiary order, to order the Respondent to pay to the Claimant the total amount of 60.000.Euro net as additional compensation alongside with its interests in the rate of 5% p.a. to accrue
starting from 17.05.2022 (being the date of the termination of the employment contract) and until
the date of effective payment, in addition to the amounts ruled under the DRC decision delivered
in the procedure with the reference of FPSD- 6082 and the arbitral award delivered in the
procedure with the reference of CAS 2022/A/9179.
b. Additional submission of the Claimant
16. On 17 October 2023, FIFA general secretariat communicated to the Claimant there closure of the
case due to the existence of res iudicata. The Claimant filed a submission insisting on his claim.
17. The Claimant underlined that “the requests under the two procedures (FPSD-6082 and FPSD-12255)
do not have the subject matter (eadem res).
pg. 5
REF. FPSD-12255
It must also be underlined that, Mr. Bamba only became entitled to such a request once the Single
Judge of the Court of Arbitration for Sport deducted the value of the new contract for the period
corresponding to the time remaining on the prematurely terminated contract, thus resulting in
awarding the mitigated compensation.
Therefore, it must be admitted that the requests under the two procedures also do not have the
same legal grounds (eadem causa petendi).”
c. Position of the Respondent
18. Despite being invited to provide its position, the Respondent failed to reply to FIFA.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
19. 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 17 October 2023 and submitted for decision on 11
January 2024. Taking into account the wording of art. 34 of the October 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.
20. At this point the Chamber assessed the admissibility of the present claim, considering the
existence of the First Claim and the CAS Appeal 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.
21. In view of the above, the Chamber held that it had to establish whether, considering the general
principle of res judicata, it could enter the substance of the matter and pass a decision.
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.
22. 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 the DRC in the case of reference FPSD-6082. Furthermore,
the said decision was appeal to the CAS by the Respondent by means of the CAS Appeal.
23. 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 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
pg. 6
REF. FPSD-12255
and the Respondent were the parties in the proceedings leading to the decision previously
rendered as well as in the dispute at stake. As a consequence, considering that the parties to both
disputes are the same, the Chamber came to the conclusion that the condition of the identity of
parties is fulfilled.
24. The Chamber then turned its attention to the criterion of the object of the matter in dispute. In
this respect, it noted that the Claimant sustains that the matter of the additional compensation
was not discussed by the CAS. In this respect, the DRC deemed important to highlight that the
matter of additional compensation was indeed considered in the CAS Appeal. In particular, paras.
68-73 of the CAS Award read as follows (note: Claimant herein referred to as “First Respondent” in
the CAS Award):
68. Before assessing the merits of the dispute and taking into account the submissions and
requests for relief filed, the Sole Arbitrator considers necessary to clarify, for the avoidance
of doubt, that in this instance, the Sole Arbitrator cannot entertain any new claim the First
Respondent may have filed against the Appealed Decision, namely, awarding to the Player
an amount of three or six monthly salaries as additional compensation under Article 17
para. 1 lit. ii) of the RSTP - and can only consider mere statements of defence.
69. The reason for this is that, as is well-established, it follows from Article R55 of the CAS
Code that the respondent to an appeal procedure is not entitled to file any counterclaim to
challenge any or all the rulings of the Appealed Decision. Instead, to file any claims
themselves, the respondent would have to file an independent appeal against the decision
in question, within the legal term established. This has been established by consistent CAS
jurisprudence (see CAS 2017/A/5481, CAS 2016/A/4852 and CAS 2016/A/4623 & 4624) and
later endorsed by the Swiss Federal Tribunal (ATF 4A_l 0/2010).
70. In this context, the Sole Arbitrator refers to paras 78 - 86 of the First Respondent's
Answer to the Appeal.
71. On its face, the above-quoted requests could be read as if the First Respondent were
introducing a "new" claim. However, having carefully analysed and interpreted the
respective requests and because this request was not elaborated any further and discussed
during the hearing, in the Sole Arbitrator's opinion, in essence, the First Respondent
requests the appeal to be dismissed, respectively for the Appealed Decision to be confirmed
in its relevant parts, i.e. that the amounts awarded are not reduced. In the Sole Arbitrator's
view this is also confirmed when considering the remainder of the First Respondent's
submissions, as in the final section of his Answer, the First Respondent stipulated as follows:
"a. to dismiss the appeal of the Appellant and to confirm the decision appealed against".
72. The Sole Arbitrator cannot take into consideration, as suggested by the First
Respondent, the award rendered by the panel in CAS appeal proceedings CAS 2020/A/6727
– each case must be considered on its own facts. In that case, the player applied to FIFA
and, his claim being rejected, appealed the FIFA decision to CAS, where he requested
additional compensation. Therefore, based on Article R57 of the CAS Code, the Panel
considered a new prayer for relief and, having power to review the case de nova, had
granted such a compensation. In the case at hand the Player neither put this prayer before
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REF. FPSD-12255
FIFA, nor appealed its decision to CAS in order to claim such an additional compensation.
73. Therefore, the First Respondent's request lit. b) goes beyond a mere confirmation of the
Appealed Decision. The First Respondent did not file an appeal against the Appealed
Decision. As a consequence, the Sole Arbitrator holds that the First Respondent's request
lit. b) is inadmissible.
25. As such, the Chamber found that that all requirements for res judicata are met in the case at hand:
a. Identity of persons – eadem personae,
b. Identity of cause – eadem causa petendi.
c.
Identity of object – eadem res;
26. The Chamber furthermore underscored that since CAS dismissed the request of the Claimant to
be awarded additional compensation, due to the Claimant’s failure to appeal the First Decision,
by filing the claim at hand, the Claimant is requesting the DRC to review a decision passed by the
CAS.
27. As a consequence of the above, the DRC confirmed that the claim is inadmissible, and it does not
have jurisdiction to hear the claim.
b. Costs
28. 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.
29. 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.
pg. 8
REF. FPSD-12255
IV. Decision of the Dispute Resolution Chamber
1.
The Football Tribunal does not have jurisdiction to hear the claim of the Claimant, Daouda Karamoko
Bamba.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 9
REF. FPSD-12255
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
pg. 10