Labour Disputes
Texto da decisão
REF FPSD-2683
Decision of the
Dispute Resolution Chamber
passed on 17 January 2022
regarding an employment-related dispute concerning the player Cephas
Malele
BY:
Jerome Perlemuter (France), Single Judge
CLAIMANT:
Cephas Malele, Switzerland
Represented by Bär & Karrer AG
RESPONDENT:
Club FC Arouca, Portugal
Represented by Emanuel Corceira Calcada
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REF FPSD-2683
I.
Facts of the case
1.
On 20 June 2018, the Swiss player Cephas Malele (hereinafter: the Claimant) and the
Portuguese club Arouca FC (hereinafter: Arouca or the Respondent) concluded an
employment agreement valid until 30 June 2019.
2.
Pursuant to article 28 of the employment contract: “In order to settle any disputes arising
from this contract, the Grantors agree to submit their resolution to the Working Section of
the Judicial Court of Aveiro, to the exclusion of any other.”
3.
On 31 May 2019, the Claimant and the Respondent signed an agreement (hereinafter: the
Termination Agreement), by means of which they terminated the employment contract with
immediate effect.
4.
In accordance with Clause 3 of the Termination Agreement, the Respondent undertook to
pay to the Claimant the following amounts:
EUR 2,000 by 20 August 2019;
EUR 8,500 split in 17 monthly instalments of EUR 500 each, starting as of 15
September 2019.
5.
Furthermore, clause 4 of the Termination Agreement provided that “in case of noncompliance with the payment schedule above, immediate maturity of all due amounts would
occur (acceleration clause)”.
6.
On 30 January 2020, upon order of the “Trade Court of Oliveira de Azemeis” which pertains
to the Judicial Court of Aveiro (JCA), in Portugal, the Respondent filed a request for the start
of a “Special Revitalization Process” (SRP), consisting of in a rescue procedure having as object
the draft of a specific recovery plan of payment in order to avoid the Respondent any
subsequent and potential status of insolvency towards its creditors.
7.
By email dated 6 August 2020, the Claimant expressed his vote in favour of the recovery plan
presented by the JCA in relation to the SRP.
8.
On 9 November 2020, the mentioned SRP was converted into an insolvency proceeding,
which contextually led to the recognition of a credit of EUR 10,500 plus interests in favour of
the Claimant.
9.
On 8 March 2021, the JCA informed the Claimant that the payment plan inserted in the
insolvency proceeding had been approved and broken down as follows:
When the payments start, if the club is in the 1st League:
Payment of 100% of the value of credits arising from employment contracts, in 48
(forty-eight) monthly instalments, constant and successive, the first after 12 (twelve)
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months after the final transit of the approval judgment of the plan, and the remainder
on the same day of the subsequent months;
When the payments start, if the club is in the 2nd League:
Payment of 100% of the value of credits arising from employment contracts, in 96
(ninety-six) monthly instalments, constant and successive, the first after 12 (twelve)
months after the final transit of the approval judgment of the plan, and the remainder
on the same day of the subsequent months;
10. On 17 May 2021, the Claimant sent a default notice to the Respondent, requesting the entire
amount of EUR 10,500 as outstanding. In his default notice, the Claimant granted the
Respondent 10 days to remedy its default.
11. On 20 May 2021, the JCA notified the parties of the conclusion of the referred insolvency
proceeding.
12. On the same date, the Respondent sent an email to the Claimant confirming that the
Respondent would have paid its debts in accordance with the recovery plan approved by the
parties.
II. Proceedings before FIFA
13. On 1 June 2021, 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
14. According to the Claimant, the Respondent failed to comply with its financial obligations
deriving from Clause 3 of the Termination Agreement, which expressly fixed the due dates
for each respective payment.
15. Furthermore, the Claimant argued that the insolvency proceedings to which the Respondent
referred as justification for the payment’s delay should not be taken into account in casu as
it would be irrelevant for the outcome of the proceeding held before the FIFA DRC.
16. Therefore, the Claimant requested to be awarded the sum of EUR 10,500 as outstanding
amount, plus a 5% interest p.a. as from the following dates:
as from 21 August 2019 over the amount of EUR 2,000
as from 22 August 2019 over the amount of EUR 8,500
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b. Position of the Respondent
17. As preliminary matter, the Respondent objected to FIFA DRC competence over the dispute
since, in its opinion, this would be clearly excluded by article 28 of the employment contract
prematurely terminated.
18. In this context, the Respondent argued that the parties have freely agreed on the Working
Section of the Judicial Court of the District of Aveiro (Portugal) as the competent and exclusive
jurisdiction to settle any dispute arising from the sports labour contract.
19. As for what concerns the substance, the Respondent held that, as to the substance, the
Claimant is bound by the outcome of the insolvency proceedings in which he previously took
part and towards which approval he expressed a favourable vote.
20. In this respect, the Respondent argued that as the claim was lodged only after the insolvency
plan had been approved, namely on 8 March 2021, then the Claimant would not be entitled
to withdraw from the latter proceeding.
21. Furthermore, according to the Respondent, its participation to the abovementioned
proceeding was not a mere choice but rather an order issued by the relevant domestic court
(Judicial Court of Aveiro), hence the Respondent is obliged to act in accordance with the
payment plan established by said national body.
22. In conclusion, the Respondent, did not contest the amounts requested by the Claimant but
objected that the relevant payments shall be made in exclusive accordance with the terms
and conditions established by the competent domestic judicial body.
c. Claimant’s rejoinder
23. In its replica, the Claimant rebut the Respondent’s argument concerning FIFA’s lack of
competence, alleging that said competence would be indeed deriving from FIFA Regulations
while at the same time the Termination Agreement, which is the sole basis of the claim, does
not contain any contrasting jurisdiction clause.
24. Furthermore, the Claimant stressed that; in the present case, the aforementioned insolvency
proceeding would not affect the ongoing procedure in front of FIFA judicial bodies simply
because the Respondent remained affiliated to the Portuguese FA even after the conclusion
of the same proceeding.
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25. Lastly, the Claimant concluded that even if the insolvency proceeding ended on 20 May 2021,
the Respondent has not complied neither in minimal part with its financial obligations since
that date.
d. Final comments of the Respondent
26. In its final submissions, the Respondent argued that as of the starting date of the insolvency
proceeding it has been mandatory for the Portuguese club to comply with the play of
payments established by the competent national authority.
27. In particular, the Respondent alleged that any payment to the Claimant differing from what
decided by the JCA would constitute a violation of the domestic law regarding insolvency
matters, hence it would expose the Respondent to sever consequences under the profile of
fiscal and civil liability.
28. Furthermore, the Respondent highlighted once again that the Claimant voluntarily chose to
participate in the aforementioned proceeding and voted for the application of the referred
payment plan, accepting to be paid in 48 monthly instalments, namely starting as of the
twelfth month following the approval of said plan.
29. Moreover, the Respondent argued that any anticipation of the planned payments would
result detrimental to the interest of other creditors, who hold the same right to be paid in
proportion to the debtor’s (i.e. Respondent) assets.
30. Accordingly, the Respondent declared to be unable to pay the Claimant before the terms
established in accordance with the insolvency proceeding and that, consequently, the present
claim shall be rejected whether not declared inadmissible.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
31. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to
as the Single Judge) 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 01 June 2021 and
submitted for decision on 17 January 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.
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32. Subsequently, the Single Judge 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 (August 2021 edition), the Dispute Resolution Chamber is,
in principle, competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a Swiss player and a Portuguese
club.
33. Notwithstanding the above, the Single Judge acknowledged that the Respondent, on the one
hand, contested the competence of FIFA’s deciding bodies on the basis of clause 28 of the
employment contract, alleging that the competent body to deal with any dispute deriving
from the relevant employment contract is the Judicial Court of Aveiro (JCA). On the other
hand, the Single Judge noted that the Claimant insisted on the competence of FIFA to
adjudicate the claim since in his opinion, the Termination Agreement constitutes instead the
claim’ solely legal basis.
34. Taking into account all the above, the Single Judge emphasised that in accordance with art.
22 par. 1 of the Regulations, FIFA is competent to hear employment-related disputes between
a player and a club with an international dimension “without prejudice to the right of any
player (…) or club to seek redress before a civil court for employment related disputes”.
35. In the present matter, the Single Judge duly noted that the Claimant and the Respondent had
unambiguously and exclusively decided that any dispute that would arise from the
employment contract would be submitted to the Judicial Court of Aveiro.
36. In this respect, the Single Judge wished to remark that, although representing the outcome
of an independent and separate contractual negotiation, said Termination Agreement could
not be deemed as superseding the employment contract by the latter prematurely terminated,
hence the same jurisdiction applicable to the employment contract shall apply to the
Termination Agreement as well.
37. In this context, The Single Judge recalled that parties may freely agree to give jurisdiction to
a civil court, and that such choice shall always prevail. In fact, the Chamber, recalling its
jurisprudence as well as the CAS jurisprudence in this regard, highlighted that even if the
choice of law does not specify which courts are competent (e.g. a generic reference is made
to a region/city), FIFA is not competent when the parties have exclusively agreed upon the
jurisdiction of a civil court. In addition, the Single Judge emphasized that art. 22 par. 1 of the
Regulations provides a clear hierarchy in favour of contractual autonomy.
38. The Single Judge was furthermore comfortable in his line of reasoning considering that the
Claimant claimed the amounts now sought before FIFA also before the cited court in Portugal.
39. On that note, for the sake of completeness, the Single Judge also wished to point out that
many elements on the claim indicated that the issue of res judicata existed in the matter.
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40. At a general level, the Single Judge wished to recall that the plea of res judicata is founded
to safeguard the certainty of rights which have already been adjudicated upon and defined
by a judgement. The principle of res judicata ensures that whenever a dispute has been
defined and decided upon, it becomes irrevocable, confirmed and deemed to be just - res
judicata pro veritate habetur.
41. In particular, the Single Judge underlined that this principle applies whenever three elements
are concurrently present, namely:
a. The same persons - eadem personae;
b. The same object - eadem res;
c. The same cause - eadem causa petendi.
42. 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 is not
even allowed to look at it but must dismiss the matter (insofar) as inadmissible.
43. The Single Judge Judge confirmed that such approach is consistent with the spirit of the FIFA
Regulations on the Status and Transfer of Players, which do not foresee the possibility for any
other FIFA deciding body to reassess a final and binding decision. Equally, the Single Judge
stressed that the Procedural Rules do also not provide for the possibility for reconsideration
of such decision based on a new application.
44. Based on the above, the Single Judge confirmed that all three elements in order for the
principle of res judicata are present in the dispute at stake:
a. the parties, i.e. the player and club;
b. the object, i.e. the payment of amounts in connection with the employment
agreement with the consequences thereof, and
c. the cause, i.e. failure by the club to comply with the cited contractual
stipulations.
45. In particular, the Single Judge wished to remark that the discussion of whether the
termination agreed had been complied with or not was at the center of the decision issued
by the Portuguese court in the context of the recovery proceedings, a matter which is now
brought up again before FIFA. Moreover, the Single Judge noted that neither of the parties
appeared to have appealed the Portuguese court’s decision.
46. In view of all the above, the Single Judge concluded that he was not competent to hear the
dispute between the Claimant and the Respondent, and consequently declared the claim
inadmissible.
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b. Costs
47. Finally, the Single Judge 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 Single Judge decided that no procedural costs were
to be imposed on the parties.
48. Likewise and for the sake of completeness, the Single Judge recalled the contents of art. 25
par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
49. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
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Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Cephas Malele, 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).
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