Dispute Resolution Chamber
Texto da decisão
REF FPSD-781 (21-00250)
Decision of the
Dispute Resolution Chamber Judge
passed on 11 May 2021
regarding an employment-related dispute concerning the player Nikolic Milos
BY:
Jon Newman (USA), DRC Judge
CLAIMANT:
FC Kokand 1912, Uzbekistan
Represented by Mr. Anil Dincer
RESPONDENT:
Nikolic Milos, Serbia
Represented by Mr. Dino Osmanovic
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REF FPSD-781 (21-00250)
I.
FACTS OF THE CASE
1.
On 4 February 2019, the Serbian player, Nikolic Milos (hereinafter: the player or the
Respondent) and the Uzbekistani club, FC Kokand 1912 (hereinafter: the club or the
Claimant), signed an employment agreement valid as from the same date until 1 December
2019 (hereinafter: the employment agreement).
2.
According to the employment agreement, the player was entitled to the following:
a. UZS 25,000,000 as monthly salary:
b. Bonuses for performance.
3.
On 20 May 2019, the parties signed a termination agreement putting an end to the
employment agreement.
4.
According to the termination agreement, the club undertook to pay to the player by 1
August 2019:
a. His salary of April 2020;
b. His pro rata salary of May 2020;
c. Bonuses related to one win and a draw.
5.
On the same date, the player authorized his teammate, Mr Marco Milic, “to receive my
salary, unpaid by [the club]”.
6.
On 21 February 2020 and 5 March 2020, the player put the club in default of payment of
UZS 250 million, corresponding to 10 monthly salaries, plus UZS 20 million as bonuses for
a win and a draw, to no avail.
7.
On 13 March 2020, the player lodged a claim with FIFA against the club, seeking UZS 250
million, corresponding to 10 monthly salaries, plus UZS 20 million as bonuses for a win and
a draw. Such case was filed under 20-00476.
8.
In its reply, the club explained that the parties had signed the termination agreement. The
player in turn contested the validity of such termination agreement.
9.
On 13 November 2020, the Dispute Resolution Chamber partially accepted the player’s
claim and ordered the club to pay UZS 61,666,666 as outstanding remuneration to the
player, plus interest (hereinafter: the Decision). The grounds of said Decision were notified
to the parties concerned on 17 November 2020.
10.
In particular, the Decision deemed the execution of the termination agreement plausible
and decided that the club should pay the amounts agreed therein to the player. No appeal
was filed against the Decision.
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REF FPSD-781 (21-00250)
11.
On or about 20 January 2021, the club paid UZS 64,285,841 to the player.
II.
PROCEEDINGS BEFORE FIFA
12.
On 18 February 2021, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a.
The claim of the Claimant
13.
The club lodged the claim at hand, seeking reimbursement of allegedly overpaid amounts.
14.
The club highlighted the facts outlined above and explained that it in fact had paid UZS
43,086,000 due to the player under the termination agreement and to the player’s
appointed representative. The club filed signed receipts in support of its allegations.
15.
The club explained that it fully complied with the employment agreement and the
termination agreement and that the overpayment of monies to the player as per the
Decision amounts to unjust enrichment. The club is of the position that it paid UZS
61,666,666 in excess.
16.
The club requested the player to be ordered to pay UZS 61,666,666 plus interest of 5%
p.a. as from 22 January until the date of effective payment.
b.
Position of the Respondent
17.
The player rejected the claim of the club and argued that the matter is res judicata on
account of the Decision. The player referred to case law of the CAS and the Swiss Federal
tribunal in this respect.
18.
Additionally, the player rebutted the argument of unjust enrichment, and stated inter alia
“the Claimant evidently voluntarily satisfied an existent debt paying it, not in the
erroneous belief that the debt was owed, but in the genuine and true belief, i.e.
there was never erroneous belief that the debt is owed, since Claimant expressed his
straggling arguing in many occasions before the payment completion, and was/or should
have been/was obligated to beat all times aware of the exact situation and development
of case, especially of the FIFA decision, but which he decided with his own will to tacitly
accept by not participating in the investigation procedure and by not appealing to it,
implying to concurring in his genuine belief that the debt is indeed owed and in that sense
having paid the debt owed”.
19.
In continuation, the Respondent argued that the club renounced its rights by not defending
itself in the original claim, and that the player was genuine and diligent, while the club was
negligent by not requesting the grounds of the decision and appealing. In particular, the
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player argued that “not having certain knowledge on the law and procedures, on which
the Club was well instructed by FIFA anyway, does not excuse the Club from violating the
regulations or committing omissions, as these are at its own burden, while at all times the
Club had at his full disposal possibility to participate in the investigation procedure and to
appeal but due to its own fault or with his own will decided not to”.
20.
Lastly, the player argued that the documentation provided by the club does not
demonstrate that payments were made to the player.
21.
The requests for relief of the player were as follows:
“1. Claim of FC Kokand 1912 refers to the subject-matter that is Res Iudicata;
2.Res Iudicata is based on a final and binding decision of FIFA REF 20-20-00476 dated 13
November 2020;aliud; praeterea;
3.There is no elements of unjust enrichment; praeterea;
4.FC Kokand 1912 never took a position in the dispute, despite having been duly asked to
do so by the FIFA administration on several occasions which conducted fair and duly
proceedings; praeterea;
5.Approach of FC Kokand 1912 was constantly grossly negligent ;praeterea;
6.Right to be heard, equal treatment, right to present evidence, right for evidence leading
to a decision to be inspected, to access files and right to a motivated decision and right and
access to hire a counsel, especially through Pro Bono institute, were at full disposal to the
Club at all times, and/or a fair opportunity in that regard was provided by FIFA to the Club,
but it was the Club's sole choice not to execute them; praeterea;
7.FC Kokand 1912 had renounced its right to defence and to appeal and thus accepted the
allegations of the Player and decision of FIFA; praeterea;
8.Approach of the Player was always highly genuine and diligent; praeterea;
9.Legal consistency, certainty, efficiency and credibility of the FIFA procedures must be
protected; praeterea;
10.Claim of FC Kokand 1912 is vexatious, disruptive, fabricated and undermines and abuses
fundamental principles of law and it is to be dismissed in its entirety as inadmissible”.
III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER JUDGE
a.
22.
Competence admissibility
First of all, the Dispute Resolution Chamber Judge (hereinafter also referred to as DRC
Judge) analysed whether he was competent to deal with the case at hand. In this respect,
he took note that the present matter was presented to FIFA on 18 February 2021 and
submitted for decision on 11 May 2021. Taking into account the wording of art. 21 of the
January 2021 edition of the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the
aforementioned edition of the Procedural Rules is applicable to the matter at hand.
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REF FPSD-781 (21-00250)
23.
Subsequently, DRC Judge referred to art. 3 par. 1 of the Procedural Rules and observed that
in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the Regulations on
the Status and Transfer of Players (edition February 2021), he is in principle competent to
deal with the matter at stake, which concerns an employment-related dispute with an
international dimension between a Serbian player and a Uzbekistani club.
24.
Notwithstanding the above, the DRC Judge took note that the parties dispute whether FIFA
is competent to hear the Claimant’s claim inter alia on the basis of res judicata. Accordingly,
the DRC Judge proceeded to examine his competence.
25.
At a general level, the DRC 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.
26.
In particular, the DRC 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.
27.
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.
28.
The DRC 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 DRC
Judge stressed that the Procedural Rules do also not provide for the possibility for
reconsideration of such decision based on a new application, as it is the case at hand.
29.
Based on the above, the DRC 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.
30.
In particular, the DRC 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, a
matter which is now brought up again before FIFA. Moreover, the DRC Judge noted that
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neither of the parties appeared to have appealed the Decision, which is as a consequence
final and binding.
31.
Lastly, the DRC Judge emphasized that allowing the club to “cure” its procedural flaw of
failing to appeal the Decision – as the apparently wished to contest the latter - by filing a
new claim for reimbursement would contravene not only the principle of res judicata but
also the legal certainty of proceedings before FIFA.
32.
All the above led the DRC Judge to conclude that the claim of the Claimant is inadmissible.
b.
Costs
33.
The DRC Judge referred to article 18 par. 2 of the Procedural Rules, according to which
“DRC proceedings relating to disputes between clubs and players in relation to the
maintenance of contractual stability as well as international employment related disputes
between a club and a player are free of charge”. Accordingly, the DRC Judge decided that
no procedural costs were to be imposed on the parties.
34.
Likewise and for the sake of completeness, the DRC Judge recalled the contents of art. 18
par. 4 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
IV.
DECISION OF THE DISPUTE RESOLUTION CHAMBER JUDGE
1.
The claim of the Claimant, FC Kokand 1912, is inadmissible.
2.
This decision is rendered without costs.
For the Dispute Resolution Chamber Judge:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF FPSD-781 (21-00250)
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 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 20 of the Procedural Rules).
CONTACT INFORMATION:
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