Labour Disputes
Texto da decisão
REF. FPSD-17171
Decision of the
Dispute Resolution Chamber
passed on 13 March 2025
regarding an employment-related dispute concerning
the Player Nihad Mujakic
BY:
Frans DE WEGER (The Netherlands), Chairperson
Alexandra GÓMEZ BRUINEWOUD (Uruguay & The Netherlands), Member
Oleg ZADUBROVSKIY (Russia), Member
CLAIMANT:
Nihad Mujakic, Bosnia and Herzegovina
Represented by Koray Akalp
RESPONDENT:
MKE Ankaragücü, Türkiye
pg. 2
REF. FPSD-17171
I. Facts of the case
1.
On 2 August 2022, the Bosnian player Nihad Mujakic (hereinafter, the Claimant or the
Player) and the Turkish club MKE Ankaragücü (hereinafter, the Respondent or the Club)
concluded an employment contract (hereinafter, the Contract) valid as from 2 August 2022
until 31 May 2026.
2.
Pursuant to Clause 3 of the Contract, the Club undertook to pay the Player (hereinafter,
jointly referred to as the Parties) the following fixed remuneration:
- 2022/2023 season: EUR 300,000 net in 10 monthly instalments of EUR 30,000 net
each;
- 2023/2024 season: EUR 310,000 net in 10 monthly instalments of EUR 31,000 net
each;
- 2024/2025 season: EUR 320,000 net in 10 monthly instalments of EUR 32,000 net
each; and
- 2025/2026 season: EUR 330,000 net in 10 monthly instalments of EUR 33,000 net
each.
3.
In addition, in accordance with Clause 3 of the Contract, the Player was also entitled to,
inter alia, the following bonus:
“If the Player plays 25 (twenty-five) official league games in the 2024/2025 football season
in the starting 11 team, the Club accepts to pay 25.000 Euros (Twenty five Thousand Euros)
net as a success bonus.”
4.
On 10 May 2024, the Player put the Club in default, granting it a deadline of fifteen days to
proceed with the payment of EUR 149,000 net per the following amounts and concepts:
- EUR 31,000 net for January 2024;
- EUR 31,000 net for February 2024;
- EUR 31,000 net for March 2024;
- EUR 31,000 net for April 2024; and
- EUR 25,000 net for the participating bonus.
5.
On 12 June 2024, the Player sent a letter to the Club acknowledging having received EUR
31,000 and EUR 15,500, stating that the amount of EUR 102,500 net still remained unpaid
and overdue. In addition, the Player again put the Club in default, and granted it a new
pg. 3
REF. FPSD-17171
deadline of fifteen days to pay EUR 133,500 net, stating that the allowance of May 2024 had
also fallen due.
6.
On 22 June 2024, the Respondent and the Serbian club FK Partizan concluded a transfer
agreement for the definitive transfer of the Player from the Respondent to FK Partizan.
7.
On 23 June 2024, the Parties concluded the so-called “Mutual Termination Agreement &
Release Letter” (hereinafter, the Termination Agreement), in accordance with which:
“SUBJECT OF THE AGREEMENT
1. The Parties signed an Employment Contract for Professional Footballers starting date
02.08.2022 and ending date 31.05.2026 (30.06.2026).
2. The Parties hereby agree on mutual termination.
3. As a consequence of a mutual termination, the Parties agreed on the below-mentioned
conditions:
4. The Player has 151.000 Euros net unpaid receivables. The player hereby has irrevocably
waived 60.000 Euros net unpaid receivables as compensation for early termination of
the contract. The Club hereby accepts to pay to the Player 91.000 (Ninety-One Thousand)
Euros net unpaid receivables on 17th July 2024.
5. The player confirms and undertakes that he is not going to claim anything except the
above mentioned amount (91.000 Euros net). The player hereby has irrevocably waived
all his financial rights except from the above-given 91.000 Euros net for the employment
relationship with the Club.
6. Any dispute arising from this Agreement will be submitted to FIFA Football Tribunal and
FIFA Regulations shall be applied to the dispute.”
8.
On 13 August 2024, the Player lodged a claim against the Club before the Football Tribunal,
with reference FPSD-15572.
9.
In his claim, the Player denounced that the Club had repeatedly failed to fulfil its financial
obligations under the Contract by failing to remit several of his monthly salaries. In
addition, the Player sustained that the Club pressured and forced him verbally into waiving
his receivables and that he therefore had no choice but to sign the Termination Agreement.
10. Furthermore, the Player argued that the Club also failed to comply with the terms of the
Termination Agreement, and that the Club did not pay the agreed amount of EUR 91,000
net by 17 July 2024. Based on the foregoing, the Player claimed to be entitled to EUR 91,000
pg. 4
REF. FPSD-17171
net as outstanding amount plus 5% interest per annum as from 17 July 2024 pursuant to
the Termination Agreement.
11. In his claim, the Player requested the following relief:
“By reserving our every legal right to claim the remaining instalments and for the facts and
legal arguments that were developed above, the FIFA Dispute Resolution Chamber is
respectfully requested:
1. To accept the claim of [the Player];
2. To condemn [the Club] to pay in favour of the Claimant the total unpaid and overdue
remuneration of Net EUR 91.000 – along with the interest rate of 5% p.a. starting from
17 July 2024 until the date of effective payment;
3. To establish that the costs of the present arbitration procedure shall be borne by the
Respondent.”
12. The Club failed to reply to the aforementioned claim despite being invited to do so.
13. On 8 October 2024, the Dispute Resolution Chamber (hereinafter, the Chamber or the DRC)
passed a decision (hereinafter, the Decision) in the aforementioned proceeding (FPSD15572), the findings of which were notified to the Parties on 14 October 2024. The operative
part of the Decision reads as follows:
“Decision of the Dispute Resolution Chamber
1. The claim of the Claimant (…) is accepted.
2. The Respondent (…) must pay to the Claimant the following amount(s):
3. Full payment (including all applicable interest) shall be made to the bank account
indicated in the enclosed Bank Account Registration Form.
4. Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, if full
payment (including all applicable interest) is not made within 45 days of notification of
this decision, the following consequences shall apply:
1. The Respondent shall be banned from registering any new players, either nationally
or internationally, up until the due amount is paid. The maximum duration of the ban
shall be of up to three entire and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee in the event that full payment (including all applicable interest) is still not
made by the end of the three entire and consecutive registration periods.
pg. 5
REF. FPSD-17171
5. The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of
Players.
6. This decision is rendered without costs.”
14. On 16 October 2024, the Club requested the grounds of the aforementioned Decision.
15. On 29 October 2024, the FIFA General Secretariat notified the grounds of the Decision.
16. After having carefully analysed the provisions of the Termination Agreement, the DRC
found as follows:
“Main legal discussion and considerations
(…)
17. On account of the foregoing provision, the Chamber observed that the Club
acknowledged being in default in the amount of EUR 151,000. Additionally, that the
Player agreed to waive the sum of EUR 60,000 and, consequently, that he would receive
EUR 91,000.
18. In this respect, the Chamber noted that the Player argued that the Club pressured and
forced him to waive his remuneration and that therefore he had no choice but to sign
the Termination Agreement on 23 June 2024 in order to become a free agent.
Furthermore, the Player sustained that the Club failed to pay EUR 91,000 agreed in the
Termination Agreement, and thus claimed being entitled to this amount. The Chamber
also noted that the claim remained uncontested by the Respondent.
19. In this context, the Chamber initially observed that the Player did not advance any
documentation in support of his position or any proof of unfair negotiations or duress.
Consequently, the Chamber determined that the Claimant did not meet his burden of
proof in line with art. 13 par. 5 of the Procedural Rules, and decided to set aside his
argumentation in this regard.
20. Without prejudice to the foregoing, the Chamber did not overlook that the Termination
Agreement constituted a waiver for work already performed, as it is clearly stipulated
therein. In this respect, the DRC recalled that the first conclusion that follows from the
jurisprudence of the Court of Arbitration for Sport (CAS) is that waiving of salaries for
work already performed cannot be validly made (cf., inter alia, CAS 2020/A/7627 and
2016/A/4582), to which the Chamber adhered.
21. In line with the abovementioned jurisprudence, the DRC considered that, in casu, the
pg. 6
REF. FPSD-17171
waiver could not be deemed valid, given that the Termination Agreement provided no
reason for which such waiver was made. Indeed, the Chamber pointed out that there
may be cases in which a waiver of remuneration could be considered, subject to the
player being granted an equivalent consideration in exchange of such waiver, which in
the present case could not be established. In fact, the Player’s consideration was
receiving far less than what he was entitled to only in exchange for the termination of
the Contract. Accordingly, the Chamber determined that the waiver provided in the
Termination Agreement was not valid.”
17. After having established the foregoing, the DRC nonetheless found that, in his claim, the
Player had limited his request to EUR 91,000, corresponding to the amount agreed under
the Termination Agreement. Accordingly, the DRC decided as follows (par. 23 of the
Decision):
“On account of the foregoing, and based on the legal principle ne ultra petita, the Chamber
concluded that it was not in a position to award the overall outstanding remuneration
acknowledged by the Club in the Termination Agreement, and that its analysis was limited
to the enforceability of the claimed amount, i.e., EUR 91,000.”
18. Based on the foregoing, and considering that the claim remained uncontested by the Club
and, therefore, without there being any evidence of compliance with the terms of the
Termination Agreement, the DRC decided that the Club was liable to pay the Player the
outstanding amounts arising from the Termination Agreement, i.e., EUR 91,000 net, plus
5% interest per annum as from 18 July 2024.
19. On 16 November 2024, the Club filed an appeal against the Decision (FPSD-15572) before
the Court of Arbitration for Sport (CAS), with reference CAS 2024/A/1109. In its Statement
of Appeal, the Club requested the following relief:
“The Appellant requests from the Panel to grant an injunctive relief reversing the appealed
decision, to set aside the decision given by the FIFA DRC and to reject the Respondent’s claim.
The brief stating the facts and legal arguments giving rise to appeal, together with all
exhibits and specifications of other evidences will be filed within the time limit.”
20. On 31 January 2025, the CAS issued a Termination Order in the aforementioned appeal
procedure after the Club withdrew its appeal on 12 December 2024.
pg. 7
REF. FPSD-17171
II. Proceedings before FIFA
21. On 21 November 2024, the Player filed the claim at hand before FIFA. A summary of the
Parties’ position is detailed below.
a. Position of the Claimant
22. The Player argued that the Club failed to remit several monthly instalments, and thus on
10 May 2024 he put the Club in default requesting the payment of EUR 149,000,
corresponding to his remuneration for January to April 2024 and a bonus. Nonetheless, the
Player sustained that the Club only made a partial payment of EUR 46,500, and again put
it in default for the amount of EUR 133,500, corresponding to his remuneration for
February to May 2024, as well as the aforementioned bonus.
23. The Player further asserted that the Club pressured and forced him verbally to waive his
remuneration, and that he had no choice but to sign the Termination Agreement on 23
June 2024. In this regard, the Player claimed that it was not his intention to waive EUR
60,000 as stipulated in the Termination Agreement, but that he had to do so in order to
become a free agent. According to the Player, “There is no hesitation that as of the date of the
Mutual Termination Agreement, the Claimant was already entitled to an amount of net EUR
151.000 from the Respondent, arising out of the Employment Contract dated 2 August 2022”.
24. The Player argued that on 13 August 2024 he lodged his first claim against the Club (FPSD15572) reserving his rights to request the remaining instalments and amounts, and
requesting EUR 91,000 net. In this regard, the Player denounced that the Club still has not
paid the aforementioned amount plus interest in accordance with the Decision passed in
FPSD-15572.
25. The Player sustained that the Decision addressed the waiver of EUR 60,000, and concluded
that such waiver could not be considered as valid. Accordingly, “Taking into consideration
the facts, the remarks of FIFA DRC in the grounds of the decision FPSD-15572 as well as the
jurisprudence of the Court of Arbitration for Sport, the waiver of net EUR 60.000 in the Mutual
Termination Agreement is not valid and that this amount should also be paid by the Respondent
to the Claimant”.
26. The Player requested the following relief:
“By reserving our every legal right to claim other overdue and/or due payables of the
Claimant from the Respondent arising from the Employment Contract dated 2 August 2022
and the mutual Termination Agreement dated 23 June 2024 and for the facts and legal
arguments that were developed above, and in addition to the amount awarded to the
Claimant through the FIFA Dispute Resolution Chamber decision dated 8 October 2024 in
pg. 8
REF. FPSD-17171
the procedure FPSD-15572, the FIFA Dispute Resolution Chamber is respectfully requested:
1. To accept the claim of [the Player];
2. To condemn [the Club] to pay in favour of the Claimant the total unpaid and overdue
remuneration of Net EUR 60.000 along with the interest rate of 5% p.a. starting from 17
July 2024 until the date of effective payment;
3. To establish that the costs of the present arbitration procedure shall be borne by the
Respondent.”
b. Position of the Respondent
27. In its reply, the Club initially argued that the present claim is inadmissible “as the claimant
created a case before this case”. In this regard, the Club asserted that the Player based his
claim on the reasoning of the Decision in FPSD-15572, that ruled that the waiver was not
valid because the Club did not reply to the claim. In this regard, the Club asserted that the
waiver of remuneration should be considered valid because the Player was granted an
equivalent consideration in exchange for such waiver.
28. According to the Club, at the end of the 2023/2024 season, the Club got relegated, and the
Player verbally informed it that he did not want to continue with the employment
relationship. In this context, the Club informed the Player that it would only accept to
transfer the Player in case a third club would pay a transfer fee to cover the Club’s
expectations.
29. In this regard, the Club asserted that it received an offer for the Player’s definitive transfer
from the Serbian club FK Partizan, but that offer did not meet the Club’s expectations.
Nonetheless, it was agreed with the Player that he would waive part of his remuneration in
exchange to be allowed to join FK Partizan. The Club further sustained that “(…) the player
extremely benefited from this transfer. The player agreed on a waiver of remuneration to not
miss this transfer opportunity which will contribute to him financially and morally. If the player
had not accepted the waiver, the club would not accept the transfer offer, and the player would
have played in the second division of Türkiye.”
30. The Club further argued that the Termination Agreement clearly stipulates that the waiver
was made “as compensation for early termination of the contract”, and that the Player was
not under duress or any pressure while he was signing the waiver.
31. The Club requested the following relief:
“In the light of the above-mentioned explanations, we kindly request DRC to order that the
claim is inadmissible, or it is rejected.”
pg. 9
REF. FPSD-17171
c. Rejoinder of the Claimant
32. The Player initially rejected the Club’s objection to the admissibility of the claim, arguing
that in his first claim (FPSD-15572) he sought payment of EUR 91,000 in accordance with
the Termination Agreement, while reserving the right to claim the remaining amounts.
33. The Player argued that the present claim “is also arising from the Mutual Termination
Agreement & Release Letter dated 23 June 2024 as well as the Employment Agreement dated 2
August 2022”. In addition, the Player denied having based the present claim on the Decision
in FPSD-15572, but on the Termination Agreement and the unlawful waiver which the
Player was forced by the Club to sign.
34. The Player further asserted that the Club did not deny the fact that, before signing the
Termination Agreement, it was in default for several monthly instalments. In this regard,
the Player insisted that he never had the intention to waive his remuneration, but that “On
the contrary, the Claimant was prepared to initiate legal action against the club for the collection
of these outstanding amounts”, and that instead of terminating the Contract, he agreed to
be transferred to FK Partizan.
35. According to the Player, he was informed by the Club that he would only be allowed to join
FK Partizan if he accepted the terms of the Termination Agreement. As such, the Player
insisted that he had no other option but to waive his entitlement to EUR 60,000, and that
such waiver is not valid in accordance with art. 341.1 of the Swiss Code of Obligations.
36. The Player also denounced that the Club still has not paid the amount awarded in the
Decision (FPSD-15572), and that the Club lodged an appeal before CAS to delay its financial
obligations towards the Player.
37. The Player reiterated his request for relief.
d. Respondent’s last comments
38. The Club reiterated that the present claim is inadmissible as it is affected by res judicata. In
this regard, the Club insisted that the Player “created a case before this case” (i.e., FPSD15572), and pointed out that on 29 January 2025 it withdrew the appeal lodged before CAS
against the aforementioned Decision. Accordingly, the Club sustained that said Decision
has become final and binding for the Parties.
39. The Club argued that, in casu, the necessary elements for the existence of res judicata (i.e.,
eadem personae, eadem res and eadem causa petendi) are met. In particular, the Club
sustained that the parties to both disputes are the same, and that both claims derive from
outstanding amounts based on the Contract and the Termination Agreement. As a result,
“the same object and the same cause criteria were fulfilled for the res judicata effect”.
pg. 10
REF. FPSD-17171
40. In addition, the Club asserted that 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. In this regard, the Club
pointed out that “The claimant clearly stated that he was aware of the waived amount of 60,000
Euros at the time of the first decision. He did not request this amount willingly.”
41. The Club requested the following relief:
“In the light of the above-mentioned explanations, our reply letter, and other reasons which
will be considered by DRC ex-officio, we kindly request DRC to order that:
i.
The present claim is inadmissible.
ii.
The present claim is rejected.”
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
42. First of all, the Chamber 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 21 November
2024 and submitted for decision on 13 March 2025. Taking into account the wording of art.
31 of the January 2025 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.
43. Furthermore, 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 the January
2025 edition of the Regulations on the Status and Transfer of Players (hereinafter, the
Regulations), the DRC is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a Bosnian player
and a Turkish club.
b. Admissibility of the claim
44. The Chamber noted that the Club challenged the admissibility of the claim based on the
principle of res judicata, arguing that the Decision passed in FPSD-15572, which it
considered to be final and binding, concerned the same parties, the same object and the
same cause. The Club contended that the effects of the res judicata principally extend to all
the facts existing at the time of the first decision, irrespective of whether they were known
to the parties, stated by them, or considered as proof by the first decision-making body.
pg. 11
REF. FPSD-17171
45. Conversely, the Player rejected the Club’s challenge to the admissibility of the claim,
asserting that in his first claim he sought payment of EUR 91,000 in accordance with the
Termination Agreement, whereas he is now claiming the amount he allegedly unlawfully
was forced to waive, and that in his claim for EUR 91,000 he had reserved his rights to claim
other instalments.
46. In this context, the DRC acknowledged that, before addressing the merits of the present
case, it first had to examine whether, as argued by the Club, the claim of the Player is
affected by the principle of res judicata.
47. The Chamber started its analysis by recalling that, according to the principle of res judicata,
a decision-making body is not in a position to decide on 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. The DRC pointed out that this principle 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.
47. In this regard, the Chamber went on to analyse the evidence submitted by the Parties to
the present proceedings and noted that, indeed, a decision had been passed by a
competent deciding body on 8 October 2024 (i.e., the Decision passed by the DRC in FPSD15572).
48. The Chamber also noted that, even though the Club filed an appeal with CAS against the
aforementioned Decision on 16 November 2024, it ultimately withdrew its appeal in
accordance with the Termination Order pronounced by the CAS in CAS 2024/A/1109 MKE
Ankaragucu Spor Kulübü v. Nihad Mujakic on 31 January 2025.
49. As a consequence, the DRC underscored that the Decision in FPSD-15572 is final and
binding on the Parties and, therefore, the main requisite for the existence or applicability
of the principle of res judicata (i.e., a final and binding decision) is met in the present case.
50. The above having been established, the Chamber further underlined that the principle of
res judicata is applicable if cumulatively and necessarily the parties to both disputes and
the object of the matter in dispute, and the cause are identical. As confirmed in the wellestablished jurisprudence of FIFA and the CAS, the principle of res judicata applies when
the following three elements are cumulatively present:
o The same persons – eadem personae;
o The same object – eadem res; and
o The same cause – eadem causa petendi.
pg. 12
REF. FPSD-17171
51. As explained by the Panel in CAS 2019/A/6483 Wydad Athletic Club v. CAF & Espérance
Sportive de Tunis:
“(…) according to the SFT, there is res judicata when the claim in dispute is identical to that
which was already the subject of an enforceable judgement (identity of the subject matter
of the dispute). This is the case when both proceedings involve the same parties and the
same matter in dispute. The identity must be understood from a substantive and not
grammatical point of view, so that a new claim, not matter how is formulated, will have the
same object as the claim already adjudicated (ATF 140 III 278 at 3.3; ATF 139 III 126 at
3.2.3.).”
52. The DRC also recalled that the principle of res judicata has a positive and a negative effect
with regard to a previous decision. While the positive effect implies that the parties can rely
on the findings of the previous decision, the negative effect implies that a deciding-making
body is prevented to reconsider or to re-enter the merits of an issue previously decided (in
this regard, see, inter alia, CAS 2021/A/7915 Javier González López v. Hapoel Tel Aviv FC &
FIFA).
53. In addition, the Chamber also remarked that the res judicata effect extend to all the facts
existing at the time of the first judgement, whether or not they were known to the parties,
stated by them, or considered by the first court (cf. CAS 2020/A/6884 Soukeyna Ba
Bengelloun v. FIFA & PFC CSKA-Sofia).
54. With the above in mind, the DRC went on to examine whether the criterion of the identity
of parties is met in the present case. In this regard, the members of the Chamber noted
that both the Player and the Club were the parties in the proceedings leading to the
Decision in FPSD-15572, and they are also the parties to the dispute at stake.
55. As a consequence, the Chamber unanimously concluded that the requirement of identity
of parties was fulfilled in casu.
56. The DRC then proceeded to analyse whether the criterion of the object of the matter was
also met. In this regard, the Chamber recalled that the identity of the subject matter is
fulfilled if the reason to claim and the relevant requests of the two claims are similar.
57. In this regard, the Chamber noted that, in his first claim, the Player denounced that the
Club had failed to remit several of his monthly salaries, and that he had been allegedly
forced by the Club to sign the Termination Agreement. Based on the provisions of said
Termination Agreement, the Player claimed to be entitled to EUR 91,000 net plus interest,
arguing that he had reserved his rights to claim remaining amounts while lodging the case
(FPSD-15572).
pg. 13
REF. FPSD-17171
58. The Chamber then noted that, in the present case, the Player is requesting the payment of
EUR 60,000, which represents the amount that the Player waived in accordance with the
Termination Agreement.
59. Accordingly, the DRC noted that while the first claim was limited to the outstanding amount
of EUR 91,000 that the Club undertook to pay to the Player on 17 July 2024, the present
claim envisages discussing the Player’s entitlement to the waived amount of EUR 60,000.
60. As a consequence of the foregoing, the Chamber considered that the requirements for the
existence of res judicata were not formally met, in that the subject matter of the present
dispute is different from the one decided in FPSD-15572.
61. Notwithstanding the above, the majority of the Chamber opined that the (procedural)
behaviour of the Player cannot be overlooked. In this regard, the majority of the Chamber
considered that it was clear from the Player’s submissions (both in casu and in FPSD-15572)
that when the first claim was lodged before FIFA, he already knew and was aware that the
Club had an outstanding debt of EUR 151,000. In fact, the DRC, by majority, pointed out
that the Player literally argued in his claim that “There is no hesitation that as of the date of
the Mutual Termination Agreement, the Claimant was already entitled to an amount of net EUR
151.000 from the Respondent, arising out of the Employment Contract dated 2 August 2022”.
What is more, the Chamber also observed that, according to the Player, the present claim
“is also arising from the Mutual Termination Agreement & Release Letter dated 23 June 2024 as
well as the Employment Agreement dated 2 August 2022”.
62. As such, the majority of the Chamber considered that the Player not only could but should
have requested the waived amount together with the other concept sought in his first
claim. However, as the waived amount was not requested then, the Chamber, by majority,
found that the Player is consequently precluded from starting a new proceeding now for
that concept.
63. In this regard, the majority of the Chamber recalled the principle of preclusion, which as a
general principle of law, denotes that the parties must (procedurally) act in good faith and
file the entirety of their requests in the appropriate time, under penalty of being prohibited
from doing so at a later stage.
64. The majority of the Chamber deemed that any different conclusion from the one above
would jeopardize the spirit of the Procedural Rules, in that parties would be able to file
independent claims as they please. The majority of the Chamber understood this
contravenes not only the principles of good procedural order and procedural economy,
but also the due process and, ultimately, legal certainty within the FIFA dispute resolution
system (see, inter alia, DRC Decision of 29 June 2023, Schenk, DRC Decision of 23 June 2023,
Rayhi, DRC Decision of 27 June 2023, Aganovic). For the sake of completeness, the majority
pg. 14
REF. FPSD-17171
of the Chamber is of the opinion that any reservation, as was made by the Claimant in the
present case, could not be of any assistance for him in successfully pursuing his claim.
65. By the same token, the majority of the Chamber underscored that the submission of a first
claim and then a different one against the same party for amounts that could have already
been claimed in the first DRC proceedings harmed the legitimate expectation of the debtor
(in casu, the Club), which is also reprehensible in line with the doctrine of venire contra
factum proprium. Not claiming the waived amount in the context of the first claim, quite
clearly, generated the (legitimate) expectation on the Club that this concept was not in
dispute1.
66. Based on the foregoing considerations, the Chamber, by majority, decided that the claim
of the Player is inadmissible.
c. Costs
67. 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.
68. 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.
69. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
1
In this regard, the majority of the Chamber additionally drew attention to the specific wording of the request of
relief in the first claim (FPSD-15572), in which the Player determined the demanded EUR 91,000 net as a ‘total
unpaid and overdue remuneration’, thereby creating a legal expectation of the Club that this was the final amount
sought by the Claimant.
pg. 15
REF. FPSD-17171
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Nihad Mujakic, is inadmissible.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 16
REF. FPSD-17171
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 – Legal & Compliance Division
396 Alhambra Circle, 6th floor, Coral Gables, Miami, Florida, USA 33134
legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 17