DRC - Preliminary Decisions
Texto da decisão
REF FPSD-5371
Decision of the
Dispute Resolution Chamber
passed on 28 March 2022
regarding an employment-related dispute concerning the player
Luciano Pereira Mendes
BY:
Frans de Weger (Netherlands), Chairperson
CLAIMANT:
Luciano Pereira Mendes, Brazil
Represented by Tannuri Ribeiro Advogados
RESPONDENT:
Sanat Naft Abadan FC, Iran
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I.
Facts of the case
1.
On 26 June 2017, the Brazilian player Luciano Pereira Mendes (hereinafter the Claimant or the
player) and the Iranian club Sanat Naft Abadan FC (hereinafter the Respondent or the club)
concluded an employment agreement (hereinafter the Employment Agreement) valid until the
end of the season 2018/2019.
2.
The Claimant and the Respondent (hereinafter the Parties) agreed upon a yearly remuneration in
the amount of IRR 11,340,000,000 (Iranian Rial), payable as follows:
“4-1 - 40% of contract will be paid after signing [sic]
4-2 – 40% will be pay in mid-season [sic]
4-3 – 20% will be paid by the end of season”.
3.
According to the Claimant, the payments were supposed to be paid as follows:
- 40% (or IRR 4,536,000,000) due after the signature of the Employment Contract, i.e. as from
27 June 2017;
- 40% (or IRR 4,536,000,000,000) due in the middle of 2017-2018 season, i.e. as from
5 December 2017; and
- 20% (or IRR 2,268,000,000) due by the end of the 2017-2018 season, i.e. on or before
27 April 2018.
4.
On 8 November 2019, the Claimant lodged a claim before FIFA (hereinafter the First Claim),
requesting IRR “3,402,000 (three million four hundred and two thousand Iranian Rials) due as
remuneration for the services provided in accordance to the Employment Contract.”
5.
Throughout his claim, the Claimant requested the said amount of IR 3,402,000, which he allocated
“as remainder of the remuneration to date”.
6.
On 21 January 2020, the FIFA Dispute Resolution Chamber (DRC) Judge passed a decision in the
matter (hereinafter the Decision), ruling, inter alia, that “[t]he Respondent, Sanat Naft Abadan
Football Club, has to pay to the Claimant outstanding remuneration in the amount of IRR
3,402,000 plus 5% interest p.a. as from 27 April 2018 until the date of effective payment.”
7.
On 9 March 2020, the Respondent informed FIFA that the said amount (including the interest) had
been paid to the Claimant.
II. Proceedings before FIFA
8.
On 7 March 2022, the Claimant filed the claim at hand before FIFA. A brief summary of the position
of the parties is detailed in continuation.
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9.
In his claim, the Claimant requested “[t]o order the Club to pay to the Player the amount of
IRR 3,398,257,800 due as outstanding remuneration, plus default interest at the rate of 5% per
annum as from 28 April 2018 until the effective date of payment.”
10. The Claimant argued that, in his First Claim, “instead of receiving IRR 3,402,000,000 from the Club,
he only received IRR 3,742,200.”
11. He continued that “[s]uch discrepancy between the aforementioned amounts is result of a clerical
calculation error when lodging the First Claim before the FIFA DRC. That is, the Player instead of
claiming 30% of the IRR 3,402,000,000, (being the remaining 30% of the remuneration under the
Employment Contract), only and mistakenly claimed IRR 3,402,000).”
a. As to the alleged debt recognition
12. The Claimant was of the opinion that the claim is not time-barred and shall be considered
admissible.
13. In support of his allegations, the Claimant argued that the FIFA Regulations do “not provide any
grounds for interruption of the 2-year prescription period and consequently there arises a lacuna.”
Nonetheless, the Claimant pointed out that in line with the FIFA jurisprudence, “when a party
acknowledges or admits a debt, a claim should be ruled admissible in spite on the (original) event
giving rise to the dispute had passed the limitation period of two years.”
14. In this respect, the Claimant argued that “considering that the Club acknowledged its debt towards
the Player – in particular by making the part payment of the debt, a new prescription period of
2 years shall begin as from the date of the debt acknowledgement. Therefore, the new prescription
period shall be 9 March 2022.”
b. As to the res judicata
15. The Claimant further asserted that “it is necessary to establish that the principle of res judicata
shall not apply in the case at hand.”
16. After recalling the “triple identity test”, he argued that “if one of the said elements are different or
absent, there will be no res judicata since the object will not be the same.”
17. The Claimant was of the opinion that “that the object of the Player in casu is different since the
amount of the outstanding of compensation being requested are not the same and the Player is
requesting for an amount, which was not previously requested or adjudicated on, there will be no
res judicata.”
18. Finally, the Claimant added that “taking into consideration that the FIFA DRC, while rendering the
DRC Decision did not deliberate on the outstanding amount on IRR 3,398,257,800 since it was
never claimed in the First Claim, it is undisputed that the present Claim is not affected by res
judicata.”
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19. On 9 March 2022, FIFA general secretariat informed the Claimant that the Football Tribunal did
not appear to be competent to deal with the case at stake, as the case has already been dealt with
by a decision-making body and appears to be a “res judicata”.
20. On 10 March 2022, the Claimant reiterated its position as to the admissibility of the claim.
Furthermore, the Claimant insisted that FIFA was competent to hear the dispute and requested a
formal decision to be issued by the Football Tribunal.
III. Consideration of the Dispute Resolution Chamber
a. Competence and applicable legal framework
21. First of all, the Chairperson of the Dispute Resolution Chamber (hereinafter also referred to as the
Chairperson) analysed whether he was competent to deal with the case at hand.
22. In this respect, he took note that the present matter was presented to FIFA on 7 March 2022 and
submitted for a preliminary decision on 28 March 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.
23. At the same time, the Chairperson confirmed that, in accordance with art. 19 par. 1 and 2 of the
Procedural Rules, he shall decide, in an expedited manner, whether the case at stake if affected
by any preliminary procedural matter (i.e. if the Football Tribunal obviously does not have
jurisdiction or if the claim is time-barred). Likewise, the Chairperson highlighted that, in case the
claim is not affected by any preliminary procedural matters, the FIFA general secretariat would be
ordered to continue the procedure (cf. art. 19 par. 3 of the Procedural Rules).
24. Subsequently, the Chairperson referred to art. 2 par. 1 and art. 24 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
Regulations on the Status and Transfer of Players (March 2022 edition), the DRC would be – in
principle – competent to deal with the matter at stake, which concerns a contractual dispute
between a Brazilian player and an Iranian club.
25. Having established the above and after a thorough analysis of the documentation submitted, the
Chairperson turned its attention to the arguments of the Claimant, and noted that the issue of
“res judicata” appears, and that he must accordingly assess if the claim is affected by any
preliminary procedural matter.
b. As to the alleged debt recognition
26. The Chairperson turned his attention then to the Claimant’s argument that “a new prescription
period of 2 years shall begin as from the date of the debt acknowledgement”, i.e. as from
9 March 2020.
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27. In this respect, the Chairperson carefully analysed the respective document dated 9 March 2020,
and concluded that the Respondent never acknowledged that the claimed amount shall be made
to the Claimant since the said document reads as follows:
“Refer to your email dated 28 January 2020 enclosing the decision of the DRC judge. Please find
attached the bank details, prove of transferring of the amount of 3742200 IRR into account of
Mr. Luciano Pereira Mendes regarding the point 3 of the DRC decision. (IRR 340200 + IRR
340200 of 5%interest for 2 years)”
28. In view of the above, the Chairperson rejected the argumentation of the Claimant that the
Respondent acknowledged the alleged debt towards the Claimant, in that the wording of the cited
document was clear in and of itself.
c. As to the res judicata
29. Afterwards, the Chairperson turned his attention to the argumentation of the Claimant that “the
principle of res judicata shall not apply in the case at hand” and held that he had to establish
whether res judicata existed in the matter at hand.
30. Accordingly, the Chairperson 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.
31. 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. In
particular, the Chairperson 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.
32. Having said that, the Chairperson went on to analyse the evidence on file regarding the previous
decision allegedly passed in an identical matter. In this respect, the Chairperson observed that
indeed a decision had been passed by a competent deciding body – i.e. the DRC Judge – on 21
January 2020 and was by now final and binding.
33. Furthermore, the Chairperson 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 Chairperson 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 Chairman noted
that both the Claimant 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 Chairperson came to the conclusion that the
condition of the identity of parties is fulfilled.
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34. The Chairperson then turned his attention to the criterion of the object of the matter in dispute.
In this respect, he started by acknowledging that the identity of the subject matter is fulfilled if
the reason to claim and the relevant requests of the two claims are similar. When comparing the
First Claim and the one at hand, the Chairperson noted that both of them derived from the total
outstanding amount based on the same contract and contained a request for “remainder of the
remuneration to date”.
35. Consequently, the Chairperson held that both legal actions were based on the Respondent’s
alleged violation of the same employment contract and contained the very same request for relief.
At this point, the Chairperson wished also to point out that the legal representative of the
Claimant acknowledged to have made a “clerical calculation error when lodging the First Claim
before the FIFA DRC.”
36. The Chairperson added that such error could have been amended during the (first) proceedings,
or, within the stipulated deadline, by a CAS Appeal. In this respect the Chairperson was of the
opinion that, at this stage, the Claimant is precluded to lodge a new claim concerning an identical
object.
37. On this note, the Chairperson emphasized that allowing the Claimant to “cure” its procedural flaw
regarding the First Claim and/or failing to appeal the Decision 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.
38. As to the argumentation of the Claimant that FIFA did not adjudicate in the matter, the
Chairperson decided that it cannot be upheld. In this regard, the Chairperson clarified that it was
indeed decided on the matter on 21 January 2020, nonetheless, the DRC Judge could not have
granted more than the Claimant requested, in line with the principle ne eat iudex ultra petita
partium.
39. For the sake of completeness, the Chairperson 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.”
40. On account of the above, the Chairperson concluded that the condition of identity of the object
of the matter in dispute is also fulfilled and, consequently, that both legal actions not only concern
identical parties to the dispute but also identical objects and requests for relief. Therefore, as a
competent deciding body has already dealt with the exact same matter, passing 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.
41. The Chairperson decided that the claim is thus inadmissible.
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d. Costs
42. Finally, the Chairperson 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 Chairperson decided that no procedural costs were to be
imposed on the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Luciano Pereira Mendes, 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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