DRC - Preliminary Decisions
Texto da decisão
REF FPSD-5847
Decision of the
Dispute Resolution Chamber
passed on 06 May 2022
regarding an employment-related dispute concerning the player Kossi Prince
Segbefia
BY:
Frans de Weger, the Netherlands
CLAIMANT:
Altay Spor Kulubu, Turkey
RESPONDENT:
Kossi Prince Segbefia, Togo
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I.
Facts of the case
1.
On 1 January 2020, the Turkish club, Altay Spor Kulubu (hereinafter: Altay or the Claimant),
and the Togolese player, Mr Kossi Prince Segbefia (hereinafter: the player or the Respondent),
concluded an employment contract valid as from the date of signature until 31 May 2021
(hereinafter: the employment contract).
2.
On 20 August 20220, the player notified Altay of the premature termination of the
employment contract due to overdue payables.
3.
On 28 August 2020, the player initiated a new employment relationship with the Turkish
club, Tuzlaspor valid until 31 May 2021.
4.
On 23 September 2020, the player filed a claim against Altay before the FIFA Dispute
Resolution Chamber (DRC). Accordingly, he requested to be awarded outstanding
remuneration and compensation for breach of contract. The case was filed under ref. no. 2001371.
5.
On 25 March 2021, the DRC issued its decision in connection to the abovementioned case,
the grounds of which were notified to the parties on 4 June 2021 (hereinafter: the DRC
Decision).
6.
In accordance with the DRC Decision, Altay was deemed liable for breach of contract and
ordered to pay the player EUR 95,000 as outstanding remuneration plus EUR 180,000 as
compensation for breach of contract.
7.
Specifically regarding the compensation, the DRC Decision stated the following vis-à-vis the
content of art. 17 of the FIFA Regulations on the Status and Transfer of Players (RSTP):
a. the residual value of the employment contract with Altay amounted to EUR
180,000;
b. the player was able to mitigate his damages with Tuzlaspor, earning EUR 50,000
for the overlapping period in accordance with the employment agreement signed
between the parties. Consequently, the mitigated compensation amounted to EUR
130,000;
c. due to the fact that the termination took place due to overdue payables, the player
would be entitled to additional compensation equivalent to 3 monthly salaries of
EUR 62,500;
d. however, taking into consideration that the final compensation could not exceed
the residual value of the employment contract, Altay would in fact be liable to pay
the player EUR 180,000 as compensation for breach of contract plus 5% interest
p.a. as from the date of the claim.
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8.
On 24 June 2021, Altay lodged an appeal against the DRC Decision before the Court of
Arbitration for Sport (CAS). Said appeal was processed under ref. no. CAS 2021/A/8087.
9.
In parallel, on 13 September 2021, the player lodged another claim before the FIFA DRC, this
time for outstanding remuneration only and against Tuzlaspor. In this context, the player filed
a copy of the employment agreement as well as of a private agreement (i.e. image rights
agreement) concluded with Tuzlaspor and argued that part of his remuneration had not been
properly delivered. The case was filed under ref. no. FPSD-3657.
10. On 15 December 2021, the FIFA DRC issued its decision in case FPSD-3657, the grounds of
which were notified to the parties on 24 January 2022. In this context, the DRC decided that
the image rights agreement concluded between the player and Tuzlaspor was rather “a
separate agreement to the employment contract, i.e. directly linked to the services of the
[player] as a player”. Therefore, the DRC established that said image rights agreement should
be considered while assessing the claim submitted by the player.
11. As a consequence of the above, Tuzlaspor was ordered to pay the player EUR 55,000 as
outstanding remuneration, comprising both the amounts set out in the employment
agreement and in the image rights agreement signed between the player and Tuzlaspor.
12. Subsequently, on 11 April 2022, CAS issued its award in case CAS 2021/A/8087 (hereinafter:
the CAS Award). Accordingly, the Sole Arbitrator confirmed the content of the DRC Decision
and ruled that the appeal filed by the club should be entirely dismissed.
II. Proceedings before FIFA
13. On 26 April 2022, Altay filed the claim at hand before FIFA.
14. In its claim, Altay referred to the DRC Decision in combination with the CAS Award, and
claimed that the compensation for breach of contract was overpaid to the player. In particular,
Altay pointed out that the calculation of such compensation did only take into consideration
the remuneration earned with Tuzlaspor as per the employment agreement, however failed
to consider the amounts described in the image rights agreement also concluded between
the same parties – as disclosed in case ref. no. FPSD-3657.
15. In light of the above, Altay argued that the player unjust enriched on the total amount of EUR
50,000, corresponding to his remuneration with Tuzlaspor under the image rights agreement
– which was not taken into consideration for the mitigation in case 20-01371.
16. Therefore, Altay referred to Swiss Law and CAS jurisprudence on the matter and concluded
that it should be awarded EUR 50,000 plus 5% interest p.a. as from the date of the claim.
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17. On 28 April 2022, the FIFA general secretariat informed the club that the Football Tribunal
did not appear to be competent to deal with the case at stake as the DRC appear to have
already rendered a decision with respect to the dispute opposing the aforementioned parties,
which was also appealed to CAS.
18. On 30 April 2022, Altay reiterated his position as to the admissibility of the claim. In this
respect, Altay stressed inter alia that “even if the parties are the same, the matter is totally
different”. Likewise, Altay insisted that FIFA was competent to hear the dispute.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
19. First of all, the Chairperson of the Dispute Resolution Chamber (hereinafter also referred to
as Chairperson) analysed whether he was competent to deal with the case at hand.
20. In this respect, he took note that the present matter was presented to FIFA on 26 April 2022
and submitted for a preliminary decision on 6 May 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.
21. 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).
22. In continuation, the Chairperson 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 (edition March 2022), the Dispute Resolution Chamber
would be in principle competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a Togolese player and
a Turkish club.
23. Thereafter, the Chairperson referred to art. 2 par. 1 of the Procedural Rules and determined
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 (March 2022 edition), the aforementioned edition of said
regulations (hereinafter: the Regulations) is also applicable to the matter at hand.
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24. In continuation, the Chairperson recalled the basic principle of burden of proof,
as stipulated in art. 13 par. 5 of the Procedural Rules, according to which a party claiming a
right on the basis of an alleged fact shall carry the respective burden of proof. Likewise, the
Chairperson stressed the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which
he may consider evidence not filed by the parties, including without limitation the evidence
generated by or within the Transfer Matching System (TMS).
25. The foregoing having been established, the Chairperson turned his attention to Altay’s
statement of claim and underlined that the case at hand pertains to a claim lodged by Altay
against the player in connection with the decision issued by the DRC on 23 September 2020
and confirmed by the CAS Award on 11 April 2022.
26. After a thorough analysis of Altay’s submissions, the Chairperson noted that the club claims
to be entitled to EUR 50,000, corresponding to part of the amount allegedly overpaid to the
player as compensation for breach of contract. What is more, the Chairperson observed that
Altay stresses that such compensation was miscalculated (by both the DRC and CAS) due to
the fact that the player failed to provide a copy of the image rights agreement concluded
with Tuzlaspor – which should have been taken into consideration for mitigation purposes.
27. By taking due note of the above, the Chairperson first of all considered that it was his task to
establish whether, considering the general legal principle of res judicata, he can enter the
substance of the matter. 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. Equally, the Chairperson 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.
29. The Chairperson confirmed that such approach is consistent with the spirit of the Regulations,
which do not foresee the possibility for any other FIFA deciding body to reassess a final and
binding decision. Equally, he stressed that the Procedural Rules do also not provide for the
possibility for reconsideration of such decision based on a new application.
30. To this end, the Chairperson recalled that the principle of res judicata is applicable if
cumulatively and necessarily the parties to the disputes, the object of the matter in dispute,
and the cause of action are identical (respectively, eadem personae, eadem res, and eadem
causa petendi).
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31. In this respect, the Chairperson highlighted that the criterion of the identity of the parties is
given if the parties to the disputes are the same. Having said this, the Chairperson noted that
both the club and the player were the parties in the proceedings leading to DRC Decision. As
a consequence, considering that the parties to both disputes are the same, the Chairperson
concluded that the condition of the identity of parties is fulfilled.
32. Subsequently, the Chairperson turned his attention to the criterions of the object of the
matter in dispute as well as the cause of action. In doing so, he recalled that in accordance
with the jurisprudence of the Football Tribunal, confirmed by CAS and the Swiss Federal
Tribunal, “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”.
33. On this note and while comparing the claim previously lodged by the player in front of the
DRC to the one at hand, the Chairperson acknowledged that both of them derived from the
premature termination of the employment contract concluded between the parties on 1
January 2020 and the consequences thereto.
34. In particular, the Chairperson was of the opinion that the claim at hand intends to rediscuss
and/or review the amount of compensation for breach of contract that was already awarded
by the DRC to the player in the DRC Decision and subsequently confirmed by the CAS Award.
The causa petendi of the claim at hand is the mitigation to be considered in light of the
player’s new employment relationship with Tuzlaspor, and the object of both claims is the
same: the amount of compensation that the player is entitled to receive from Altay due to
the latter’s breach of contract.
35. Consequently, the Chairperson decided that the conditions of identity of the object of the
matter and the corresponding causa petendi in the dispute are also fulfilled.
36. On account of the above, the Chairperson decided that since a competent deciding-body (i.e.
the DRC) has already dealt with the exact same matter, passing a final and binding decision
between the same parties, regarding the same legal pleadings, entering into the substance
of this dispute would contravene not only the principle of res judicata but also the legal
certainty of proceedings before FIFA.
37. The Chairperson decided that thus the Altay’s claim is inadmissible.
38. Lastly, 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 Altay.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Altay Spor Kulubu, 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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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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