Labour Disputes
Texto da decisão
REF. FPSD-14870
Decision of the
Dispute Resolution Chamber
passed on 14 November 2024
regarding an employment-related dispute concerning the Player Kevin Varga
COMPOSITION:
Clifford J. Hendel (USA & France), Deputy Chairperson
Gonzalo de Medinilla (Spain), Member
Iñigo Riestra (Mexico), Member
CLAIMANT:
Kevin Varga, Hungary
Represented by Mr Talat Emre Koçak
RESPONDENT:
Kasımpaşa AŞ, Türkiye
Represented by Mr Ercan Sevdimbaş
pg. 2
REF. FPSD-14870
I. Facts of the case
1.
On 2 September 2020, the Hungarian player Kevin Varga (hereinafter: Claimant or player) and
the Turkish club Kasimpasa AS (hereinafter: club or Respondent) concluded an employment
contract (hereinafter: the Contract) valid as from the date of signature until 30 June 2023.
2.
In accordance with the Contract, the Respondent inter alia undertook to pay the Claimant the
following remuneration:
For the 2021/2022 season:
- Gross amount of EUR 94,647.97 as advance payment due on 20 August 2021
- Gross amount of EUR 856,693.25 divided into 10 equal monthly instalments between August
2021 and May 2022, due on the 10th day of the following respective month
For the 2022/2023 season:
- Gross amount of EUR 94,647.97 as advance payment due on 20 August 2022
- Gross amount of EUR 857,422.47 divided into 10 equal monthly instalments between August
2022 and May 2023, due on the 10th day of the following respective month
3.
Subject to the Contract, the parties established that the Contract may be extended for one
further year – i.e., until 30 June 2024 – subject to the conditions outlined in art. 12 thereunder.
4.
According to art. 12 of the Contract, the parties established the following financial terms in
case the term of the Contract was to be extended:
-
5.
Gross amount of EUR 118,908.04 as an advance payment, due on 20 August 2023;
Gross amount of EUR 1,071,219.02 divided into 10 equal monthly instalments between August
2023 and May 2024, due on the 10th day of the following respective month.
Moreover, according to art. 9 of the Contract, the following clause was agreed upon:
“This contract cannot be unilaterally terminated during the course of a season and before expiry of
its term, save for the following cases:
-
6.
By mutual termination; or
For “just cause”, by either of the parties, pursuant to art. 14 of the FIFA Regulations on the Status
and Transfer of Players.
If the player fails to attend the club without authorization and without a valid reason for a period
of at least three (3) consecutive days, the club has the right to serve a two (2) day notice to the player
(which must be served in writing to him, to remedy his actions (apart of the club’s right to fine the
player and to withhold the relevant portion of his wages). If, notwithstanding the notice, the player
fails to resume duty, the club shall be entitled to terminate the employment relationship for just
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REF. FPSD-14870
cause, with immediate effect. In such event, the player shall immediately pay compensation to the
club amounting to EUR 1,000,000 (one million euros). An interest rate of 10% per year shall apply
in case of delay of payment. Claims for damages based on other legal grounds remain reserved.”
7.
At an unspecified date, the Claimant filed an application before the Turkish execution office
under the reference 2022/761 requesting EUR 287,511.74.
8.
On 10 May 2022, the Turkish execution office issued a decision, cancelling the prosecution
against the Respondent.
9.
On 2 June 2022, the Claimant lodged a second petition before the Turkish execution office,
requesting an amount of TRY 5,082,151.13 (or the equivalent of EUR 288,151.13).
10. On 15 June 2022, the execution office stayed the proceedings initiated on 2 June 2022.
11. On 16 June 2022, the Claimant put the Respondent in default and requested payment of EUR
280,000, granting a deadline of 15 days to remedy the default.
12. On 1 July 2022, the Turkish execution office issued a decision, confirming that the amount of
TRY 4,839,403.91 shall be paid to the Claimant.
13. On the same day, the Respondent made a payment to the Turkish execution office in the exact
amount ordered by the execution office above.
14. On 6 July 2022, the Claimant unilaterally terminated the Contract due to overdue payables.
15. On 7 July 2022, the Turkish Football Federation acknowledged receipt of the termination letter
and confirmed registration thereof in its system.
16. On 28 July 2022, the Claimant signed an employment contract with the Turkish club Hatayspor.
17. On 14 February 2023, the Claimant and Hatayspor concluded a “mutual termination
agreement” terminating their contractual relationship.
18. On 15 February 2023, the Claimant concluded an employment contract with the Hungarian
club Debrecen.
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REF. FPSD-14870
II. Proceedings before FIFA
19. On 6 June 2024, the Claimant filed the claim at hand before FIFA. A summary of the parties’
position is detailed below.
a. Position of the Claimant
20. In his claim, the player argued that the Respondent failed to comply with the financial
obligations of the Contract, more specifically an amount of EUR 280,000 which
corresponded to more than two monthly salaries, despite being granted a deadline of more
than 15 days to remedy the default.
21. The Claimant did not include any overdue payables as part of his claim, emphasised
however that he is entitled to the residual value of the Contract as compensation, which
should include the optional year of 2023/2024, which he would have been entitled to, were
it not for the bad faith of the Respondent in not complying with its obligations.
22. The Claimant made no particular comments as to the admissibility or jurisdiction of FIFA in
his claim.
23. Consequently, the following request for relief was formulated by the Claimant:
-
EUR 952,070.45 compensation for 2022/2023 season;
EUR 1,189,528.98 compensation for 2023/2024 season;
EUR 321,500.28 additional compensation;
Interest of 5% p.a..
b. Position of the Respondent
24. In its reply, the Respondent challenged the admissibility of the claim in light of the previous
case between the parties with reference FPSD-10899 and current proceedings before the
local Turkish legal authorities.
25. The Respondent invoked not only res iudicata, but also forum shopping, referring to the
aforementioned decision by the DRC.
26. The Respondent also pointed out that it filed a petition in Türkiye seeking a declaration that
no compensation was payable, and that, most recently, the parties entered a mediation in
this respect, which was unsuccessful.
27. Thus, the Respondent requested for the claim to be dismissed.
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REF. FPSD-14870
c. Replica of the Claimant
28. In his replica, the Claimant emphasised that the previous claim with reference FPSD-10899
concerned only outstanding salaries and not compensation for breach of contract –
meaning that the present claim is “completely different” and with “no link” to the first case.
29. The Claimant equally stressed that the Turkish dispute resolution system is very slow and
susceptible to an appeal to CAS upon rendering a final decision, which would cause a delay
and/or denial of justice.
30. The Claimant also pointed out that there are “no compelling reasons” to suspend the
present proceedings, subsequently denying that there is a claim related to his present
petitum before the judicial instances in Türkiye.
31. Thus, the Claimant insisted on the admissibility of his claim and his initial request for relief.
d. Duplica of the Respondent
32. In its duplica, the Respondent reiterated most of its previous arguments, further stressing
that:
-
The Claimant lodged a claim within the Turkish judicial system and, shortly
thereafter, sent his default notice for outstanding salaries, manifesting his intention
to pursue his rights in Türkiye as opposed to FIFA;
-
The Respondent, due to public pressure caused by the claim before the Turkish
execution office, made payments in respect of the amounts sought by the Claimant
to the execution office on the same day the order for execution was made – and
prior to the contractual termination;
-
As the execution office was subsequently responsible for remitting the amounts to the
Claimant – since he was the one that sought out the execution office to begin with, the
contractual obligations of the Respondent were fully met. Thus, for the sake of
completeness, the Respondent argued that the termination of the Contract was without
just cause by the Claimant.
pg. 6
REF. FPSD-14870
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
33. First of all, the Dispute Resolution Chamber (hereinafter: the Chamber or DRC) 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 6 June 2024 and submitted for decision on 14
November 2024. Taking into account the wording of art. 34 of the March 2023 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.
34. 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
Regulations on the Status and Transfer of Players (June 2024 edition), the Dispute
Resolution Chamber is – in principle – competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension between an
Hungarian player and a Turkish club.
35. Notwithstanding, the Chamber did not fail to take note of the Respondent’s challenge as to
the claim’s admissibility, in particular on account of the doctrine of res iudicata, whereby
the Football Tribunal would no longer be allowed to deal with the claim at stake since an
identical dispute between the same parties would purportedly already have been decided
by a competent decision-making body.
36. In view of the above, the Chamber held that it had to establish whether, considering the
general principle of res iudicata, it could enter the substance of the matter and pass a
decision on the merits of the case.
37. Having said that, the Chamber went on to analyse the evidence on file regarding the
previous decision allegedly passed in an identical matter. In this respect, the Chamber
observed that indeed a decision had been passed by a competent deciding body – i.e. the
Dispute Resolution Chamber of the Football Tribunal – on 11 January 2024, which was by
now final and binding. The Chamber noted that such claim was declared inadmissible on
the grounds of forum shopping.
38. Furthermore, the Chamber 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 Chamber 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
Chamber 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 Chamber
came to the conclusion that the condition of the identity of parties is fulfilled.
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REF. FPSD-14870
39. The Chamber then turned its attention to the criterion of the object of the matter in
dispute. In this respect, it 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 claim previously lodged in front of the Dispute Resolution Chamber
and the one at hand, the Chamber noted that both of them derived from the payment of
outstanding salaries, as well as compensation due to the Respondent’s alleged breach of
the contract dated 2 September 2022, ultimately containing an identical request for:
-
EUR 952,070.45 compensation for 2022/2023 season;
EUR 1,189,528.98 compensation for 2023/2024 season;
EUR 321,500.28 additional compensation;
Interest of 5% p.a..
40. Consequently, the Chamber 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. Thus, the Chamber concluded that the condition of identity of the object of the
matter in dispute is also fulfilled.
41. For the sake of completeness, the Chamber took note of the Claimant’s assertion that the
present case is “completely different” and bears “no link” to the previous one because he,
at present, “only requests compensation for 2022-2023 and 2023-2024 football seasons” –
a conclusion which the Chamber could only find erroneous, since the request for relief in
the present case contained not only the exact contractual concepts, but also the same
exact amounts, minus the request for the loss of value of the Turkish Lira for the previously
paid amount to the Claimant of EUR 121,406.10, as the request contained in the case
FPSD-10899.
42. In the Chamber’s view, the exclusion of said amount did not affect the clear replication of
the other instalments requested – which did fall within the ambit of the identity of object
and the principle of res iudicata.
43. Lastly, but not less importantly, the Chamber 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.”
44. On account of the above, the Chamber concluded that both legal actions not only concern
identical parties to the dispute but also identical objects and requests for relief.
45. 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. The claim is thus
inadmissible.
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REF. FPSD-14870
b. Costs
46. 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.
47. 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.
48. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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REF. FPSD-14870
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Kevin Varga, is inadmissible.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-14870
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
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