DRC - Preliminary Decisions
Texto da decisão
REF FPSD-14347
Decision of the
Dispute Resolution Chamber
passed on 30 April 2024
regarding an employment-related dispute concerning the player
Brayan Josue Velasquez Moya
BY:
Frans de Weger (the Netherlands), Chairperson
CLAIMANT:
Clube Desportivo 1 de Agosto, Angola
Represented by Domingos Silva Alves
RESPONDENT:
Brayan Josue Velasquez Moya, Honduras
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I. Facts of the case
1.
In 2019, the Honduran player Brayan Josue Velasquez Moya (hereinafter: the Player or the
Respondent) and the Venezuelan club Fundación Deportiva Sport Zulia (hereinafter: Zulia),
concluded an employment contract valid until December 2020.
2.
On 9 March 2020, Zulia and the Player concluded a mutual termination agreement, by
means of which the relevant employment contract was terminated as from said date.
3.
Notwithstanding the above, on the same date the parties concluded a new employment
contract valid as from 1 January 2021 to 31 December 2022.
4.
On 1 May 2020, the Angolan club Clube Desportivo 1 de Agosto (hereinafter: the Claimant
or the Club) and the Player concluded an employment contract valid from 1 July 2020 until
31 May 2022.
5.
In accordance with the information retrieved from the FIFA Matching System (TMS), on 29
August 2020, the Player was registered with the Claimant as “out of contract” as outlined
in the relevant transfer instruction (TMS Ref. 306399).
6.
On 27 May 2021, Zulia lodged a claim before the FIFA Football Tribunal against the Player
and the Claimant for breach of contract without just cause (hereinafter: the Zulia Claim).
7.
On 29 July 2021, the FIFA Dispute Resolution Chamber (DRC) passed a decision by means
of which it determined that the Player had terminated the employment contract with Zulia
without just cause, hence it established that the Player and his new club, i.e. the Claimant,
were jointly liable for the payment of compensation to Zulia in the amount of USD 120,000
(hereinafter: the DRC Decision).
8.
The Claimant initially filed an appeal with the Court of Arbitration for Sports (CAS) against
the DRC Decisio; however it later withdrew said appeal which led CAS to issue a
termination order on 30 December 2021.
9.
On 11 April 2022, the Claimant, the Player, and Zulia signed a tripartite agreement
(hereinafter: the Payment Agreement) whereby it has been agreed that the Player and the
Claimant shall pay 50% each of the amount awarded to Zulia as compensation per the
DRC Decision (i.e., USD 60,000 each).
10. On 26 May 2022, the Claimant paid USD 60,000 to Zulia.
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II. Proceedings before FIFA
11. On 9 April 2024, the Claimant filed the claim at hand before FIFA. A brief summary of the
claim is detailed in continuation.
12. According to the Claimant, the Player maliciously omitted having signed a new
employment contract with Zulia at the time of signing his labour agreement with the
Claimant, hence the latter would have played no active role in the Player’s breach of
contract assessed by the DRC in the context of the Zulia Claim.
13. Accordingly, the Claimant argued having been obliged to pay part of the compensation
due to Zulia because of the legal presumption of joint liability foreseen under the relevant
FIFA regulations in such cases of termination of a contract without just cause. The
Claimant however held that the Player shall be eventually deemed as the sole actual
debtor in the case at stake.
14. In this respect, the Claimant therefore sustained being entitled to a reimbursement by
the Player of the relevant monies paid to Zulia, based on the Swiss Code of Obligations.
15. Based on the foregoing, the Claimant makes the following request for relief:
“a) Recognizing the Claimant's right to receive from the Respondent the amount of USD
60,000.00 (sixty thousand dollars) concerning its right of return as a joint and several
debtor;
b) Determining the Respondent to proceed with the prompt payment of the amount of USD
60,000.00 due to the Claimant, increased by 5% of interest per annum counting from that
date”.
16. On 16 April 2024, the 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 statute of
limitations of 2 years appears to have elapsed.
17. On 23 April 2024, the Claimant reiterated its position as to the admissibility of the claim,
arguing that the event giving rise to the dispute would date back to the date in which the
Claimant executed the payment in favour of Zulia only, i.e., on 26 May 2022
18. In light of the above, the Claimant insisted that FIFA was competent to hear the dispute
and requested the Football Tribunal to issue a formal decision on the matter.
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III. Considerations of the Dispute Resolution Chamber
a. Competence, admissibility, and applicable legal framework
19. First of all, the Chairperson of the DRC (hereinafter: the 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 9 April 2024
and submitted for a preliminary decision on 30 April 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.
21. The Chairperson confirmed that, in accordance with art. 19 par. 1 and 2 of the Procedural
Rules, he is competent to decide, in an expedited manner, whether the case at stake is
affected by any preliminary procedural matter (i.e., if the Football Tribunal obviously does
not have jurisdiction or if the claim is obviously 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 line with the foregoing, the Chairperson noted that an issue regarding the admissibility
of the present claim was identified by FIFA ex officio.
23. In particular, after having carefully studied the claim and the corresponding evidence on
file, the Chairperson noted that this a claim for reimbursement lodged by the Player’s
former club (i.e., the Claimant) based on the DRC Decision which was issued in the
previous employment-related dispute between Zulia, the Player and the Claimant, and
found the latter jointly liable with the Player for breach of contract without just cause,
based on art. 17 par. 4 of the FIFA Regulations on the Status and Transfer of Players
(hereinafter: the Regulations).
24. In this respect, the Chairperson also noted that the appeal proceedings against the DRC
Decision initiated by the Claimant before CAS were terminated as confirmed by the
relevant termination order dated 31 December 2021.
25. Accordingly, the Chairperson ascertained that the DRC Decision has become final and
binding, and, as such, FIFA would no longer be allowed to deal with the claim at stake by
virtue of the application of the legal principle of res judicata.
26. 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
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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.
27. 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 – on 29 July 2021 and that such decision has since become final and binding.
28. 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, he 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
Chairperson noted that both the Claimant and the Player were among the parties in the
proceedings leading to the decision previously rendered by the DRC 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.
29. 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 object is
fulfilled if the reason to claim and the relevant requests of the two claims are identical.
When comparing the claim previously lodged in front of the DRC and the one at hand, the
Chairperson noted that both of them derived from the breach without just cause of the
employment contract concluded between the Player and Zulia and the subsequent
request for payment of a compensation in favour of the latter. In this regard, the
Chairperson wished to emphasize that the Claimant’s financial obligation towards Zulia
would derive exclusively from the event of the contractual breach without just cause
assessed by the DRC and not from a specific agreement signed with the Player.
30. In facts, the Chairperson remarked that art. 17 par. 4 of the FIFA Regulations stipulates
that “it shall be presumed, unless established to the contrary, that any club signing a
professional who has terminated his contract without just cause has induced that professional
to commit a breach”.
31. With the above in mind, the Chairperson pointed out that the Claimant was properly
invited to file its position (as it did) during the employment-related dispute in the context
of the Zulia claim and on that occasion the Claimant had failed to rebut the
aforementioned presumption of joint liability under the Regulations.
32. Thus, the Chairperson concluded that the condition of identity of the object of the matter
in dispute is also fulfilled, even if the Claimant now frames it as right to recourse against
the Player for having breached the relevant employment contract without just cause. In
this respect, the Chairperson wished to outline that the core element of the claim now
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submitted by the Claimant is an attempt to re-litigate its joint responsibility regarding the
breach of the employment contract between the Player and Zulia. The Chairperson
underlined accordingly that the DRC Decision has already determined that both the
Claimant and the Player are jointly and severally liable for said breach, and the DRC
cannot now re-examine such liability (and the corresponding consequences).
33. 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].”
34. Therefore, as a competent deciding body has already dealt with the exact same matter,
having passed 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.
35. On account of the above, the Chairperson concluded 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. The claim is thus
inadmissible.
36. Given the above considerations, the Chairperson confirmed that from every angle, the
claim of the Claimant is inadmissible. This suffices that other issues such as the
prescription can remain open.
b.
Costs
37. 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 Claimant.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Clube Desportivo 1 de Agosto, 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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