F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2020-2021) – fifa.com – atto non ufficiale – Decision 24 March 2021

Decision of the

DRC Judge

passed on 24 March 2021,

regarding an employment-related dispute concerning the player Deac Ioan Ciprian

BY:

Daan de Jong (Netherlands), DRC Judge

CLAIMANT:

Deac Ioan Ciprian, Romania

RESPONDENT:

FC Aktobe, Kazakhstan

I. FACTS OF THE CASE

1. On 10 June 2015, the Romanian player, Ioan Ciprian (hereinafter: the Claimant or the player) and the Kazakh club, FC Aktobe, concluded an employment contract (hereinafter: the contract), valid as from the date of its signature until 30 November 2017.

2. However, on 31 December 2015, the parties concluded a termination agreement (hereinafter: the termination agreement), whereby the club undertook to pay to the player the amount of USD 45,556 by 30 April 2016.

3. Clause 5 of the termination agreement reads as follows: “Any litigation between the parties will be solved exclusively by CAS from Lausanne, in English, by a Sole Arbitrator”.

4. In addition, on the same date, the parties concluded an addendum to the termination agreement (hereinafter: the addendum), whereby the parties agreed on the following: “To amend par. 5 of the Agreement as on the following wording: disputes between the Parties to the Employment Contract and Agreement on its Termination are considered by the Court in the city of Aktobe. The applicable law is legislation of the Republic of Kazakhstan, language of the proceeding is Russian. 2. The Parties waive their right to appeal before any other instances to resolve disputes between them”.

5. Subsequently, the player lodged a claim before the NDRC of Kazakhstan, requesting to be awarded the amount of USD 45,556 that allegedly remained unpaid. In this respect, the NDRC of Kazakhstan passed a decision that was notified to the player on 24 March 2017. In the said decision, the NDRC of Kazakhstan declared the claim of the player inadmissible ex. clause 5 of the termination agreement.

6. By means of his statement of appeal dated 28 March 2017, the player appealed the decision passed by the NDRC of Kazakhstan before the competent appeal body within the framework of the Kazakh FA, which rendered a decision on 15 April 2017, overturning the decision passed by the NDRC of Kazakhstan, insofar the latter did not consider the addendum, which granted competence to the “Court in the city of Aktobe”.

7. Conversely, the player “notified the DRC KFF of the reconsideration of the dispute, but then decided to prepare all materials, documents and circumstances for appeal to the legal authorities of FIFA”.

8. Later, also in 2017, the player lodged a claim against the club before the Conciliatory Commission (hereinafter: the Commission) on the resolution of the individual employment disputes of the club, requesting the payment of the amount indicated in the termination agreement. On 7 April 2017, the Conciliatory Commission rejected the claim of the player.

9. On 22 May 2017, the Aktobe state court passed a decision rejecting the player´s claim on the grounds that the compensation clause included in the termination agreement was in contravention of the laws of Kazakhstan.

10. On 25 January 2018, the player lodged a claim against the club before FIFA –claim that was only complete in October 2019– requesting to be awarded outstanding remuneration in the amount of USD 45,556, plus 5% interest p.a. as from the respective due date until the date of effective payment.

11. In his claim, the player firstly stated that the NDRC of Kazakhstan “does not meet the minimum standards for procedural independent arbitration courts as specified in art. 22 b) of the FIFA Regulations on the Status and Transitions of Players, and in accordance with the FIFA 1010 Regulations, [since] it cannot guarantee fairness procedures in relation to foreign players”.

12. Secondly, the Claimant held the following: “The respondent did not comply with the terms of the agreement of 31.12.2015 on the termination of the employment contract, on payment of compensation for the termination of the employment contract, thus violated the agreement reached, without any justified and justifiable reasons”.

13. The Respondent challenged the competence of FIFA to deal with the matter-at hand, on the basis of the following arguments:

- Exclusive jurisdiction of the Courts of Aktobe: By means of the addendum, both parties agreed on submitting any eventual claim before the courts of Aktobe and thereby waived their right to lodge any claim before any other deciding-body. Even if not concluded, the parties “had the standing to sue and be sued in Kazakhstan state courts even without the addendum. The player was the one who filed claims to state court and, therefore, confirmed and accepted the court´s jurisdiction”.

- Res judicata appreciation: The player already lodged 4 different claims within different deciding-bodies at national level; proceedings in which 2 decisions were made as to the substance, i.e. the decision passed by the Commission on 7 April 2017 and the decision passed by the state court of Aktobe (evidence on file), in accordance with which “the club was found not in breach of its obligations”.

- Forum shopping: The Respondent maintained that the player submitted 4 statements (of claims and appeal) against the club before different deciding-bodies and in connection with the same cause, before lodging his claim before FIFA.

- Time bareness: The club held that, insofar the claim only completed his claim on 1 October 2019, his claim is time-barred, since the event giving rise to the dispute occurred on 30 April 2016, i.e. more than 2 years before the player lodged his claim before FIFA.

14. As to the substance, the Respondent maintained that the amount due as per the termination agreement was gross and that taxes at the rate of 20% are applied on personal income in Kazakhstan. Hence, the Respondent requested that, should FIFA consider that the claim is admissible, the Respondent should only be held liable to pay to the Claimant the amount of USD 36,444.80 (45,556*0.8 = 36,444.80).

II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER JUDGE

1. First of all, the Dispute Resolution Chamber judge (hereinafter also referred to as DRC judge) analyzed whether he was competent to deal with the case at hand. In this respect, he took note that the present matter was submitted to FIFA on 25 January 2018 and submitted for decision on 24 March 2021. Taking into account the wording of art. 21 of the January 2021 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.

2. Subsequently, the DRC judge referred to art. 3 par. 1 and 2 of the Procedural Rules and confirmed that, in accordance with art. 24 par. 1 and 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players, the DRC judge is, in principle, competent to deal with the matter at stake, which concerns an employment–related dispute with an international dimension.

3. However, the DRC judge noted that the Respondent challenged the competence of FIFA to adjudicate on the present matter, on the following grounds: 1) that the claim is time-barred, since the event giving rise to the dispute occurred on 30 April 2016, i.e. when the said amount was payable, and the player only lodged his claim before FIFA on 1 October 2019; 2) that FIFA is not competent, insofar the addendum to the termination agreement grants exclusive competence to the courts of Aktobe and, thereby, the player waived his right to lodge any claim before any different deciding body (in particular, the Respondent refers to point 2. of the addendum, which reads as follows: “The Parties waive their right to appeal before any other instances to resolve disputes between them”; 3) that res judicata must be appreciated in the present proceedings, since 2 different deciding bodies have passed decisions on the substance of the present matter, i.e. the Conciliatory Commission on the resolution of the individual employment disputes and the state court of Aktobe; 4) That the player´s conduct falls within the scope of a forum shopping behavior, since he has submitted 4 statements (of claims and appeal, respectively) against the club before different deciding-bodies and in connection with the same cause, before lodging his claim before FIFA.

4. In view of the above-mentioned considerations, the DRC judge undertook a careful analysis of all the allegations and documentary evidence brought forward by the parties in order to assess whether he should deem himself competent to adjudicate upon the present matter.

5. In the first place, the DRC judge noted that the Claimant himself acknowledged having filled a claim before the NDRC of Kazakhstan, as well as a statement of appeal before the competent appeal body incorporated within the framework of the NDRC of Kazakhstan. Moreover, observed the DRC judge, the Respondent provided documentary evidence in support of its allegations that the Claimant further initiated 2 other separate proceedings, one of them before the Conciliatory Commission and another one in front of the state court of Aktobe (both proceedings in Kazakhstan).

6. In this point, being several the reasons invoked by the Respondent in order for the DRC judge to consider that the claim lodged by the player is inadmissible, the DRC judge deemed that a “cascade examination of the admissibility” shall be undertaken. In this sense, the DRC judge pointed out that the first issue to address shall be the time bareness of the claim lodged by the Claimant.

7. In this regard, the DRC judge noted that the Claimant firstly submitted his claim before FIFA on 25 January 2018, i.e. when the present dispute was not time-barred, insofar the 2 years established in art. 25.5 of the Regulations had not yet elapsed. Thus, in spite of the fact that the Claimant only submitted a complete version of his claim on 1 October 2019, the DRC judge decided that –after a careful analysis of the documentation provided to the present proceedings and the steps undertaken by the FIFA administration– the statute of limitations was suspended on the date on which the Claimant submitted his initial statement of claim, i.e. as from 25 January 2018. Hence, the DRC judge concluded that the present claim is not to be considered time-barred ex. art. 25.5 of the Regulations.

8. Secondly –ascertained the DRC judge–, the addendum to the termination agreement shall be considered, insofar the legitimacy of the said document was acknowledged by both parties. As per the said document, noted the DRC judge, the parties granted exclusive competence to the courts of Aktobe (Kazakhstan) to adjudicate on any eventual dispute arisen as per the termination agreement. What is more, the parties did not only choose the competent body, but also chose that the applicable law to the dispute should be the laws of Kazakhstan. The validity of the said addendum being acknowledged, the DRC judge concluded that the parties validly opted out regarding the competence of FIFA to adjudicate on any matter arisen therefrom. In particular –explained the DRC judge–, reference must be made to art. 22 of the RSTP, which recognizes the right of any player or club to seek redress before a civil court for employment-related disputes. In this respect, the DRC judge emphasized that the above-recognized right was not only chosen by the parties within the scope of their autonomy of will, but was also exercised by the player, who –in accordance with the documentation on file– lodged a claim before the state court of Aktobe, which –on 22 May 2017– passed a decision rejecting the player´s claim on the grounds that the compensation clause included in the termination agreement was in contravention of the laws of Kazakhstan.

9. In view of the above, the DRC judge determined that the present claim shall be considered inadmissible, since the state court of Aktobe was the only competent deciding body to adjudicate on the present matter as per the addendum to the termination agreement – which was confirmed by the procedural behavior of the Claimant, who initiated the corresponding proceedings before the said authority.

10. As a result thereof, and in line with the aforementioned “cascade examination of the admissibility”, the DRC judge concluded that there is no need to enter into the analysis of whether there is appreciation of res judicata, since FIFA cannot be competent to decide upon this matter as per art. 22 of the Regulations in connection with the addendum to the termination agreement concluded between the parties.

11. Nevertheless, the DRC judge wished to emphasize that the conduct of the player –choosing different courts to bring an action against the club for the same cause from among those courts that could properly exercise jurisdiction based on a determination of which court is likely to provide the most favorable outcome– falls within a clear behavior of forum shopping, which constitutes an unlawful practice.

12. The DRC judge concluded his deliberations in the present matter stipulating that the claim of the Claimant is –in view of all of the above– inadmissible.

III. DECISION OF THE DRC JUGE

1. The claim of the Claimant, Deac Ioan Ciprian, is inadmissible.

2. This decision is rendered without costs.

For the DRC judge:

Emilio García Silvero

Chief Legal & Compliance Officer

NOTE RELATED TO THE APPEAL PROCEDURE:

According to article 58 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 20 of the Procedural Rules).

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