FIFA - Decisión disputa Da Silva Rodrigues 27062023

REF FPSD-10367

Decision of the Dispute Resolution Chamber passed on 27 June 2023 regarding an employment-related dispute concerning the player Sergio Fernandes da Silva Rodrigues BY: Frans de Weger (Netherlands), Chairperson

CLAIMANT:

Sergio Fernandes da Silva Rodrigues, Portugal Represented by Lucian Novacescu

RESPONDENT:

FC Brasov, Romania Page 2

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I. Facts of the case

1. On 18 June 2013, the Portuguese player Sergio Fernandes da Silva Rodrigues

(hereinafter: the Claimant) and the Romanian club S.C. Fotbal Club Brasov S.A (hereinafter:the Old Club) concluded an employment contract to be valid as from 1 July 2013 until 30 June 2015..

2. On 23 January 2015, the Claimant and the Old Club agreed on the premature termination of their contractual relationship (hereinafter: the Termination

Agreement).

3. Pursuant to the Termination Agreement, the Old Club undertook to pay to the Claimant, by no later than 31 January 2015, the net amount of EUR 36.000.

4. On 4 March 2015, an insolvency proceeding regarding the Old Club was opened by the “Brasov Tribunal for Administrative and Fiscal Matters”.

5. In the context of the insolvency proceeding, the Claimant submitted a request for the registration of his credit of EUR 36,000 towards the Respondent in the relevant creditors table.

6. Accordingly, on 28 October 2015, the Claimant has been registered as “employee creditor” of the Old Club in the “Definitive Consolidation Table” for a total of RON 160,351, which at the time approximately corresponded to EUR 36,000.

7. Following the above, on 20 December 2019, the Municipality of Brasov passed a Decision with respect to the acquisition of the brand - “Fotbal Club Brasov” - at an

auction organized within the insolvency proceedings.

8. On 27 May 2021, the Brasov Municipality adhered to the existing sports association

“Asociația Clubul Sportiv Scotch Club”.

9. On 15 June 2021, the association “Asociația Clubul Sportiv Scotch Club” subsequently changed its name into “Asociatia Clubul Sportiv Fotbal Club Brasov – Steagul Renaste”

(hereinafter: the Respondent).

10. On 25 June 2021, the Brasov Municipality Council approved an agreement between the Respondent and the municipal football club “Club Sportiv Municipal Corona Brasov”, which had just been promoted to the Romanian Second League for the sporting season 2021/2022.

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11. In particular, the Respondent was granted (i) the right to participate in the Romanian second league instead of the municipal football club “Club Sportiv Municipal Corona Brasov“ (the latter also being under the control of the Brasov Municipality), as well as

(ii) any and all assets related to the participation in the Romanian Second League.

12. Subsequently, the Respondent was registered as participant to the Romanian Second League for the 2021/2022 sporting season.

13. On 20 July 2021, the Brasov Municipality granted to the Respondent the right of free usage of the Old Club’s brand, for the sporting season 2021/2022. The year after the same right has been extended up to the end of the season 2024/2025.

14. On 15 December 2022, the Claimant sent a notice to the Respondent, addressing the latter as sporting successor of the Old Club and asking to pay the net amount of EUR 36.000 EUR as outstanding remuneration established under the Termination Agreement and registered within the relevant insolvency proceeding.

II. Proceedings before FIFA

15. On 26 May 2023, the Claimant filed the claim at hand before FIFA. A brief summary of

the claim is detailed in continuation.

16. The Claimant states that the Respondent is the sporting successor of the Old Club, hence he shall be held liable for the financial obligations carried by the latter even after the relevant insolvency proceeding.

17. In this respect, the Claimant argued having exhausted, to no avail, all the internal procedural means to recover his credit, hence he was left with no alternatives but to address FIFA.

18. Based on the foregoing, the Claimant makes the following request for relief: a. “The present Claim filed by Sergio Fernandes da Silva Rodrigues against Asociația Club Sportiv Fotbal Club Brașov – Steagul Renaște shall be upheld.

b. Asociația Club Sportiv Fotbal Club Brașov – Steagul Renaște shall be ordered to pay to the Claimant, within 30 days as from the date of notification of the decision, overdue payables in the net amount of EUR 36.000 EUR (thirty-five thousand EUR). c. A default interest of 5 % per year shall be applied to the overdue amount, calculated from 31 January 2015 until the effective date of payment. Page 4

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d. A disciplinary sanction consisting of a fine in an amount to be established by the Dispute Resolution Chamber of the Football Tribunal shall be imposed upon Asociația Club Spoortiv Fotbal Club Brașov – Steagul Renaște. e. Asociația Club Sportiv Fotbal Club Brașov – Steagul Renaște shall bear all the costs of this arbitration.”

19. On 20 June 2023, the FIFA general secretariat informed the Claimant that his claim had raised a preliminary procedural issue and that the relevant case would have been submitted directly to the Chairperson of the Dispute Resolution Chamber for an expedited decision.

III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

1. First of all, the Chairperson of the Dispute Resolution Chamber (hereinafter: the Chairperson) analysed whether he was competent to deal with the case at hand.

2. In this respect, he took note that the present matter was presented to FIFA on 26 May 2023 and submitted for a preliminary decision on 23 June 2023. 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.

3. 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).

4. Subsequently, 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 (March 2023 edition) the Dispute Resolution Chamber would – in principle – be competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a Portuguese player and a Romanian club.

b. Admissibility Page 5

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5. Notwithstanding the foregoing, the Chairperson noted that an issue regarding the

admissibility of the present claim was identified by FIFA ex officio.

6. In particular, the Chairperson noted that apparently an identical dispute between the parties had already been decided upon by the Brasov Tribunal for Administrative and Fiscal Matters on 28 October 2015 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.

7. In view of the above, the Chairperson held that he had to establish whether he could enter the substance of the matter and pass a decision, considering the general principle of res judicata. 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.

8. 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 Brasov Tribunal for Administrative and Fiscal Matters Resolution – on 28 October 2015 and that such decision has become final and binding.

9. 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 Respondent (addressed by the same Claimant as the successor of the Old Club) 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.

10. 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 similar.

When comparing the claim previously lodged in front of the Brasov Tribunal for Administrative and Fiscal Matters and the one at hand, the Chairperson noted that both of them derived from the Termination Agreement stipulated on 23 January 2015 and contained a request for the payment of the relevant outstanding sum of EUR 36,000. Consequently, the Chairperson held that both legal actions were based on the Page 6

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Respondent’s alleged violation of the same employment contract and contained the very same request for relief. Thus, the Chairperson concluded that the condition of identity of the object of the matter in dispute is also fulfilled.

11. 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].”

12. 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. c. Costs

13. 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. Page 7

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IV. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Sergio Fernandes da Silva Rodrigues, is inadmissible.

2. This decision is rendered without costs.

For the Football Tribunal: Emilio García Silvero

Chief Legal & Compliance Officer Page 8

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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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