FIFA - Decisión disputa Leko 27062023

REF FPSD-10365

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

CLAIMANT:

Mislav Leko, Croatia Represented by Lucian Novacescu

RESPONDENT:

FC Brasov, Romania Page 2

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I. Facts of the case

1. On 15 January 2014, the Croatian player Mislav Leko (hereinafter: the Claimant) and the Romanian club S.C. Fotbal Club Brasov S.A (hereinafter: the Old Club) concluded an employment contract (hereinafter: the Contract) to be valid as from the same date until 30 June 2015.

2. Pursuant to the Contract, the Old Club undertook to pay to the Claimant the following sums: “a) For the period 15.01.2014 – 30.06.2014, THE PLAYER will receive the amount of EURO 22.000 (forty four thousand Euro) net, payable 4000 euro monthly in equal parts. b) For the period 01.07.2014 – 30.06.2015 THE PLAYER will receive the amount of EURO 48.000 (forty eight thousand Euro net), payable monthly in equal parts. (...) 2.1 In addition to the amount stipulated at point 2 THE PLAYER will benefit during each season the bonuses according with Internal regulation of FC Brasov. 2.2 F.C. Brasov will pay to the player during the contract period, 200 euro / month to rent a house.”

3. On 8 December 2014, the Claimant filed a claim against the Old Club before the National Chamber for Dispute Resolution of the Romanian Football Federation

(hereinafter: the NDRC of the RFF), requesting the payment by the Old Club of the following sums:

• “monthly remuneration of 4.000 EUR net per month, owed for the months of June 2014, July 2014, August 2014, September 2014, October 2014 and November 2014, in the total net amount of 24.000 EUR; • rent allowance for the period between March 2014 and November 2014, in the total amount of 1.800 EUR net, as per Article 2.2 of the Contract.”

4. On 14 January 2015, the NDRC of the RFF passed a decision and accepted the Claimant’s request in its entirety.

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

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6. In the context of the insolvency proceeding, on 31 March 2015, the Claimant submitted a request for the registration of his credit of EUR 25,800 towards the Respondent in the relevant creditors table.

7. 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 194,859.76, which at the time approximately corresponded to EUR 38,400.

8. 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.

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

“Asociația Clubul Sportiv Scotch Club”.

10. 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).

11. 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.

12. 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.

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

14. 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 was extended up to the end of the season 2024/2025.

15. On 22 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 EUR 55,200 as outstanding remuneration under the Contract.

16. In this context, the Claimant clarified to the Respondent that the claimed sum had been partly registered as outstanding credit in the Definitive Consolidation Table of

Page 4 REF FPSD-10365 creditors of the Old Club (i.e., EUR 38,400) while the residual amount of EUR 16,800 had become due after the relevant insolvency proceeding.

II. Proceedings before FIFA

17. On 26 May 2023, the Claimant filed the claim at hand before FIFA against the Respondent. A brief summary of the claim is detailed in continuation.

18. 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.

19. 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.

20. Based on the foregoing, the Claimant makes the following request for relief: a. “The present Claim filed by Mislav Leko 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 55,200 EUR (..) c. A default interest of 5 % per year shall be applied to the overdue amount (..) until the effective date of payment. 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.”

21. 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.

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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 Croatian player and a Romanian club.

b. Admissibility

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. The Chairperson noted equally that a decision by the NDRC of the RFF had also been passed in connection with obligations arising from the Contract.

7. In view of the above, the Chairperson held that he had to establish whether the claim was affected by a preliminary procedural matter in light of the principle res judicata.

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Accordingly, the Chairperson deemed it appropriate to briefly recall that, on the basis of the principle of res judicata, that 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.

This, without mention of the decision rendered by the NRDC of the RFF.

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 the Claimant and Old Club were the parties in the proceedings leading to the decision previously rendered. In what concerns the case at hand, the Chaiperson is conscious that the Respondent and the Old Club have been framed by the Claimant as the same entity in that the Respondent is the sporting

successor of the Old Club and thus allegedly responsible for the debts of the Old Club. In other words, the Claimant deems that the Respondent and the Old Club are one in the same and both responsible for complying with the obligations deriving from the Contract. As a consequence, the Chairperson concluded that the condition of the identity of parties is fulfilled since the Claimant deems that the Old Club and the Respondent are the same.

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 derived from the Contract stipulated by the parties on 15 January 2014 and contained a request for the payment of obligations arising thereto amounting to EUR 38,400. Consequently, the Chairperson 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 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].”

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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.

13. Furthermore, for what concerns the residual amount of EUR 16,800 demanded by the Claimant in his requests for relief, which, as per clarification of the latter, became due only after the relevant credit’s registration in the insolvency proceeding, the Chairperson noted that the present claim was lodged in front of FIFA on 26 May 2023, whereas the said sums had become collectible in 2015 and the Claimant was evidently aware of it.

14. While the Chairperson was not fully persuaded that these concepts were not included in the decision rendered in the context of the insolvency proceedings filed in Romania, he recalled the wording of art. 23 par. 3 of the March 2023 edition of the Regulations, which clearly stipulates that “The Football Tribunal shall not hear any case subject to these regulations if more than two years have elapsed since the event giving rise to the dispute. Application of this time limit shall be examined ex officio in each individual case”.

15. Bearing in mind the foregoing, even if not affected by res judicata – quod non –, the Chairperson concluded that the present (residual) claim appears to be affected by the statute of limitations of 2 years, as stipulated in the Regulations and therefore results inadmissible.

16. To this extent and for the sake of completeness, the Chairperson also referred to the principle of preclusion, which as a general principle of law, denotes that the parties must (procedurally) act in good faith and file the entirety of their requests in the appropriate time, under penalty of being prohibited from doing so at a later stage.

Equally, the Chairperson noted that the fact that the Claimant had started multiple proceedings at domestic level to later present this claim before the Football Tribunal also contained elements of the practice known as forum shopping. However, given the reasoning outlined above, the Chairperson found it unnecessary to further elaborate on these issues in that the claim of the Claimant is inadmissible.

17. The Chairperson remarked that any different conclusion from the one above would jeopardize the spirit of the Procedural Rules insofar as parties would be able to file independent claims as they please, which contravenes not only the principles of good procedural order and procedural economy, but would jeopardize due process and, ultimately, legal certainty within the FIFA dispute resolution system.

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c. Costs

18. 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, Mislav Leko, is inadmissible.

2. This decision is rendered without costs.

For the Football Tribunal: Emilio García Silvero

Chief Legal & Compliance Officer Page 10

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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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