FIFA - Decisión disputa López Martínez 26052023

REF. FPSD-9038

Decision of the Dispute Resolution Chamber passed on 26 May 2023 regarding an employment-related dispute concerning the player Hugo López Martínez BY: Frans DE WEGER (The Netherlands), Chairperson Mario FLORES CHEMOR (Mexico), member Roy VERMEER (The Netherlands), member

CLAIMANT:

Dhofar Sporting Club, Oman Represented by Sport Makers (Mr Nasr El Din Azzam)

RESPONDENT:

Hugo López Martínez, Spain Represented by Ms Rosalia Ortega Pradillo pg. 2

REF. FPSD-9038

I. Facts of the case

1. On 5 August 2017, the parties signed a contract for the 2017/2018 season (hereinafter: the first contract).

2. In relation to said contract, on 20 February 2023, and following a claim before FIFA (19-00709), the DRC decided upon the following: “1. The claim of the Claimant, Hugo Lopez Martinez, is partially accepted.

2. The Respondent, Dhofar Club, has to pay to the Claimant outstanding remuneration in the amount of EUR 85,000, plus 18% interest p.a. as from 1 July 2018 until the date of effective payment.

3. Any further claim lodged by the Claimant is rejected.”

3. On 23 June 2019, the parties concluded an employment contract valid as from the date of signature until 30 June 2021 (hereinafter: the second contract).

4. On 2 May 2020 , the player terminated the second contract.

5. In relation to said contract, on 29 September 2020 (with grounds notified on 18 March 2021), and following a claim before FIFA (20-00691), the DRC decided upon the following: “1. The claim of the Claimant, Hugo Lopez Martinez, is partially accepted.

2. The Respondent, Club Dhofar, has to pay to the Claimant, the following amounts: - USD 71,000 as outstanding remuneration plus 5% interest p.a. (…) - USD 161,000 as compensation for breach of contract without just cause plus 5% interest p.a. as from 4 May 2020 until the date of effective payment.”

6. On 22 October 2020, the parties agreed upon a contractual extension of the first contract (i.e. the first contract extension), under the following terms: “Due to the suspension of Omantel League matches due to the Coronavirus pandemic, the two parties agreed to extend the contract signed on 06/23/2019 for the period referred to in the previous article to extend during the period from 25/5/2020 to 15/11 /2020.”

7. On 22 October 2020, the parties concluded a third contract valid from 27 September 2020 until 30 May 2021 (hereinafter: the third contract), according to which the player was entitled to OMR 100 as “defense money”.

8. On 17 January 2021, the club sent the following correspondence to the player: “We hereby confirm that dhofar club upon your request to not continue your employment contract and be free player to sign for new club from January 2021, we authorize you to negotiate with any new club and confirm that upon your agreement with a new club we will sign mutual termination agreement in light of our discussions today.”

9. On 18 January 2021, the player sent a default notice to the club. pg. 3

REF. FPSD-9038

10. On 26 January 202, the player, via his legal representative, sent a “final default notice”, indicating the following: “the contrary, my client was marginalized (…) for the mere fact of claiming his unpaid wages in FIFA. (…) You have not paid his wages for more than 3 years while he has been working at maximum

performance with the club and also, as a last punishment, he was discriminated against from his colleagues(…) Therefore, we come to urgently request 2 things: 1.- Payment within next 10 days, the 3 and a half months of unpaid salaries: 900 USD; plus $ 7,000 from the Cup bonus. Total: $ 7,900 2.- In addition, we ask you to end the contract in a friendly manner within 10 days and stop preventing my client from exercising his free right to work (…). We must remind you that If you do not give the player the freedom to work the other team immediately, you are also violating the Universal Charter of Human Rights and his right to work.”

11. On 26 January 2021, the Player terminated the third contract, indicating the following: “we inform you that the player terminates the laboral contract that is in force with your club from today (…) This, taking into account the reasons have already alleged in previous communications.”

12. On 8 April 2021 2021, the club filed an appeal before the Court of Arbitration for Sport (CAS) against the decision 20-00691. The appeal was given the reference CAS 2021/A/7861.

13. On 9 May 2021, the club presented its Appeal Brief before CAS, and request, inter alia, a payment corresponding to “ The loss of Player’s services / transfer fee amounts between EUR 325,000 (USD 393,038.75) and USD 80,000 (cf. point 116 of the Appeal Brief)”

14. On 29 March 2023, CAS issued an arbitral award confirming the decision of 29 September 2020

(20-00691)

15. On 25 November 2021, (FPSD-2489), and following another procedure before FIFA, the DRC decided upon the following: “1. The claim of the Claimant, Hugo Lopez Martinez, is partially accepted.

2. The Respondent, Dhofar, has to pay to the Claimant, the amount of USD 7,000 as outstanding

amount plus 5% interest p.a. as from 7 March 2020 until the date of effective payment;

3. Any further claims of the Claimant are rejected.

4. The counterclaim of Dhofar is inadmissible.”

16. On 15 December 2021, FIFA notified the grounds of the decision FPSD-2489.

17. The club’s counterclaim was declared inadmissible in line with art. 9 par 3 of the June 2020 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber according to which “In case the opposing party wishes to lodge a counter-claim, it shall submit within the same time limit applicable to the reply”. Within this context, the club’s counterclaim was lodged when the club was invited to provide its duplica, pg. 4

REF. FPSD-9038 instead of doing so at the moment of its reply.

18. For background information, the club’s counterclaim, dated 25 July 2021, contained the following: “31- (…) FIFA shall decide about the unilateral termination of the Player for the New contract of season 2020/2021 without just cause and compensate the club for losing the services of the player and also the offers received from another club (…) 58 – On the 26th of January 2021, the Player’s representative surprisingly sent an email terminating

the New Contract”

19. The player retired from football since 26 January 2021.

II. Proceedings before FIFA

1. On 25 January 2023, Dhofar lodged a claim against the player before the FIFA Football Tribunal for breach of contract without just cause and requested the payment of “an amount between USD 80,000 and USD 120,000 for the loss of transfer”

2. In particular, the club argued that the player terminated the third contract without just cause, particularly since it considered default notice of 18 January 2021 to be invalid.

3. The club calculated the player’s replacement value in view of the acquisition of the services of two players in January 2021, i.e. Mr Odai Al-Qarra (https://www.transfermarkt.com/odaialqarra/profil/spieler/642474) and Mr Khalid Al-Hajiri

(https://www.transfermarkt.com/khalid-al-hajri/profil/spieler/483003) which are both strikers in the same position of the Player to replace him.

4. The club argued that Mr Khalid Al-Hajiri’s market value alone at that time was approximately USD 300,000 according to TransferMarkt.com, while Odai’s market value was approximately USD 200,000, following the same source.

5. In its reply, the Respondent considered that the matter is res iudicata.

6. The Respondent argued that the club in its appeal, asked CAS for exactly what it is now asking FIFA for, exactly the same facts and exactly the same causes: that the player should pay compensation for the final termination of the contract on 26 January 2021, consisting in the loss of opportunity to transfer him, as well as alleged replacement costs.

7. Moreover, the Respondent argued that, within the context of the matter FPSD-2489, the club already did the same petition that it is formulating in the present claim now. pg. 5

REF. FPSD-9038

8. The Respondent noted that the club’s counterclaim within the matter FPSD-2489 was inadmissible.

9. The player underlined that the club did not appeal the decision FPSD-2489.

10. As to the substance, the player underlined that he already presented its argument in the previous proceedings, and underlined that, under any case, he was a victim of “mobbing” for only requesting what he was legally entitled to receive.

11. The Claimant sent an unsolicited replica, noting that in the matter FPSD-2489, the DRC did

not enter into the merits of the issue pertaining to the termination of the contract, since said decision only concerned the payment of outstanding remuneration.

12. The Claimant argued that the counterclaim at that moment was only “inadmissible”, but not

“dismissed”.

13. In this respect, the club referred to the CAS Award 2020/A/6912, according to which “Res judicata is the legal principle that precludes a subsequent legal action involving the same claim, demand, or cause of action to be redecided once it has been judged / decided on the merits.” pg. 6

REF. FPSD-9038

III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as 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 26 January 2023 and submitted for decision on 26 May 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.

2. Subsequently, the members of 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 lit. b) of the Regulations on the Status and Transfer of Players (October 2022 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 a club from Oman and a player from Spain.

3. Subsequently, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1

and 2 of the Regulations on the Status and Transfer of Players (March 2023 edition), and considering that the present claim was lodged on 25 January 2023, the October 2022 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance. b. Burden of proof

4. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 13 par. 5 of the Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof. Likewise, the Chamber stressed the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which it may consider evidence not filed by the parties, including without limitation the evidence generated by or within the Transfer Matching System (TMS).

c. Admissibility

5. Given the arguments of the parties, and prior to any possible assessment of the substance of the matter, the Chamber verified whether the matter at stake is res iudicata. pg. 7

REF. FPSD-9038

6. In doing so, the Chamber first noted that the present claim fundamentally revolves around the unilateral termination by the player of the employment relationship between the parties, which occurred on 26 January 2021.

7. In relation to this issue, the Chamber remarked that, in the previous matter FPSD-2489, the club already lodged a counterclaim requesting compensation for this same termination.

The Chamber verified that, in said case, the Dispute Resolution Chamber already decided that this counterclaim is inadmissible since it was not filed in accordance with art. 9 par 3 of the June 2020 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber, which establishes that “In case the opposing party wishes to lodge a counter-claim, it shall submit within the same time limit

applicable to the reply.”

8. Within this context, the Chamber understood that, if the club had the will to contest said inadmissibility of the counterclaim, it should have followed the established legal remedies in accordance with art. 58 par. 1 of the FIFA Statutes. Accordingly, it should have lodged an appeal against the relevant decision following the applicable procedural rules and statutes.

9. However, the Chamber noted that the club failed to do so. In fact, the grounds of the decision FPSD-2489 were notified on 15 December 2021, whereas the present claim was lodged on 25 January 2023, i.e. more than a year after.

10. Furthermore, the Chamber also observed that, in the Appeal Brief for the other connected matter (CAS 2021/A/7861), the club made a similar request for relief than the one that it is present now, which was dismissed.

11. In fact, the Chamber also noted present claim was lodged on 25 January 2023, whereas the event giving rise to the dispute occurred on 26 January 2021. Considering the existence of several previous disputes and the fact that the club had several opportunities (particularly, in the matter FPSD-2489) to raise the issue about the termination of the contract, the Chamber understood that the present claim can be interpreted as an attempt to find a last opportunity to raise the issue about the termination of the contract and thus may imply an abuse of process.

12. As a consequence, the Chamber considered that the club cannot raise the issue of the unilateral termination of the contract at this time, particularly since it was already raised in previous proceedings. In the opinion of the Chamber, such failure to adhere to the established processes can be construed as an indication of acting in bad faith.

13. In this respect, the Chamber noted that, as a principle, abuse of process may involve attempting to circumvent or undermine previous unfavourable decisions or outcomes. In

particular, the Chamber noted that this can be done by filing subsequent claims with similar requests for relief, even after such requests have been dismissed or rejected in previous proceedings. pg. 8

REF. FPSD-9038

14. Ultimately, the Chamber understood that by engaging in this behaviour and trying to revisit an issue that was already raised, the club undermines the efficiency, fairness, and finality of the football dispute resolution system, as it can disrupt the proper functioning of the process and erode overall trust.

15. The Chamber emphasized that adhering to established processes is crucial in maintaining the fairness and integrity of the football dispute resolution system. This ensures that all parties involved have equal opportunities to present their arguments and seek redress within the prescribed framework. When a party wilfully chooses to deviate from these processes or neglects to pursue available legal remedies, it undermines the principles of fairness, transparency, and due process and, as result, such behaviour cannot be accepted.

16. For these reasons, the Chamber had no other option that to establish that the claim of the club is inadmissible.

d. Costs

17. 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.

18. 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.

19. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any of the parties. pg. 9

REF. FPSD-9038

IV. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Dhofar, is inadmissible.

For the Football Tribunal: Emilio García Silvero Chief Legal & Compliance Officer pg. 10

REF. FPSD-9038

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 FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland www.fifa.com | legal.fifa.com | psdfifa@fifa.org | T: +41 (0)43 222 7777 pg. 11