FIFA - Decisión disputa Schenk 29062023

REF. FPSD-10000

Decision of the Dispute Resolution Chamber passed on 29 June 2023 regarding an employment-related dispute concerning the player Xandro Dylan Schenk BY: Frans de Weger, the Netherlands

CLAIMANT:

Xandro Dylan Schenk, the Netherlands Represented by Ruiz-Huerta & Crespo Sports Lawyers

RESPONDENT:

Al Batin, Saudi Arabia pg. 2

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I. Facts of the case

1. On 1 October 2020, the Dutch player, Xandro Dylan Schenk (hereinafter: the player or the Claimant), and the Saudi club, Al Batin (hereinafter: the club or the Respondent), concluded an employment contract valid as from 30 September 2020 until 30 June 2022 (hereinafter:

the Employment Contract).

2. On 30 May 2021, the club’s team won the match against the Saudi club, Al Ain Football Club, and avoided relegation to the lower division of the national league. During the celebration, the president of the club was recorded in video promising each player a bonus of SAR 125,000 each. The event and the promise were also reported in the local media

(hereinafter: the Bonus).

3. On 28 June 2021, the parties concluded a termination agreement to end their employment relationship and set out their remaining duties towards each other (hereinafter: the

Termination Agreement).

4. In accordance with article 3 of the Termination Agreement, the club undertook to pay the

player the following amounts: a. EUR 66,666 net by 1 July 2021; b. EUR 71,667 net in November 2021; c. EUR 71,667 net in December 2021; and d. EUR 71,667 net in January 2022.

5. In addition, article 4 of the Termination Agreement reads as follows: “In the event that [the club] fails to comply with the payment of any of the

aforementioned instalments within the agreed deadline, the player will send a 15-day default notice to the club. In the event that the club does not comply with the said payment within the 15 days deadline granted, a default interest penalty at a rate of 5% per month will apply as from the agreed deadlines until the effective date of payment”.

6. Article 6 of the Termination Agreement reads as follows: “This Agreement shall represent the entire understanding between the Parties or their advisors in relation to the matter herein and shall supersede all previous arrangements, written or verbal, between the Parties relating to the matter hereof”.

7. The Termination Agreement did not include any reference to the Bonus.

8. By letter dated 21 April 2022 and sent on 22 April 2022, the player acknowledged receipt of a total of EUR 88,946 (i.e., EUR 66,666 plus EUR 22,280) under the Termination pg. 3

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Agreement and granted the club a 15 days’ deadline to pay EUR 192,720 corresponding to outstanding remuneration established therein.

9. On 13 May 2022, the player filed a first claim against the club in front of the FIFA Dispute Resolution Chamber (DRC), which was filed under ref. no. FPSD-6053 (hereinafter: the First Claim). Accordingly, the player requested to be awarded outstanding remuneration amounting to EUR 192,720, interests, and legal costs.

10. On 4 August 2022, the FIFA DRC passed its decision in connection with the First Claim, the grounds of which were notified to the parties on 7 September 2022 (hereinafter: the DRC Decision). Accordingly, the player was awarded EUR 192,720 net plus interest as outstanding remuneration in line with the Termination Agreement.

11. Neither the First Claim nor the DRC Decision made any reference to the Bonus. No appeal was lodged against the DRC Decision.

II. Proceedings before FIFA

12. On 21 April 2023, the player filed the claim at hand before FIFA. A brief summary of the position of the parties is detailed in continuation.

a. Position of the player

13. In his claim, the player claimed to be entitled to an additional payment of SAR 125,000 (EUR 31,580), corresponding to the Bonus, publicly promised by the club’s president on 30 May

2021. He furthermore explained that such amount was not considered in the DRC Decision, hence it was still pending and due.

14. In addition, the player also claimed interest of 5% p.a. over such amount as from date of default until the effective payment.

b. Position of the club

15. On 11 June 2023, the club filed its reply to the claim of the player.

16. First and foremost, the club argued that the claim is inadmissible as it constitutes res judicata. In particular, the club pointed out to the fact that the claimed Bonus was already due at the time the First Claim was lodged, hence this issue cannot be raised at this stage.

17. Alternatively, the club disputed the player’s entitlement to the Bonus as it was not included in the Termination Agreement signed by the parties after the amount had already fallen due. Equally, it added that the promise was – in any scenario – invalid as had not been done in writing nor in an individual basis. pg. 4

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18. In conclusion, the club’s requests for relief were as follows, quoted verbatim: “In light of all the above and also under consideration of the factual and legal aspects as outlined in our present position we respectfully respect the FIFA: 1.1. To reject the player’s claim in its entirety; 1.2. To rule that the player’s claim is inadmissible; or 1.3. Alternatively, if the player’s claim is admissible, to tule that the promise in

question is invalid; or 1.4. Alternatively, if the promise at stake is valid, to rule that the player waived it by signing the Termination Agreement”. c. Unsolicited correspondences by the parties

19. On 12 June 2023, the FIFA general secretariat acknowledged receipt of the club’s reply and informed the parties that the submission phase of the proceedings at hand was closed (cf. art. 23 of the Procedural Rules Governing the Football Tribunal).

20. On 20 and 21 June 2023, the parties filed unsolicited correspondences regarding the jurisprudence of the Football Tribunal in connection with the dispute.

III. Considerations of the Dispute Resolution Chamber

21. First of all, the Single Judge of the DRC (hereinafter also referred to as Single Judge) analysed whether he was competent to deal with the case at hand. In this respect, he took note that the present matter was presented to FIFA on 21 April 2023 and submitted for decision on 29 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.

22. Subsequently, the Single Judge 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, par. 1, lit. b) of the Regulations on the Status and Transfer of Players (March 2022 edition), the DRC is – in principle – competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a Dutch player and a Saudi club.

23. Nevertheless, the Single Judge acknowledged that the club challenged the admissibility of the claim. As such, the Single Judge proceeded accordingly to examine the issue. pg. 5

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24. In doing so and as a departure point, the Single Judge acknowledged that the case at hand pertains to a claim for outstanding remuneration, consisting of the Bonus, promised by the club’s president to the players after avoiding relegation to the lower division of the national league in Saudi Arabia.

25. The Single Judge observed that it remained undisputed that the Bonus was indeed promised by the club’s representative during the celebrations by the team, which was also recorded in video and reported by the media. The Single Judge was also observant that the claimed amount was assumedly not paid by the club. Along these lines, the Single Judge remarked that the club disputes the player’s entitlement to the Bonus based on the reasons detailed below – but stressed, once again, that the fact that a promise was made by the club’s president is not challenged by the Respondent: • The player had already lodged the First Claim before the DRC, which did not include the concept of the Bonus. Therefore, it constitutes res judicata and can no longer be entertained; and • The Bonus was never promised in written form; therefore, it was not valid.

Furthermore, after the promise, the parties signed a Termination Agreement in which they included all their residual obligations towards each other. The Bonus was mentioned in such document; hence it is not due.

26. Having established the above, the Single Judge initially recalled that the principle of res judicata ensures that whenever a dispute has been defined and decided upon, it becomes irrevocable, confirmed, and deemed to be just – res judicata pro veritate habetur. In particular, the Single Judge underlined that this principle applies whenever three elements are concurrently present, namely: The same persons - eadem personae; o The same object - eadem res; o The same cause - eadem causa petendi. o

27. On this note, the Single Judge went on to analyse the evidence on file regarding the

previous decision allegedly passed in an identical matter. In this respect, he observed that indeed a decision (i.e., the DRC Decision) had been passed by a competent deciding body (i.e., the FIFA DRC) on 4 August 2022, which was final and binding by now.

28. Furthermore, the Single Judge 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 noted that both the player and the club were the parties in the proceedings leading to the DRC Decision as well as in the dispute at stake. As a consequence, the Single Judge came to the conclusion that the condition of the identity of parties is fulfilled. pg. 6

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29. The Single Judge 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 subject matter is fulfilled if the reason to claim and the relevant requests of the two claims are similar.

When comparing the First Claim to the one at hand, the Single Judge acknowledged that their objects are not the same: whilst the First Claim was limited to the outstanding instalments of the Termination Agreement, the claim at hand envisages to discuss the player’s entitlement to the Bonus as promised by the club’s president.

30. Consequently, and as opposed to the argumentation of the player, the Single Judge was firm to determine that the Bonus now claimed by the player was not assessed by the FIFA DRC in the DRC Decision. In fact, it could have never been, because it was not claimed then.

Therefore, he concluded that the requirements for the existence of res judicata are not formally met (see, in this regard, CAS 2020/A/6884 Soukeyna Ba Bengelloun v. FIFA & PFC CSKA-Sofia).

31. Notwithstanding the above, the Single Judge was also of the opinion that the (procedural)

behaviour of the player cannot be overlooked. In the Single Judge’s view, it was clear from the documentation on file that by the time the First Claim was lodged, the Bonus was already due. As such, the Single Judge considered that the player not only could but should have requested the Bonus together with the other concepts sought per the First Claim. However, as the Bonus was not requested then, the Single Judge found that the player is precluded from launching a new proceeding now for that concept. The principle of preclusion, 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.

32. Any different conclusion from the one above would jeopardize the spirit of the Procedural Rules, for parties would be able to file independent claims as they please. This contravenes not only the principles of good procedural order and procedural economy, but also the due process and, ultimately, legal certainty within the FIFA dispute resolution system.

33. By the same token, the Single Judge underscored that the submission of a First Claim and then a different one against the same party for amounts that could already been claimed harmed the legitimate expectation of the debtor (in casu, the club), which is also be reprehensible in line with the doctrine of venire contra factum proprium. Not claiming the Bonus within the context of the First Claim, quite clearly, generated the (legitimate) expectation on the Respondent that this concept was not in dispute.

34. In conclusion, the Single Judge decided that the claim of the player is inadmissible.

35. For the sake of completeness, while it would not be in principle necessary to undertake the analysis on the substance of the dispute, the Single Judge also wished to outline that the player’s request – besides of belatedly made – also lacks contractual basis. pg. 7

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36. Regardless of the discussion as to the validity of an oral promise such as the one made by

the president, the Single Judge found it decisive that the parties subsequently signed the Termination Agreement by means of which they settled any and all pending obligations. Furthermore, such Termination Agreement expressly stipulated that it superseded any previous agreement between the parties, both in written and orally.

37. Consequently, and from any angle of analysis, the Single Judge was satisfied that the claim of the player shall not succeed.

38. Lastly, the Single Judge 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 Single Judge decided that no procedural costs were to be imposed on the parties.

39. Likewise, the Single Judge recalled the contents of art. 25 par. 8 of the Procedural Rules, and decided that no procedural compensation shall be awarded in these proceedings. pg. 8

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IV. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Xandro Dylan Schenk, is inadmissible.

2. This decision is rendered without costs.

For the Football Tribunal: Emilio García Silvero Chief Legal & Compliance Officer pg. 9

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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 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. 10