FC Sportul Studentesc SA v. Andrei Lungu, Daniel-Cornel Lung, Leonard Dobre, Octavian Dorin Ormenisan, Sebastian Cioranu Codrut, Sebastian Marinel Ghinga, Valentin Marius Lazar

III. FACTUAL BACKGROUND — A. Background Facts, initial Proceedings 2013-2014

11. Below is a summary of the relevant facts and allegations based on the parties’ written submissions, pleadings and evidence adduced. Additional facts and allegations found in the parties’ written submissions, pleadings and evidence may be set out, where relevant, in connection with the legal discussion that follows. While the Sole Arbitrator has considered all the facts, allegations, legal arguments and evidence submitted by the parties in the present proceedings, he refers in his Award only to the submissions and evidence he considers necessary to explain his reasoning.

12. During the years 2010 and 2011, the Club entered into a series of employment agreements with the Players. In 2013, a dispute arose between the Players and the Club regarding the Players’ claims for outstanding salaries and the question whether the employment agreements were terminated by the Players with just cause.

13. On 23 April 2013, the National Dispute Resolution Chamber of the RFF (“RFF NDRC”) issued the following decisions:

Ormenisan (resolution no. 168)

• Ascertained the termination of the contractual relations between the club and Ormenisan as of 23 April

• Ordered the club to pay an amount of euro 7.800 net in favor of Ormenisan, representing his remaining contractual rights for the period between February 2012 and January 2013;

• Ordered the club to pay an amount of LEI 400 in favor of Ormenisan for the costs of the proceeding.

Lungu (resolution no. 196)

• Ascertained the termination of the contractual relations between the club and Lungu as of 23 April 2013

• Ordered the club to pay an amount of euro 17.500 net in favor of Lungu, representing his remaining contractual rights for the period between August 2012 and February 2013;

• Ordered the club to pay an amount of LEI 400 in favor of Lungu for the costs of the proceeding.

Dobre (resolution no. 167)

• Ascertained the termination of the contractual relations between the club and Dobre as of 23 April 2013

• Ordered the club to pay an amount of euro 9.200 net in favor of Dobre, representing his remaining contractual rights for the period between February 2012 and January 2013;

• Ordered the club to pay an amount of LEI 400 in favor of Dobre for the costs of the proceeding.

Ghinga (resolution no. 169)

• Ascertained the termination of the contractual relations between the club and Ghinga as of 23 April

• Ordered the club to pay an amount of euro 18.000 net in favor of Ghinga, representing his remaining contractual rights for the period between February 2012 and January 2013;

• Ordered the club to pay an amount of LEI 400 in favor of Ghinga for the costs of the proceeding.

Lung (resolution no. 170)

• Ascertained the termination of the contractual relations between the club and Lung as of 23 April 2013

• Ordered the club to pay an amount of euro 18.000 net in favor of Lung representing his remaining contractual rights for the period between February 2012 and January 2013;

• Ordered the club to pay an amount of LEI 400 in favor of Lung for the costs of the proceeding.

Lazar (resolution no. 172)

• Ascertained the termination of the contractual relations between the club and Lazar as of 23 April 2013

• Ordered the club to pay an amount of euro 21.000 net in favor of Lazar, representing his remaining contractual rights for the period between February 2012 and January 2013;

• Ordered the club to pay an amount of LEI 400 in favor of the Lazar for the costs of the proceeding.

Codrut (resolution no. 166)

• Ascertained the termination of the contractual relations between the club and Codrut as of 23 April

• Ordered the club to pay an amount of euro 12.000 net in favor of Codrut, representing his remaining contractual rights for the period between February 2012 and January 2013;

• Ordered the club to pay an amount of LEI 400 in favor of Codrut for the costs of the proceeding.

14. The Romanian Football Federation’s Appeal Committee (the “Appeal Committee”) modified the decision regarding the Player Codrut and ordered the Club to pay him EUR 7’260.40. The other appeals were rejected, whereby the Appeal Committee stated that they were inadmissible as filed too late.

15. The Club appealed before the Court of Arbitration for Sport (the “CAS”), claiming that the amounts in question had been paid throughout the year 2012 and filing the respective payment slips. This argument was not filed by the Club during the proceedings within the RFF. On 7 March 2014, CAS issued the award CAS 2013/A/3286-3294, dismissing the Club’s appeal (the “CAS Award 2014”). In his reasoning, the sole arbitrator considered that the payment slips were filed too late and therefore inadmissible according to Article R57 of the Code of Sports-related Arbitration (the “CAS Code”).

B. New Proceedings before the RFF NDRC and the Appeal Committee

16. On 18 July 2014, the Appellant filed several new claims with the RFF NDRC against the Players (the “new claims”). Except for the name and amount in question, the claims were not only alike but almost identical. The Club argued that:

• It had already paid all salaries to the Players throughout the year 2012.

• As the amounts due defined by CAS Award 2014 for the period February 2012 until January 2013 were actually below the amounts that the Club had allegedly paid to the Players, the Club concluded that it had paid to the Players too much. Therefore, the Club claimed for the amounts that the Club allegedly paid to each Player on the basis of unlawful enrichment.

• The claim against the Player Lung shall serve as an example: the Club claimed to have paid to the Player Lung the amount of EUR 26’916.86 during the year 2012. The CAS Award 2014 held that the Club had to pay EUR 18’000.00 to the Player for the same

period. Hence, the Club claimed that the Player was unlawfully enriched and had to pay back the amount received by the Club.

17. By decisions dated 16 October 2014, the RFF NDRC dismissed the Club’s claims.

18. On 4 March 2015, the Appeal Committee upheld those decisions and rejected the Club’s appeal.

19. In their reasoning, the RFF NDRC and Appeal Committee both considered the following main points:

• The Club’s prayers for relief were exactly about the same factual background and legal question which was settled in the CAS Award 2014. Namely, the subject was whether the Club paid the Players’ salaries or not for the claimed periods. This question had been answered by the judicial bodies of the RFF and by the CAS Award 2014.

• The Appeal Committee cited the CAS Award 2014 and held that:

• The evidences for the payments allegedly being made were filed too late (only before CAS) and were therefore inadmissible.

• Even if they were admissible, they cannot prove the payments because the amounts did not match the payments due and were not written in a proper form.

• Taking the argument of the Club, that the new claims were not res iudicata because it is about wrongful enrichment this time, into consideration, it would again lead to the decisive question of whether the Club had paid the alleged amounts or not. Hence, there is res iudicata from this point of view as well.

• According to Articles 430 and 431 of the Romanian Civil Code, the case has to be considered as a matter of res iudicata. The Club was only trying to reverse the factual circumstances which had already been determined irrevocably by the CAS Award 2014.

• Therefore, the new claims had to be rejected due to the principle of res iudicata.

IV. PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT

20. On 3 April 2015, the Appellant filed its statements of appeal against the decisions of the Appeal Committee with the CAS in accordance with Articles R47 and R48 of the CAS Code.

21. On 16 April 2015, the Appellant filed its appeal briefs.

22. In accordance with Article R55 of the CAS Code, the Respondents filed their answers on 4 June 2015.

23. On 22 April 2015, the parties were informed that the seven appeals by the Club will be submitted to the same sole arbitrator upon consent by the parties and in accordance with Article

24. On 15 May 2015, pursuant to Articles R33, R52, R53 and R54 of the CAS Code, the Secretary General of the CAS informed the parties that the Panel appointed to decide the present matter was constituted by the Sole Arbitrator Dr. Marco Balmelli, attorney-at-law in Basel, Switzerland.

25. On 24 July 2015, a submission was filed on behalf of all Players (save Player Lungu) by their newly appointed legal counsel. Such late submission was deemed inadmissible pursuant to Article R56 of the CAS Code.

26. On 27 July 2015, a hearing was held at the CAS Headquarters in Lausanne, Switzerland. The parties’ counsels made their respective opening statements and answered the questions raised by the Sole Arbitrator. Finally, the parties’ respective counsels made their closing statements.

27. Both at the beginning and at the end of the hearing, the parties expressly declared that they were satisfied with the way in which the proceedings had been conducted.

V. SUBMISSIONS OF THE PARTIES

28. The following outline of the parties’ positions is illustrative only and does not necessarily comprise each and every contention put forward by the parties. The Sole Arbitrator, however, has carefully considered all the submissions made by the parties, even if no explicit reference has been made in what immediately follows. The parties’ written submissions, their verbal submissions at the hearing and the contents of the Appealed Decisions were all taken into consideration.

A. Appellant

29. The Appellant filed the following prayers for relief:

Regarding Player Lung:

1. “To admit the Appeal against the Decision no. 101 issued by the Appeal Committee of the Romanian Football Federation;

2. To ascertain the fact that the Appellant paid to the Football Player the sum of 26’916.86 Euros, in accordance with payment documents attached to this application, representing financial rights under the contract for football services, for sports year 2012.

3. To oblige the football player to reimburse to the Appellant the sum of 26’916.86 Euros due to the fact that, for the same period of time, the Appellant was ordered to pay the sum of 18’000.00 Euros by National Commission for Settlement of Disputes (“NCSD”) Decision no. 170 issued on April 23, 2013.

4. To oblige the Football Player to pay the costs generated by this procedure”.

30. The prayers for relief regarding the other Players were identical apart from the different amounts claimed by the Appellant. The arguments were also identical (save the numbers).

31. The Appellant’s submissions, in essence, may be summarized as follows:

• The parties entered into a contract in 2010 (monthly fee of EUR 1’500.00, conditioned by participation of 70% in official games). The Club paid EUR 26’916.86 for the year 2012. Additionally, 23/04/2013 RFF NDRC forced the Club to pay EUR 18’000.00.

• The Club states it paid all obligations (especially wages) to the Player. Payment slips were filed as evidences.

• Since the CAS Award 2014 ordered the Club to pay EUR 18’000.00 to the Player, it had paid too much salary throughout the year 2012. Therefore, the whole amount paid to the Player shall be reimbursed by him. Otherwise, he would be unlawfully enriched.

• The principle of res iudicata only applies if a triple identity is met: the dispute has to concern the same object based on the same cause of action between the same parties. This is not met in the case at hand:

• The first case was about issues arising from the employment contract. This time, it is about unlawful enrichment (e.g. neither identical cause nor object).

• The identity of the parties is not given since it is now the Club which sues the Player, not vice-versa.

• It is not the “same legal problem”. It would be unlawful if the Player gets the same amount twice. This would be a completely different legal action, although based on the same background. It is not about the Player’s right this time but about the Player being overpaid. Furthermore, the aspect that the Club did indeed pay its Players their salaries was not considered in the first case because it was born only after.

• As the Club was ordered to pay a different amount for the same period, the amount initially paid is considered as “not due” and needs to be returned.

B. Respondents

32. The Respondents filed the following identical (except for the decision number and the name of the Players) prayers for relief:

“The decision no 101 issued by the Commission of Appeal of the Romanian Football Federation in the matter of SC FC Sportul Studentesc against Lung Daniel Cornel is solid and legal and it will be kept”.

33. The Respondents’ submissions, in essence, may be summarized as follows:

• The Club didn’t receive the first decision by RFF NDRC because the fax machine was broken and they refused to accept the registered mail letter. This may not serve as an excuse for a delayed appeal before the Appeal Committee since this was an old issue, when the Players sued the Club for not paying their salaries.

• If the problem to be solved was already solved in a previous case, the principle of res iudicata applies. This is supported if a new judgment would be contradictory to another case between the same parties.

• Even if there were quittances that stated that the amounts were paid, they would be void. According to the Romanian Labour Code, employees cannot waive their rights recognized by law.

• The Club failed to pay the salaries from February 2012 to January 2013 and the employment agreement could be terminated with just cause according to the ruling of the RFF NDRC. Subsequently, the Club was banned from all competitions because they did not comply with the decisions of the RFF NDRC. This decision was not challenged by the Club.

• The payment slips filed by the Appellant lack the standard of proof as they are forged.

• The Club tries to come back on all the decisions which have been made in a prior procedure. Due to the principle of res iudicata, the appeal shall be dismissed.

34. On 24 July 2015, the Respondents (save Player Lungu) filed the following prayers for relief:

• “To dismiss the appeals submitted by the APPELLANT, as ungrounded;

• To maintain the appealed decisions rendered by the Appeal Committee of the Romanian Football Federation;

• To condemn the APPELLANT to the payment of the whole CAS administration costs and the Panel fees;

• To fix a sum, to be paid by the APPELLANT to the RESPONDENTS Lazar Valentin Marius, Lung Daniel Cornel, Ghinga Sebastian, Dobre Leonard, Ormenisan Octavian and Cioranu Codrut, in order to pay their defense feed and costs in amount of 3’000 CHF/each respondent”.