F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2019-2020) – fifa.com – atto non ufficiale – Decision 23 April 2020

Decision of the

Dispute Resolution Chamber

passed on 23 April 2020,

in the following composition:

Geoff Thompson (England), Chairman

José Luis Andrade (Portugal), member

Stijn Boeykens (Belgium), member

on the claim presented by the player,

Rodrigo Sebastián Aguirre Soto, Uruguay

represented by Mr Felipe Moccia

as Claimant

against the club,

Botafogo de Futebol e Regatas, Brazil

represented by Mr Rodrigo Marrubia Pereira

as Respondent

regarding an employment-related dispute between the parties

I. Facts of the case

1. On 14 March 2018, the Uruguayan player, Rodrigo Sebastián Aguirre Soto (hereinafter: Claimant) and the Brazilian club, Botafogo de Futebol e Regatas (hereinafter: Respondent), signed an employment contract, valid as of 1 April 2018 until 30 June 2019.

2. On 28 January 2019, the parties signed a termination agreement, mutually ending their contractual relationship upon a payment of the total amount of Brazilian Real (BRL) 327,312.29 by 28 February 2019.

3. Pursuant to Art. 13 of the termination, the parties agreed upon the following: “The labour court of the State of Rio de Janeiro is hereby elected to settle doubts or questions arising directly or indirectly from this TERMINATION agreement, which the PARTIES sign in 02 (two) copies of equal content, form and date, together with the below qualified and signed witnesses”.

4. By correspondence dated 12 November 2019, the Claimant put the Respondent in default of BRL 327,312.29, corresponding to the outstanding remuneration based on the termination agreement, setting a time limit of 10 days in order to remedy the default.

5. On 15 January 2020 the Claimant lodged a claim against the Respondent for overdue payables, requesting the amount of of BRL 327,312.29 plu 5% interest p.a. as from 28 February 2019 until the date of effective payment.

6. Furthermore, the Claimant requested that sporting sanctions be imposed on the Respondent.

7. In his claim, the Claimant held that, notwithstanding his default letter dated 12 November 2019, the Respondent failed to pay him the amount as agreed in the Termination Agreement.

8. In reply to the Claimant’s claim, the Respondent held that the termination agreement was subject to Brazilian law and “is not subject to arbitration or any other private dispute resolution”.

9. In this context, the Respondent based itself on Brazilian Law according to which: “The parties involved may avail themselves of arbitration to settle disputes relating to dispensable property rights, forbidden the consideration of matters regarding to discipline and sporting competition […] The arbitration shall be stipulated in contract or collective bargaining agreement and may only be initiated after the express approval of both parties, through arbitration clause or arbitration commitment”.

10. According to the Respondent, the termination agreement does not contain reference to arbitration or private dispute resolution but contained a jurisdiction clause in favor of civil court, of the Brazilian Labor Court of the state of Rio de Janeiro.

11. Consequently, the Respondent concluded that the claim is to be declared inadmissible.

II. Considerations of the Dispute Resolution Chamber

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 submitted to FIFA on 15 January 2020. Taking into account the wording of art. 21 of the 2019 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (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. 3 par. 1 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 and par. 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players 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 Uruguayan player and a Brazilian club.

3. However, the Chamber acknowledged that the Respondent contested the competence of FIFA’s deciding bodies on the basis of Art. 13 of the termination agreement, stating that employment-related disputes between the parties fall within the exclusive jurisdiction of the labour court of the State of Rio de Janeiro.

4. With the aforementioned considerations in mind, and prior entering into the analysis of its competence, the Chamber wished to recall that in accordance with art. 22 lit. b) of the Regulations on the Status and Transfer of Players, without prejudice to the right of any player or club to seek redress before a civil court for employment-related disputes, it is competent to deal with a matter such as the one at hand, unless an independent arbitration tribunal, guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs, has been established at national level within the framework of the association and/or a collective bargaining agreement.

5. In relation to the above, the Chamber also deemed it vital to outline that one of the basic conditions that needs to be met in order to establish that a deciding body other than the DRC is competent to settle an employment-related dispute between a club and a player of an international dimension, is that the jurisdiction of the relevant derives from a clear reference in the employment contract.

6. Therefore, while analysing whether it was competent to hear the present matter, the Dispute Resolution Chamber considered that it should, first and foremost, analyse whether the employment contract at the basis of the present dispute contained a clear and exclusive jurisdiction clause in favour of the labour court of the State of Rio de Janeiro.

7. In this respect, the Chamber first of all referred to Art. 13 of the termination agreement, according to which “(t)he labour court of the State of Rio de Janeiro is hereby elected to settle doubts or questions arising directly or indirectly from this TERMINATION agreement, which the PARTIES sign in 02 (two) copies of equal content, form and date, together with the below qualified and signed witnesses”.

8. In this regard, the members of the Chamber placed particular emphasis on the fact that the reference to the labour court of the State of Rio de Janeiro is clear and unequivocal. Furthermore, the DRC agreed that the language used in provision, particularly the part which refers to issues “arising directly or indirectly from” the termination agreement, reinforces the idea that the parties were referring to a specific court chosen to solve their employment-related issues.

9. As such, the DRC concluded that, by means of Art. 13 of the termination agreement, and taking into the principle of contractual autonomy, the preference of the parties in favour of the labour court of the State of Rio de Janeiro was clearly expressed.

10. Taking into account all the foregoing considerations, the Chamber concluded that it was not competent to deal with the claim lodged by the Claimant in front of FIFA. As a consequence, the claim of the Claimant is inadmissible.

III. Decision of the Dispute Resolution Chamber

The claim of the Claimant, Rodrigo Sebastián Aguirre Soto, is inadmissible.

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Note related to the publication:

The FIFA administration may publish decisions issued by the Players’ Status Committee or the DRC. Where such decisions contain confidential information, 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 20 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber).

Note related to the appeal procedure:

According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS.

The full address and contact numbers of the CAS are the following:

Court of Arbitration for Sport

Avenue de Beaumont 2

1012 Lausanne

Switzerland

Tel: +41 21 613 50 00

Fax: +41 21 613 50 01

e-mail: info@tas-cas.org

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer