Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed on 23 April 2020,
in the following composition:
Geoff Thom ps on (England), Chairman
Jos é Luis Andrade (Portugal), member
S tijn Boey kens (Belgium), member
on the claim presented by the player,
Rodrigo S ebas tián Aguirre S oto, 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 cas e
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”.
Player Rodrigo Sebastián Aguirre Soto, Uruguay / Club Botafogo de Futebol e Regatas, Brazil
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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.
Cons iderations of the Dis pute Res olution Cham ber
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.
Player Rodrigo Sebastián Aguirre Soto, Uruguay / Club Botafogo de Futebol e Regatas, Brazil
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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.
Player Rodrigo Sebastián Aguirre Soto, Uruguay / Club Botafogo de Futebol e Regatas, Brazil
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III.
Decision of the Dis pute Res olution Cham ber
The claim of the Claimant, Rodrigo Sebastián Aguirre Soto, is inadmissible.
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Note related to the publication:
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of a party within five days of the notification of the motivated decision, to publish an
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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: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Player Rodrigo Sebastián Aguirre Soto, Uruguay / Club Botafogo de Futebol e Regatas, Brazil
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