Labour Disputes
Texto da decisão
REF. FPSD-9206
Decision of the
Dispute Resolution Chamber
passed on 11 May 2023
regarding an employment-related dispute concerning
the player Cassiano Dias Moreira
BY:
Clifford J. Hendel (USA & France), Deputy Chairperson
Stella Maris Juncos (Argentina), member
Alejandro Atilio Taraborrelli (Argentina),member
CLAIMANT:
Cassiano Dias Moreira, Brazil
Represented by Mariju Maciel e Marina Maciel Advogados & Associados
RESPONDENT:
Boavista FC, Portugal
pg. 2
REF. FPSD-9206
I. Facts of the case
1.
On 29 July 2019, the Brazilian player, Cassiano Dias Moreira (hereinafter: Claimant or player)
and the Portuguese club, Boavista FC (hereinafter: club or Respondent) concluded an
employment contract (hereinafter: contract) valid as from 29 July 2019 until 30 June 2021.
2.
According to the contract, the Respondent undertook to pay the Claimant EUR 100,000 per
season.
3.
On 7 September 2020, the parties concluded a termination agreement (hereinafter:
termination agreement), according to which the Respondent undertook to pay the Claimant
the total amount of EUR 45,000, payable in 8 instalments.
4.
On 14 June 2021, after a claim lodged by the Claimant, a Portuguese court decided that the
Respondent has to pay the Claimant the amount of EUR 45,000 along with interest of EUR
1,001.10.
5.
On 16 June 2021, the parties concluded a “payment agreement” (hereinafter: settlement
agreement), which established the payments by the Respondent to the Claimant as follows:
- EUR 15,000 within 3 days upon signing;
- EUR 10,000 on 29 July 2021;
- EUR 10,000 on 29 August 2021;
- EUR 10,000 on 29 September 2021.
6.
Furthermore, the settlement agreement reads as follows:
- First clause: “The [club] was condemned by sentence dated 14-06-2021, in the scope
of the case 6688/212T8PRT, which ran its terms at the Judicial court of Porto […] to the
payment of EUR 45,000 to the [player].”
- Art. 3: “With default and delay in the payment one or more instalments, the [player]
may demand from the [club] the entire amount owed”.
- Art. 4: “With the failure to pay the amount in debt by the [club], the [player] is entitled
to the interest for which the [club] was convicted in the sentence mentioned in first
clause”.
pg. 3
REF. FPSD-9206
II. Proceedings before FIFA
7.
On 9 February 2023, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a. Position of the Claimant
8.
In his claim, the Claimant requested payment of the following monies:
-
EUR 30,000 as outstanding instalments from the settlement agreement;
EUR 1,001.10 as interest awarded by the Portuguese court;
Further, the Claimant requested interest of 7% p.a. as of 5 October 2020 (based on
Portuguese law).
9.
The player argued that the Respondent remitted the first instalment of the settlement
agreement, but subsequently failed to remit the other three instalments.
10. On account of the above, and due to the content of the settlement agreement, the Claimant
maintained being entitled to the interest amount of EUR 1,001.10 awarded by the
Portuguese court as well as interest of 7% p.a. as of 5 October 2020 (based on Portuguese
law).
b. Position of the Respondent
11. In its reply, the Respondent challenged FIFA’s competence to decide the matter at hand
due to an alleged competence of “the judicial court of Oporto”.
12. As to the substance, the club rejected the claim.
13. Boavista pointed out that due to the economic effects of COVID-19 it became impossible
for the Portuguese club to comply with its financial obligations.
14. The Respondent argued that this development is a “world crisis not attributable” to Boavista.
pg. 4
REF. FPSD-9206
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
15. 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 9 February 2023 and submitted
for decision on 11 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.
16. 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 (March 2023 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
player and a club.
17. The Chamber however noted that other claims, based on the termination agreement at the
end of the employment relationship, were previously lodged by the player against the club
before other deciding bodies, namely before a local court in Portugal.
18. In view of the foregoing, the Chamber established that it would have to analyse whether it
is in fact competent to deal with the present matter as to the substance.
19. In this respect, the Chamber took note that the local court in Portugal rendered a decision
in the above-mentioned dispute on 14 June 2021. Such decision is at the basis of the
settlement agreement concluded between the parties on 16 June 2021. While the Claimant
deems that FIFA is competent to deal with the substance of the present matter , the
Respondent deems that the claim should be deemed inadmissible, since the local court in
Portugal was exclusively competent.
pg. 5
REF. FPSD-9206
20. At this point, the Chamber deemed it important to underline that in the spirit of the
applicable regulations, a player – or a club – who actively decides to bring forward a dispute
before a local deciding body, rather than making use of the alternative dispute resolution
process proposed within the legal framework of FIFA, must demonstrate consistency in
relation to the choice of the course of action. The Chamber further held that it cannot
condone the attitude of a party who at first decides to submit a labour dispute to a
competent, specific, local deciding body, and subsequently decides to submit this dispute
(between the same parties, based on the same legal framework) to FIFA; the same is to be
noted if the party submits a claim before FIFA and thereafter seeks to lodge the same claim
in front of different national bodies. Finally, the Chamber emphasised that a party who
chooses a certain course of legal remedy may not then decide to change the legal forum of
the dispute, as this would jeopardise the credibility of the sporting dispute resolution
system.
21. In this respect, the Chamber referred to the principle of Electa una via, non datur recursus
ad alteram and understood that in the present case the Claimant elaborated and developed
an inconsistent procedural strategy, known as Forum Shopping, by lodging different claims
before different competent deciding bodies with a view to obtain the most advantageous
possible outcome. Consequently, the Chamber concluded that the Claimant’s claim in front
of FIFA is inadmissible.
pg. 6
REF. FPSD-9206
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Cassiano Dias Moreira, is inadmissible.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 7
REF. FPSD-9206
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
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pg. 8