Labour Disputes
Texto da decisão
REF FPSD-8344
Decision of the
Dispute Resolution Chamber
passed on 12 December 2022
regarding an employment-related dispute concerning the player
Guilherme Henrique da Silva
BY:
Frans DE WEGER, the Netherlands
CLAIMANT:
Guilherme Henrique da Silva, Brazil
Represented by Pedro Macieirinha
RESPONDENT:
Academica Coimbra OAF, Portugal
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I. Facts of the case
1.
On 2 June 2021, the Brazilian player, Mr Guilherme Henrique da Silva (hereinafter: the
player or the Claimant), and the Portuguese club, Academica Coimbra OAF (hereinafter:
the club or the Respondent) concluded an employment contract valid as from 1 July 2021
until 30 June 2023 (hereinafter: the employment contract).
2.
Pursuant to clause 3 of the employment contract, the club undertook to pay the player
the following amounts:
a. For the 2021/2022 season: EUR 24,000 payable in 12 monthly instalments of
EUR 2,000 each, being the first on 5 August 2021 and the others in the same of
the subsequent months; and
b. For the 2022/2023 season: EUR 24,000 payable in 12 monthly instalments of
EUR 2,000 each, being the first on 5 August 2022 and the others in the same of
the subsequent months.
3.
In addition, clause 3 par. 3 and 4 of the employment contract read as follows (freely
translated to English by the player):
“3. [The club] also undertakes to provide the player with food and accommodation at
the club’s training centre, while the player is integrated in the under-23 team.
4. If, during the term of the present contract, the player becomes a member of the club’s
senior team, [the club] undertakes to provide only suitable accommodation for the
player, with water, electricity, gas and television / internet charges being paid by the
player, the player being liable to compensate [the club] for the amounts corresponding
to these expenses that may be charged to the player’s salary”.
4.
Clause 14 of the employment contract reads as follows (freely translated to English by the
player):
“To settle any possible litigation arising from the present contract, the parties agree to
submit the respective resolution to the Sports Arbitration Court (TAD) with the
headquarters in Lisbon, with exclusion of any other”.
5.
On 14 June 2022, the player notified the club of the termination of the employment
contract due to overdue payables (hereinafter: the termination letter). He contextually
requested payment of (i) EUR 6,000 as outstanding salaries, (ii) EUR 26,000 as
compensation for breach of contract, and (iii) EUR 6,407.84 as reimbursement of
expenses with water, electricity, and housing. A copy of the termination letter was also
forwarded to the Portuguese Football Federation (FPF) and the Portuguese Union of
Professional Football Players (SJPF).
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6.
On 1 July 2022, the Comissão Arbitral Paritária (CAP) rendered a decision inter alia
acknowledging the player’s right to terminate the employment contract with the club
(hereinafter: the CAP Decision).
7.
Subsequently and on an unspecified date, the player received EUR 9,500 from the club.
According to the player, such amount corresponded to the salaries of March, April, and
May 2022 (EUR 6,000) plus part of the compensation for breach of contract (EUR 2,000 for
June 2022 and EUR 1,500 for the 2022/2023 season).
8.
On 14 September 2022, the player lodged a claim before the Tribunal Arbitral do Desporto
(TAD) in Portugal for an amount of EUR 28,907.84. The case was filed under ref. No.
64/2022.
9.
On 15 September 2022, the TAD’s general secretariat requested the player to pay the
procedural costs amounting to EUR 750. In reply, the player filed a request for legal aid.
10. On 27 September 2022, the TAD rejected the player’s request for legal aid. Consequently,
he was requested to pay the procedural costs in order to continue with the proceedings.
11. On 3 October 2022, the player withdrew his claim before the TAD. On the same date, the
TAD general secretariat acknowledged receipt of the player’s letter and case ref. No.
64/2022 was closed.
12. On 10 October 2022, the player put the club in default and requested payment of EUR
28,680.21 within 10 days, corresponding to compensation for breach of contract and
reimbursement of expenses.
II. Proceedings before FIFA
13. On 24 November 2022, the player lodged a claim against the club in front of FIFA.
14. In his claim, the player initially referred to the Portuguese national law and Collective
Bargaining Agreement (CBA). In this context, he argued that the employment contract was
terminated with just cause due to overdue payables, entailing that he should be entitled
to compensation.
15. In addition to the reference to the national law, the player also explained that FIFA
regulations should be applicable, and that the FIFA Dispute Resolution Chamber (DRC)
should be competent to hear this dispute regardless of the jurisdiction clause included in
the employment contract. In particular, he pointed out that the club never contested
DRC’s jurisdiction and he did not have ways to pay the procedural costs before TAD.
16. In light of the above, the requests for relief of the player were as follows:
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“a. Condemn the Respondent Club to pay to the Claimant Player:
i. the compensation corresponding to the contractually due remuneration,
for the 2022/2023 sports season, specifically in the months from July 2022
to June 2023, inclusive, in the total gross amount of EUR 22,500;
ii. expenses on water in the amount of EUR 227.63, on electricity in the
amount of EUR 780.21, and on accommodation in the amount of EUR
5,400, totalling EUR 6,407.84.
iii. a total of EUR 28,907.84, plus 5% interest since the overdue dates until
effective payment.
b. impose to the Respondent Club sportive and disciplinary sanctions”.
17. On 25 November 2022, the FIFA general secretariat informed the player that it did not
appear to be in a position to entertain the claim due to the lack of jurisdiction of the
Football Tribunal.
18. On 29 November 2022, the player filed additional comments on the jurisdiction of the
FIFA Dispute Resolution Chamber (DRC), which can be summarized inter alia as follows:
• according to the Portuguese CBA, the CAP has no jurisdiction to condemn the club
to pay any amount related to the employment contract. On the contrary, it “only
allowed the just cause invoked by the player to unilaterally terminate the contract for
lack of timely receipt of retribution and to allow him to register another sports contract
with another club to be verified, so, the same never appreciated monetary issues related
to the contract under discussion and matter of claim”;
• the CAP has not decided on the merits of the matter brought before the FIFA DRC,
therefore there is no res iudicata;
• the player was unable to pay the costs before the TAD, hence why he decided to
withdraw his previous claim before that court and then seek relief before FIFA
based on the art. 22, par. 1, lit. b) of the FIFA RSTP; and
• a challenge of FIFA’s competence based on the jurisdiction clause must be invoked
by the respondent, otherwise it is deemed that the choice of forum is accepted by
both parties.
19. Based on the foregoing, the player insisted that the FIFA DRC is in fact competent to enter
into the merits of this dispute, as well as reiterated his requests for relief.
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III. Considerations of the Dispute Resolution Chamber
20. First of all, the Chairperson of the FIFA DRC (hereinafter: the Chairperson) analysed
whether he was competent to deal with the case at hand.
21. In this respect, he took note that the present matter was presented to FIFA on 24
November 2022 and submitted for a preliminary decision on 7 December 2022. Taking
into account the wording of art. 34 of the October 2022 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. The Chairperson then confirmed that, in accordance with art. 19 par. 1 and 2 of the
Procedural Rules, he is competent to decide, in an expedited manner, whether the case
at stake is affected by any preliminary procedural matter (i.e., if the Football Tribunal
obviously does not have jurisdiction or if the claim is obviously time-barred). Likewise, the
Chairperson highlighted that, in case the claim is not affected by any preliminary
procedural matters, the FIFA general secretariat would be ordered to continue the
procedure (cf. art. 19 par. 3 of the Procedural Rules).
23. At his point, the Chairperson acknowledged that the case at hand consists of a claim for
breach of contract lodged by a player against a club in connection to the employment
relationship previously maintained between them.
24. In particular, the Chairperson outlined that the player terminated the employment
contract on 14 June 2022, alleging just cause due to overdue payables. Subsequently, (i)
the player opened proceedings in front of the CAP in connection with such termination;
and (ii) the CAP issued a decision acknowledging such termination and ruling that the
player complied with the criteria set out in the national law and CBA. The CAP Decision
stated inter alia that the player was “entitled” to terminate the employment contract and
no longer be registered with the club.
25. Following the CAP Decision, the player filed a claim in front of the TAD in Portugal.
According to the player, the TAD would have the jurisdiction to entertain his claim for
compensation for breach of contract. However, the player’s plead for legal aid was
rejected, hence he needed to pay the procedural costs to continue with the proceedings
in front of the TAD. As such, the player withdrew his claim before the TAD and, in
continuation, decided to seek relief before the FIFA Football Tribunal, in which he
explained that he had withdrawn his claim before the TAD due to lack of funds.
26. Against this background and after a thorough analysis of the documentation brought
forward by the player, the Chairperson considered that his claim raises preliminary
procedural issues that shall be analysed ex officio by the FIFA DRC.
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27. The Chairperson underlined 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. Accordingly, the Chairperson 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 very same 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.
28. The Chairperson equally wished to emphasise 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.
29. The Commentary to the FIFA Regulations on the Status and Transfer of Players (RSTP) –
2021 edition also sheds the following light on this topic:
“The final considerations concern the practice known as “forum shopping” – a party
taking the same matter to multiple fora in the hope of obtaining the result that suits its
purposes. The relevant jurisprudence is designed to prevent such behaviour, which is
viewed as illegitimate. A party should not be able to game the system by having multiple
fora hear the same argument in the hope one of them will hand down the judgment it
wants. For example, a party should not be allowed to ask a national body to confirm
that a contract has been breached without just cause, and then, having obtained a
favourable decision at national level, ask the DRC to set the compensation payable in
the case. The principle that a party that has chosen to have a case heard under one
competent jurisdiction cannot then have recourse to another (known colloquially as
“forum shopping”) is consistently applied” (pp. 372-3).
30. In light of the above, the Chairperson referred to the principle of electa una via, non datur
recursus ad alteram and was of the opinion that in the present case the player elaborated
and developed an inconsistent procedural strategy, i.e., Forum Shopping, by initially
pursuing his claim before the national deciding authorities and subsequently changing
the course of his action by withdrawing his claim and pleading before the FIFA DRC.
31. The Chairperson felt furthermore comforted with this conclusion by considering that: (i)
the claim filed by the player before the FIFA DRC is entirely based on the Portuguese law
and CBA, corroborating that the player had already chosen to seek relief before the
national bodies; (ii) the player’s claim is also based on the assumption that the CAP
Decision has already determined that the player had had just cause to terminate the
employment contract, suggesting that the FIFA DRC should follow the same direction and
be limited to stipulate the compensation payable by the club; and (iii) the TAD is clearly
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and exclusively competent to render a decision in accordance with the jurisdiction clause
included in the employment contract and in line with the CBA.
32. Therefore, the Chairperson considered that the player had clearly chosen to have his case
heard under the national jurisdiction, hence he cannot now have recourse to FIFA.
33. In conclusion, the Chairperson decided that the claim is inadmissible.
34. Having established the above, the Chairperson 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, he ruled that no procedural
costs were to be imposed on the parties.
35. Likewise and for the sake of completeness, the Chamber recalled the contents of art. 25
par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Guilherme Henrique da Silva, is inadmissible.
2. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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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).
CONTACT INFORMATION
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