Labour Disputes
Texto da decisão
REF FPSD-6568
Decision of the
Dispute Resolution Chamber
passed on 13 October 2022
regarding an employment-related dispute concerning the player Nagela Oliveira
de Andrade
COMPOSITION:
Frans de Weger (the Netherlands), Chairperson
Laurel Vaurasi (Fiji), member
Stefano Sartori (Italy), member
CLAIMANT:
Nagela Oliveira de Andrade, Brazil
Represented by Rafael Carvalho Cunha
RESPONDENT:
SC Braga, Portugal
Represented by Luis Cassiano Neves; Matilde Costa Días; Gabriel
Eguinoa
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REF FPSD-6568
I. Facts of the case
1.
On 18 June 2020, the Brazilian player, Nagela Oliveira de Andrade (hereinafter: the
Claimant), and the Portuguese club, SC Braga (hereinafter: the Respondent) signed an
employment contract (hereinafter: the contract) valid as from 1 July 2021 until
30 June 2022.
2.
In accordance with article 4 of the contract, the Respondent undertook to pay to the
Claimant the following remuneration:
“i) for the 2020/2021 season, an amount of EUR 10,200
ii) for the, 2021/2022 season, an amount of EUR 12,000.”
3.
Additionally, article 4 of the contract stipulated the following:
“Remunerations for the 2020/2021 and 2021/2022 seasons will be paid in 12 monthly
instalments throughout the season, with the first instalment due on August 5, 2020, and the
remainder on the same day of the following months.
The parties also agree that the second party will be entitled, during the period of validity of the
aforementioned contract, to a monthly subsistence allowance of €395.00 (three hundred and
ninety-five euros) in the 2022/2021 season and 375.00 €. (Three hundred and seventy-five
euros) in the 2021/2022 season, I have nothing else to complain to the first grantor with regard
to salary or other equivalent remuneration.”
4.
Article 11 of the contract stipulated:
“1. Considering the relevant interest that the conclusion of this contract assumes, namely
taking into account the investment made and to be made by the first party, in the training,
promotion and enhancement of the second party and women's football, in the event of early
termination of this contract , without just cause, promoted by the second party, or in case
of breach of contract, attributable to the second party, the latter will pay the club, as a
termination clause/penal clause, an amount not less than €1,000,000.00 ( one million
euros), without prejudice to the first party being able to claim compensation for the
damages actually suffered, if they are of a higher amount, and the payment of the indemnity
or compensation provided for in the sporting regulations
2. The parties acknowledge that the amount referred to in this clause appears to be adequate
to the facts and nature of this contract, the second party expressly waives the right to invoke
its disproportionality.”
5.
Furthermore, article 17 of the contract stipulated the following:
“1. The parties choose Portuguese law as applicable to this agreement.
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2. To resolve any issues arising from this agreement, the Parties elect exclusively and with
waiver of any other, the court of the district of Braga.”
6.
According to the Claimant, the Respondent failed to pay her “any salary from July 2021 to
June 2022, which € 12,000.00 (twelve thousand euros) for salaries the second season and a
subsistence allowance of € 4,500.00 (four thousand and five hundred euros), total € 16,500.00
(sixteen thousand and five hundred euros)”
7.
On 30 August 2021 the Claimant sent a default notice to the Respondent informing it of
its breach of contract.
II. Proceedings before FIFA
8.
On 30 June 2022, 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
9.
According to the Claimant after the first season she went on vacation to Brazil “when she
received several calls from one of the directors of Sporting Clube de Braga, Mr. João Sousa,
informing her that the employment contract was ended, that she would not send the air ticket
to return to Portugal, and that she would only receive the month of July 2021.”
10. On the basis of the aforesaid, the Claimant did not return to Portugal.
11. According to the Claimant, “article 11 of the contract provides for a penal clause for early
termination of this contract, without just cause (breach of contract). We require that this be
applied, since article 17 of the FIFA RSTP allows the payment of compensation provided for in
the contract, €1,000,000.00 (one million euros), and according to the principle of equality the
contract must be enforced and the party that breaches the contract must suffer the penalty
clause” Therefore, the Claimant requested that the Respondent pay here the amount of
EUR 1,016,500.
b. Position of the Respondent
12. In its reply, the Respondent firstly contested FIFA's jurisdiction based on the jurisdiction
provision i.e., article 17 (2) agreed to in the contract between the parties.
13. In view of the foregoing, the Respondent indicated that the DRC is not competent to
review and resolve this dispute, due to lack of jurisdiction as such clause essentially refers
to the competent authority in Braga, “to solve any disputes between the Parties, with the
express waiver of any other.”
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14. In any event the Respondent stipulated that “in the unlikely event that FIFA declares it has
jurisdiction to solve the present dispute, the Respondent firmly believes that, given the factual
background, established jurisprudence, and the evidenced adduced, the Claim presented by
the Claimant is groundless and shall thus be rejected, based on the following reasons:
“(i) The Player did not have just cause to terminate the Contract
(ii) The Player’s continued and unjustified absence for a long period of time constitutes just
cause for the Club, and not the player, to unilaterally terminate the Contract
(iii) The Club’s conduct towards the Player has been in no way unjustified, let alone ‘threatening’
towards the Player as against the latter’s unproven and baseless allegations
(iv)The termination clause in the Employment Agreement works in favor of the Club, and not
otherwise, and therefore, the Respondent shall be awarded with the amount determined
under Article 11 of the Agreement for the termination without just cause by the Claimant of
such agreement.”
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
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 presented to FIFA on 30 June 2022 and submitted
for decision on 13 October 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.
2.
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 October 2022 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 Brazilian player and a Portuguese club.
3.
Subsequently, the Chamber analysed which regulations should be applicable as to the
substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Players (October 2022 edition) and
considering that the present claim was lodged on 30 June 2022, the June 2022 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
4.
The Chamber acknowledged that the Respondent, on the one hand, contested the
competence of FIFA’s deciding bodies on the basis of a jurisdiction clause agreed to
between the parties in the contract, alleging that the competent body to deal with any
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dispute deriving from the relevant employment contract is the courts of the district of
Braga, Portugal.
5.
Taking into account all the above, the Chamber emphasised that in accordance with
art. 22 par. 1 of the Regulations, FIFA is competent to hear employment-related disputes
between a player and a club with an international dimension “without prejudice to the right
of any player (…) or club to seek redress before a civil court for employment related disputes”.
6.
In the present matter, the Chamber duly noted that the Claimant and the Respondent
had unambiguously and exclusively decided that any dispute that would arise from the
contract would be submitted to the courts of the district of Braga, Portugal.
7.
The Chamber recalled that parties may freely agree to give jurisdiction to a civil court, and
that such choice shall always prevail. In fact, the Chamber, recalling its jurisprudence as
well as the CAS jurisprudence in this regard, highlighted that even if the choice of law does
not specify which courts are competent (e.g., a generic reference is made to a region/city),
FIFA is not competent when the parties have exclusively agreed upon the jurisdiction of a
civil court. In addition, the Chamber emphasised that art. 22 par. 1 of the Regulations
provides a clear hierarchy in favour of contractual autonomy.
8.
In view of all the above, the Chamber concluded that it was not competent to hear the
dispute between the Claimant and the Respondent.
b. Costs
9.
The Chamber 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, the Chamber decided that no procedural costs were
to be imposed on the parties.
10. 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.
11. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1. The Football Tribunal does not have jurisdiction to hear the claim of the Claimant, Nagela
Oliveira de Andrade.
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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