Labour Disputes
Texto da decisão
REF FPSD-2187
Decision of the
Dispute Resolution Chamber
passed on 12 November 2021
regarding an employment-related dispute concerning the player Romulo
Otero Vasquez
COMPOSITION:
Clifford J. Hendel (USA & France), Deputy Chairperson
Stella Maris Juncos (Argentina), member
Alejandro Atilio Taraborrelli (Argentina), member
CLAIMANT:
Romulo Otero Vasquez, Venezuela
Represented by Carlezzo Advogados Associados
RESPONDENT:
Atletico MG, Brazil
Represented by Luiz Fernando Ribeiro and Gustavo Nogueira
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I.
Facts of the case
1.
On 21 August 2020, the Venezuelan player, Romulo Otero Vasquez (hereinafter: the
Claimant), and the Brazilian club, Clube Atlético Mineiro (hereinafter: the Respondent) signed
a settlement agreement (hereinafter: the Contract), according to which the Respondent
undertook to pay the Claimant the total amount of USD 417,105.92, payable in 11 monthly
instalments of USD 37,918.72 each, as from 20 September 2020 until 20 July 2021.
2.
In accordance with the Contract, the relevant due date for the instalments fell on the 20th day
of each month.
3.
Clause 8 of the Contract read as follows (free translation from Spanish):
“8.
In accordance with Federal Law No. 9.307 / 1996 (Arbitration Law) and article 507-A, of
Decree Law No. 5.452 / 1943 (Consolidation of Labor Laws), the parties freely and
consensually stipulate that any dispute, controversy or claim arising, among others, from the
validity, interpretation, compliance or termination of this Instrument (including its
amendments and the validity of this Commitment Clause), and any legal relationship
associated with this Instrument I, shall be resolved through Arbitration Procedure, to be held
before the National Chamber for Dispute Resolution (CNRD) of the Brazilian Football
Confederation (CBF) or, successively, in the event that the CNRD for any reason is declared
incompetent for the appreciation of labor issues, before the Brazilian Corporate Arbitration
Chamber (CAMARB), in the city of Belo Horizonte, state of Minas Gerais.”
4.
Clause 8.1 of the Contract established as follows (free translation from Spanish):
“Either party may, at its sole discretion, choose to refer any dispute arising out of this
Agreement to the competent body of FIFA, said choice being final for the parties upon
registration of the claim.”
II. Proceedings before FIFA
5.
On 30 March 2021, 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
6.
In its claim, the Claimant submitted that the Respondent failed to comply with its financial
obligations under the Contract.
7.
In this respect, the Claimant referred to the monthly instalments which had become due by
the date of submission of the claim, namely by March 2021, plus all the further instalments
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that would eventually fall during the proceeding in front of FIFA (i.e. April, May, June and July
2021).
8.
In addition to the above, the Claimant requested the application of a 5% p.a. interest over
the outstanding sums, running as of the respective due dates.
9.
Therefore, the Claimant requested that the Respondent be ordered to pay the following:
USD 37,918.72 as outstanding instalment for September 2020 plus 5% interest
p.a. as from 21 September 2020 until the date of effective payment.
USD 37,918.72 as outstanding instalment for October 2020 plus 5% interest p.a.
as from 21 October 2020 until the date of effective payment.
USD 37,918.72 as outstanding instalment for November 2020 plus 5% interest p.a.
as from 21 November 2020 until the date of effective payment.
USD 37,918.72 as outstanding instalment for December 2020 plus 5% interest p.a.
as from 21 December 2020 until the date of effective payment.
USD 37,918.72 as outstanding instalment for January 2021 plus 5% interest p.a.
as from 21 January 2021 until the date of effective payment.
USD 37,918.72 as outstanding instalment for February 2021 plus 5% interest p.a.
as from 21 February 2021 until the date of effective payment.
USD 37,918.72 as outstanding instalment for March 2021 plus 5% interest p.a. as
from 21 March 2021 until the date of effective payment.
USD 37,918.72 as outstanding instalment for April 2021 plus 5% interest p.a. as
from 21 April 2021 until the date of effective payment.
USD 37,918.72 as outstanding instalment for May 2021 plus 5% interest p.a. as
from 21 May 2021 until the date of effective payment.
USD 37,918.72 as outstanding instalment for June 2021 plus 5% interest p.a. as
from 21 June 2021 until the date of effective payment.
USD 37,918.72 as outstanding instalment for July 2021 plus 5% interest p.a. as
from 21 July 2021 until the date of effective payment.
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b. Position of the Respondent
10. As preliminary objection to the claim, the Respondent contested FIFA’s competence over the
present matter.
11. In fact, according to the Respondent, Clause 8 of the Contract would expressly exclude FIFA’s
jurisdiction as the Parties have opted for the Câmara Nacional de Resolução de Disputas
(hereinafter to be referred as the “CNRD”) - which is the Brazilian Football Confederation
(CBF) National Dispute Resolution Chamber - to decide any conflict arisen out from the
Contract.
12. In this context, the Respondent accused the Claimant of having misinterpreted clause 8.1 of
the Contract. In fact, according to the Respondent, the interpretation of clause 8.1 shall be
conducted coherently with the provision contained under the abovementioned clause 8.
Therefore, in the Respondent’s view, it shall be stressed that the Parties’ intention, when
stipulating the inclusion of clause 8.1 of the Contract, was to name FIFA’s jurisdiction as
alternative tool of regulation in the sole cases in which the CNRD had been declared
incompetent for the resolution of potential labour disputes.
13. In a subsidiary plea, specifically in the event that FIFA confirmed its competence, the
Respondent requested the exclusion from the overall amount awarded of those instalments
that would have fallen due after the date of submission of the claim (i.e. from 20 April 2021
until 20 July 2021).
14. In this respect, the Respondent argued that the Claimant would have been entitled to claim
the above referred sums only as of the respective due dates and, in any case, only before the
CNRD.
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) 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 March 2021 and submitted for decision on 12
November 2021. Taking into account the wording of art. 34 of the October 2021 edition of
the Procedural Rules Governing the Football Tribunal (hereinafter: the Procedural Rules), said
edition of the Procedural Rules is applicable to the matter at hand.
16. Subsequently, 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 (August 2021 edition), the Dispute Resolution Chamber is,
in principle, competent to deal with the matter at stake, which concerns an employment-
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related dispute with an international dimension between a Venezuelan player and a Brazilian
club.
17. However, the Chamber took note of the Respondent’s objection, according to which, the
CNRD shall be recognized as the competent judicial body in casu.
18. With the aforementioned consideration in mind, and prior to 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.
19. 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 another organ than the DRC can
settle an employment-related dispute between a club and a player of an international
dimension, is that the competence of the relevant arbitration tribunal, respectively national
court, derives from a clear reference in, inter alia, the contract at the basis of the dispute.
20. Therefore, while analysing whether it was competent to adjudicate the present matter, the
Chamber considered that it should, first and foremost, analyse whether the contract at the
basis of the present dispute actually contained a clear and exclusive jurisdiction clause in
favour of the CNRD.
21. In this context, the Chamber observed that the Contract signed by the parties, in particular
under clause 8.1, expressly recognizes the competence of FIFA over every potential dispute
arising from said contract. Hence, the Chamber confirmed that the reasoning advanced by
the Respondent could not be followed on the basis that the Contract gave to the parties the
faculty of opting for FIFA jurisdiction, without any priority, or exclusivity, ascribable to the
CNRD.
22. For the sake of clarity, the Chamber recalled that FIFA article 22 of the Regulations – in
addition to defining the parties that have standing to appear in front of the Football Tribunal
- also provides an exhaustive enumeration of the types of disputes FIFA is competent to hear.
The DRC emphasized that the scope of FIFA jurisdiction is not open to the parties’ discretion;
it derives from the FIFA Statutes and the Regulations, and not from private agreements
between parties such as the Contract at hand. What follows from the above is that a
jurisdiction clause in an employment contract giving competence to a particular deciding body
(or the FT) is not per se binding on the DRC, for its competence derives not from the
contractual arrangements between any given parties but in fact from the Regulations.
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23. The foregoing reasoning applied in casu confirms that the DRC is competent to hear the
present dispute insofar as there was no clear and exclusive jurisdiction clause under the
Contract setting aside the competence of FIFA in favour of the CNRD on an exclusive basis.
The claim was ruled therefore admissible.
24. 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 Player (August 2021 edition), and
considering that the present claim was lodged on 30 March 2021, the February 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
25. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 13 par. 5 of
the Procedural Rules, according to which a party claiming a right on the basis of an alleged
fact shall carry the respective burden of proof. Likewise, the Chamber stressed the wording
of art. 13 par. 4 of the Procedural Rules, pursuant to which it may consider evidence not filed
by the parties, including without limitation the evidence generated by or within the Transfer
Matching System (TMS).
c. Merits of the dispute
26. Its competence and the applicable regulations having been established, the Chamber entered
into the merits of the dispute. In this respect, the Chamber started by acknowledging all the
above-mentioned facts as well as the arguments and the documentation on file. However,
the Chamber emphasised that in the following considerations it will refer only to the facts,
arguments and documentary evidence, which it considered pertinent for the assessment of
the matter at hand.
i. Main legal discussion and considerations
27. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the Respondent did not dispute either the validity of the
Contract or the quantum of the relevant instalments, but only the Claimant’s faculty to
demand the instalments which appear not to be due at the time of lodging the present claim.
28. In this context, the Chamber acknowledged that, at the date of the decision, all the
instalments stipulated under the Settlement Agreement have become due and are therefore
collectible.
29. Furthermore, for reasons of procedural economy and in line with the longstanding
jurisprudence of the Football Tribunal, it shall be safeguarded the Claimant’s right to claim
sums that became collectible while the proceeding is pending, in order not to oblige the
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creditor party to start a new redundant procedure on the basis of the same contractual
obligations previously recognized.
30. With the above in mind and based on the principle pacta sunt servanda, the Chamber decided
that the Claimant shall be awarded all the instalments due under the Contract, namely as of
September 2020 until July 2021.
31. Moreover, taking into consideration the Claimant’s request as well as the constant practice
of the Dispute Resolution Chamber, the Chamber established that a 5% per annum interest
shall be charged over each outstanding instalment running as of the day following the
respective due dates, until the date of their effective payment.
ii. Compliance with monetary decisions
32. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24bis
par. 1 and 2 of the Regulations, which stipulate that, with its decision, the pertinent FIFA
deciding body shall also rule on the consequences deriving from the failure of the concerned
party to pay the relevant amounts of outstanding remuneration and/or compensation in due
time.
33. In this regard, the Chamber highlighted that, against clubs, the consequence of the failure to
pay the relevant amounts in due time shall consist of a ban from registering any new players,
either nationally or internationally, up until the due amounts are paid. The overall maximum
duration of the registration ban shall be of up to three entire and consecutive registration
periods.
34. Therefore, bearing in mind the above, the Chamber decided that the Respondent must pay
the full amount due (including all applicable interest) to the Claimant within 45 days of
notification of the decision, failing which, at the request of the Claimant, a ban from
registering any new players, either nationally or internationally, for the maximum duration of
three entire and consecutive registration periods shall become immediately effective on the
Respondent in accordance with art. 24bis par. 2, 4, and 7 of the Regulations.
35. The Respondent shall make full payment (including all applicable interest) to the bank account
provided by the Claimant in the Bank Account Registration Form, which is attached to the
present decision.
36. The Chamber recalled that the above-mentioned ban will be lifted immediately and prior to
its complete serving upon payment of the due amounts, in accordance with art. 24bis par. 8
of the Regulations.
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d. Costs
37. 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.
38. 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.
39. Lastly, the Chamber concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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Decision of the Dispute Resolution Chamber
1. The claim of the Claimant, Romulo Otero Vasquez, is admissible
2. The claim of the Claimant is partially accepted.
3. The Respondent, Atletico MG, has to pay to the Claimant, the following amount:
USD 37,918.72 as outstanding remuneration plus 5% interest p.a. as from 21
September 2020 until the date of effective payment.
USD 37,918.72 as outstanding remuneration plus 5% interest p.a. as from 21 October
2020 until the date of effective payment.
USD 37,918.72 as outstanding remuneration plus 5% interest p.a. as from 21
November 2020 until the date of effective payment.
USD 37,918.72 as outstanding remuneration plus 5% interest p.a. as from 21
December 2020 until the date of effective payment.
USD 37,918.72 as outstanding remuneration plus 5% interest p.a. as from 21 January
2021 until the date of effective payment.
USD 37,918.72 as outstanding remuneration plus 5% interest p.a. as from 21 February
2021 until the date of effective payment.
USD 37,918.72 as outstanding remuneration plus 5% interest p.a. as from 21 March
2021 until the date of effective payment.
USD 37,918.72 as outstanding remuneration plus 5% interest p.a. as from 21 April
2021 until the date of effective payment.
USD 37,918.72 as outstanding remuneration plus 5% interest p.a. as from 21 May
2021 until the date of effective payment.
USD 37,918.72 as outstanding remuneration plus 5% interest p.a. as from 21 June
2021 until the date of effective payment.
USD 37,918.72 as outstanding remuneration plus 5% interest p.a. as from 21 July
2021 until the date of effective payment.
4. Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
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5. Pursuant to art. 24bis of the Regulations on the Status and Transfer of Players (February 2021
edition) if full payment (including all applicable interest) is not made within 45 days of
notification of this decision, the following consequences shall apply:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration the ban shall
be of three entire and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee in the event that full payment (including all applicable interest) is still not
made by the end of the three entire and consecutive registration periods.
6. The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24bis par. 7 and 8 and art. 24ter of the Regulations on the Status and Transfer of
Players.
7. 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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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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