Labour Disputes
Texto da decisão
REF FPSD-3665
Decision of the
Dispute Resolution Chamber
passed on 9 February 2022
regarding an employment-related dispute concerning the player Diego
Francisco Rocha
BY:
Alexandra Gómez Bruinewoud (Netherlands) (Uruguay)
CLAIMANT:
Diego Francisco Rocha, Brazil
Represented by Nuno Rego
RESPONDENT:
Os Belenenses Futebol SAD, Portugal
Represented by Carlos Soares and Natacha Soares
Page 2
REF FPSD-3665
I.
Facts of the case
1.
On 17 May 2019, the Brazilian player, Diego Francisco Rocha (hereinafter: the Claimant), and
the Portuguese club, Os Belenenses Futebol SAD (hereinafter: the Respondent) concluded an
employment contract (hereinafter: “the contract”), valid from 1 July 2019 to 30 June 2022.
2.
On 12 July 2021, the parties agreed to mutually terminate the contract and concluded a
mutual termination agreement (hereinafter: “termination agreement”)
3.
In accordance with clause 2 of the termination agreement, the Respondent agreed to pay to
the Claimant, the amount of EUR 48,000 net, payable in ten subsequent instalments on the
25th day of each month, with the first instalment due on 25 July 2021.
4.
Additionally, clause 5 of the termination agreement stipulated the following:
“Clause Five
(Competent court)
To settle any dispute arising from this Agreement, the courts of the Forum of Lisbon will be
competent, with express waiver of any other.”
5.
The Claimant did not send any default notices to the Respondent prior to lodging his claim
at FIFA.
II. Proceedings before FIFA
6.
On 15 September 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
7.
The requests for relief of the Claimant, were that the Respondent, pay to the Claimant:
(a) EUR 48,000 net, corresponding to the full outstanding amount due under the termination
agreement plus 5% interest p.a. from the due dates until date of effective payment; and
(b) the cost of the proceedings and make a contribution towards the Claimant’s legal costs.
8.
According to the Claimant, the Respondent has breached the termination agreement.
9.
The Claimant further indicated that the non-payment of one instalment implies the maturity
of the remaining instalments and in this context referred to article 781 of the Portuguese Civil
Code:
“Article 781
(Debt payable in Instalments)
Page 3
REF FPSD-3665
If the obligation may be settled in two or more instalments, the failure to pay one of them
shall imply the payment of all of them.”
10. Accordingly, the Claimant concluded that the full amount of EUR 48,000 net is due and
payable by the Respondent.
b. Position of the Respondent
11. In reply to the claim the Respondent firstly contested FIFA's jurisdiction based on clause 5 of
the termination agreement which stipulates the following:
“To settle any disputes arising from this contract, the courts of the forum of Lisbon will have
jurisdiction, with express waiver of any other”.
12. According to the Respondent the parties agreed that in case of a dispute arising from the
termination agreement, the civil courts of Lisbon would have exclusive jurisdiction.
13. In view of the foregoing, the Respondent indicated that the DRC are not competent to review
and resolve this dispute, due to lack of jurisdiction.
14. The Respondent further mentioned that it in any event paid the first instalment in the amount
of EUR 4,800 to the Claimant by bank transfer. Consequently, the amount due to the
Claimant should be reduced to EUR 43,200.
15. Moreover, the fourth, fifth, sixth, seventh, eight, nineth and tenth instalments of the
termination agreement has not yet matured.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
16. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Single Judge)
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 15 September 2021 and submitted for
decision on 9 February 2022. 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), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.
17. Subsequently, the Single Judge 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 employmentrelated dispute with an international dimension between a Brazilian player and a Portuguese
club.
Page 4
REF FPSD-3665
18. However, the Single Judge acknowledged that the Respondent, on the one hand, contested
the competence of FIFA’s deciding bodies on the basis of clause 5 of the termination
agreement, alleging that the exclusively competent body to deal with any dispute deriving
from the relevant termination agreement are the civil courts in Lisbon, Portugal.
19. Taking into account all the above, the Single Judge 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, coach, association, or club to seek redress before a civil court for employment-related
disputes”.
20. In the present matter, the Single Judge duly noted that the Claimant and the Respondent had
unambiguously and exclusively decided that all disputes that would arise from the contract
would be submitted to the exclusive jurisdiction of the local courts in Lisbon.
21. The Single Judge recalled that parties may freely agree to give jurisdiction to a civil court, and
that such choice shall prevail.
22. In fact, the Single Judge, recalling the Chamber’s jurisprudence in this regard, FIFA is not
competent when the parties have exclusively agreed upon the jurisdiction of a civil court in a
specific region or city. In addition, the Single Judge emphasised that art. 22 par. 1 of the
Regulations provides a clear hierarchy in favour of contractual autonomy.
23. Having analysed the wording of clause 5 of the termination agreement, the Single Judge
concluded that said clause indeed provides for a clear and exclusive jurisdiction clause for the
jurisdiction of a civil court, i.e. the courts of the forum of Lisbon.
24. In view of all the above, the Single Judge concluded that it was not competent to hear the
dispute between the Claimant and the Respondent, and consequently, declared the claim
inadmissible.
b. Costs
25. 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.
26. 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.
Page 5
REF FPSD-3665
27. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
Page 6
REF FPSD-3665
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Diego Francisco Rocha, is inadmissible.
2. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
Page 7
REF FPSD-3665
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
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
Page 8