Labour Disputes
Texto da decisão
REF FPSD-6549
Decision of the
Dispute Resolution Chamber
passed on 31 August 2022
regarding an employment-related dispute concerning the player Erica Gomes Da
Silva Santos
BY:
Dana Mohamed Al-Noaimi (Qatar)
CLAIMANT:
Erica Gomes Da Silva Santos, Brazil
Represented by Rafael Carvalho Cunha
RESPONDENT:
CD Badajoz, Spain
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REF FPSD-6549
I.
Facts of the case
1.
On 26 July 2021, the Brazilian player, Erica Gomes Da Silva Santos (hereinafter: the Claimant), and
the Spanish club, CD Badajoz (hereinafter: the Respondent) concluded an employment contract
(hereinafter: the contract) valid from 26 July 2021 until 30 April 2022.
2.
In accordance with the contract, the Respondent undertook to pay to the Claimant an amount of
EUR 554,60 per month.
3.
Furthermore, the contract contained the following clause:
“DÉCIMO QUINTO.- Jurisdicción.
Las partes, con renuncia expresa a cualquier otro fuero que pudiera corresponderles, acuerdan someter
cuantas controversias pudieran derivarse de la interpretación o ejecución del presente contrato, a la
jurisdicción de los Juzgados y Tribunales de la ciudad de Badajoz.”
“FIFTEENTH.- Jurisdiction. (Free translation)
The parties expressly waive any other jurisdiction to which they may be entitled, agree to submit any
disputes that may arise from the interpretation or execution of this contract to the jurisdiction of the
Courts and Tribunals of the city of Badajoz. Courts of the city of Badajoz.”
4.
According to the Claimant, the Respondent failed to pay her salaries for the months of October
until December 2021 and January until April 2022 in the total amount of EUR 3,327.60.
5.
On 18 May 2022 the Claimant sent a default notice to the Respondent requesting payment of the
aforesaid outstanding amount, however to no avail.
II. Proceedings before FIFA
6.
On 28 June 2022, the Claimant filed the claim at hand before FIFA.
a.
Position of the Claimant
7.
The requests for relief of the Claimant were that the Respondent pay her the total amount of
EUR 3,326.60 corresponding to her salaries for the months of October 2021, November 2021,
December 2021, January 2022, March 2022, and April 2022.
b.
Position of the Respondent
8.
In its reply to the claim, the Respondent contested FIFA's jurisdiction based on the jurisdiction
clause agreed to in the contract between the parties, which stipulates the following:
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REF FPSD-6549
“DÉCIMO QUINTO.- Jurisdicción.
Las partes, con renuncia expresa a cualquier otro fuero que pudiera corresponderles, acuerdan someter
cuantas controversias pudieran derivarse de la interpretación o ejecución del presente contrato, a la
jurisdicción de los Juzgados y Tribunales de la ciudad de Badajoz.”
“FIFTEENTH.- Jurisdiction. (Free translation)
The parties expressly waive any other jurisdiction to which they may be entitled, agree to submit any
disputes that may arise from the interpretation or execution of this contract to the jurisdiction of the
Courts and Tribunals of the city of Badajoz. Courts of the city of Badajoz.”
9.
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.
10. The Respondent further mentioned that it, in any event paid the monthly salaries of October 2021,
November 2021, and April 2022 to the Claimant, hence the sum claimed of EUR 3,327.60 must be
reduced by the sums already collected EUR 1,265 resulting in the sum of EUR 2,062.60 being due
to the Claimant.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
11. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to as
Single Judge) analysed whether she was competent to deal with the case at hand. In this respect,
she took note that the present matter was presented to FIFA on 28 June 2022 and submitted for
decision on 31 August 2022. Taking into account the wording of art. 34 of the June 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.
12. 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 (June 2022 edition), the Single Judge is competent to deal with the matter
at stake, which concerns an employment-related dispute with an international dimension between
a Brazilian player and a Spanish club.
13. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, she confirmed that, in accordance with art. 26 par. 1 and
2 of the Regulations on the Status and Transfer of Players (June 2022 edition) and considering that
the present claim was lodged on 28 June 2022, the June 2022 edition in force on the date of claim
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
14. The Single Judge acknowledged that the Respondent, on the one hand, contested the competence
of FIFA’s deciding bodies on the basis of jurisdiction clause agreed to between the parties in the
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contract, alleging that the competent body to deal with any dispute deriving from the relevant
employment contract is the courts and tribunals of the city of Badajoz, Spain.
15. 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 (…) or club to
seek redress before a civil court for employment related disputes”.
16. In the present matter, the Single Judge 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 and tribunals of the city of Badajoz, Spain.
17. The Single Judge 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 Single Judge
emphasized that art. 22 par. 1 of the Regulations provides a clear hierarchy in favour of contractual
autonomy.
18. In view of all the above, the Single Judge concluded that she was not competent to hear the dispute
between the Claimant and the Respondent, and consequently declared the claim inadmissible.
b. Costs
19. The Single Judge 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 Single Judge decided that no procedural costs were to be imposed on the parties.
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REF FPSD-6549
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Erica Gomes Da Silva Santos, 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).
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