La Sentencia del Tribunal Superior de Justicia, Sala de lo Civil y Penal, Sección Primera, de 26 de julio de 2022, recurso nº 29/2021 (ponente: Francisco Goyena Salgado) desestima una acción de anulación contra un laudo dictado por una árbitra designada por el Comité Jurisdiccional de la Real Federación Española de Fútbol, con la siguiente argumentación:
“(…) La demanda de nulidad, impugna la resolución dictada por el Comité Jurisdiccional de la RFEF, al considerar que la cuestión resuelta no es susceptible de arbitraje, por tratarse de una cuestión laboral perteneciente al ámbito de la Jurisdicción social. Se invoca el motivo previsto en el art. 41.1º. e) LA. No podemos dejar de poner en evidencia, que ambas partes están de acuerdo en que la cuestión litigiosa que enfrenta a las partes, debe ser resuelta ante y por la Jurisdicción de lo Social Cabría apuntar al respecto, prima facie, la aplicación de lo que dispone la Ley 36/2011, de 10 de octubre, reguladora de la jurisdicción social, en el art. 1: «Orden jurisdiccional social. Los órganos jurisdiccionales del orden social conocerán de las pretensiones que se promuevan dentro de la rama social del Derecho, tanto en su vertiente individual como colectiva, incluyendo aquéllas que versen sobre materias laborales y de Seguridad Social, así como de las impugnaciones de las actuaciones de las Administraciones públicas realizadas en el ejercicio de sus potestades y funciones sobre las anteriores materias.» Y en el art. 2 a): «Ámbito del orden jurisdiccional social. Los órganos jurisdiccionales del orden social, por aplicación de lo establecido en el artículo anterior, conocerán de las cuestiones litigiosas que se promuevan: a) Entre empresarios y trabajadores como consecuencia del contrato de trabajo y del contrato de puesta a disposición, con la salvedad de lo dispuesto en la Ley 22/2003, de 9 de julio, Concursal; y en el ejercicio de los demás derechos y obligaciones en el ámbito de la relación de trabajo.» Que delimita, entre otras materias, la que es de la exclusiva competencia de dicha Jurisdicción. Ahora bien, planteada la controversia sobre si es competente, en el caso presente, el ámbito del arbitraje o la Jurisdicción social, el análisis de la cuestión por parte de la Sala, nos lleva a fijarnos en un momento anterior, que pone de relieve la parte demandada. Se señala por dicha parte, ciertamente, de forma sugerente y sagaz, que «la Resolución del Comité Jurisdiccional de la RFEF de 6.4.2021 no constituye un Laudo arbitral sometido a la Ley de Arbitraje, ni las partes sustituyeron en la cláusula decimotercera del contrato la competencia de la jurisdicción social por la de dicho Comité, que únicamente intervino como trámite previo al jurisdiccional, …» Y sigue diciendo: «El Comité no incurrió en el motivo de anulación alegado, por la sencilla razón de que su decisión arbitral no se insertó en el seno de dicha Ley, para sustituir al procedimiento jurisdiccional, sino únicamente como procedimiento previo al contencioso judicial, en evitación de éste.» Un análisis de la cláusula decimotercera, nos lleva a dar la razón a la parte demandada, con las consecuencias que se dirán”.
“(…) Establece la cláusula citada: «Para cualquier duda o disputa que pudiera surgir en relación con el desarrollo o la interpretación del presente Acuerdo, en aras a solucionar dicha disputa de manera amistosa, y antes de acudir a cualquier otro órgano competente en otras jurisdicciones, las partes expresamente se someten al procedimiento arbitral del Comité Jurisdiccional y de Conciliación de la RFEF.» De su lectura cabe afirmar que no estamos ante una cláusula compromisaria o de sumisión a arbitraje. La cláusula compromisoria, piedra angular sobre la que se construye el arbitraje, en cuanto reflejo de la autonomía de la voluntad de las partes, constituye, en palabras del Tribunal Constitucional (SSTC. 46/2020, de 15 de junio y 17/2021, de 15 de febrero), «un mecanismo heterónomo de resolución de conflictos.». En este sentido conforma, aunque no de manera única, junto con la jurisdicción ( art. 117.3º CE) los dos modelos fundamentales de solución democrática de los conflictos jurídicos entre partes. Existen, como hemos señalado otros modelos, con mayor o menor implantación en nuestro sistema de resolución de conflictos (mediación, conciliación, así como la oferta vinculante confidencial y la opinión de experto independiente, de las que se hace eco el recientemente aprobado Proyecto de ley de Medidas de Eficiencia Procesal, entre otros.), pero se diferencian sustancialmente de la jurisdicción contenciosa y del arbitraje, pues aun cuando los acuerdos a que puedan llegar las partes, puedan ser homologados judicialmente, dichos acuerdos no tienen la naturaleza característica de las sentencia -y autos, en su caso y de los laudos, en cuanto a su carácter vinculante y ejecutivo y el efecto de cosa juzgada. Aspectos a los que ha circunscrito la reciente doctrina constitucional, su anterior concepto más amplio del «equivalente jurisdiccional.» Establece el art. 9 LA, en su ap. 1 que: «El convenio arbitral, que podrá adoptar la forma de cláusula incorporada a un contrato o de acuerdo independiente, deberá expresar la voluntad de las partes de someter a arbitraje todas o algunas de las controversias que hayan surgido o puedan surgir respecto de una determinada relación jurídica, contractual o no contractual. Por su parte, el apartado 3º establece que el convenio arbitral deberá constar por escrito, en los soportes documentales que a continuación señala. La doctrina científica y la jurisprudencia ponen de relieve que lo esencial, para la eficacia de un convenio arbitral, es que conste la voluntad de las partes de someterse a arbitraje, voluntad, claro está, que ha de responder a un consentimiento válido.
Dicha constatación de la voluntad se erige como requisito único del art. 9 LA, siendo indiferente la expresión que se utilice para convenir la cláusula arbitral, al igual que la inclusión de disposiciones sobre el número de árbitros, lugar del arbitraje, etc. Cuestión distinta será la problemática de la prueba de dicha voluntad de las partes de someterse arbitraje. En este sentido se ha considerado la existencia de un convenio arbitral, por la mera referencia a un árbitro o árbitros, o por la utilización de la mera expresión «Arbitration» o «ag/arb Londres. Siendo de aplicación la Ley inglesa.» ( STSJ. Andalucía de 28-10-2014 ) Sí es preciso, por otra parte, conforme al reiterado art. 9.1º inciso final, LA, que el convenio arbitral contemple una relación jurídica determinada.» En el caso presente, aun cuando no pueda negarse que la cláusula suscrita por las partes, sea reflejo de la voluntad de las partes, no es expresión de que dicha voluntad lo sea de someterse a un arbitraje, sino más bien, como indica la parte demandada, de establecer un cauce «amistoso», que pueda, si se llega a un compromiso, evitar el acudir a la jurisdicción. La cláusula de sometimiento a arbitraje, desde luego impide un resultado fallido de la intervención heterónoma, ya que el árbitro, una vez acepta su cometido y competencia, tiene obligación de laudar ( art. 211 LA), a salvo las excepciones que prevé la propia Ley de Arbitraje (art. 36 LA). Es decir, no cabe como en otros modelos de solución de conflictos, terminar con un «intentado sin efecto o acuerdo de las partes» Y un segundo efecto, característico de la cláusula compromisaria, es que debe contemplar inequívocamente, la incompatibilidad de que las partes puedan acudir simultáneamente, o cada una por su lado, al arbitraje y a la jurisdicción. El sometimiento al arbitraje impide acudir a la jurisdicción, ciertamente en la medida en que sea denunciado por vía de declinatoria por la otra parte. No estamos aquí en un supuesto de cláusula mixta o híbrida de arbitraje. En el caso presente, la expresión «y antes de acudir a cualquier otro órgano competente en otras jurisdicciones», no solo no establece la exclusión de la vía jurisdiccional, sino que, por el contrario, es la única que, como resultado de un no acuerdo amistoso, contemplan las partes para resolver «cualquier duda o disputa que pudiera surgir en relación con el desarrollo o la interpretación del presente Acuerdo.» De hecho, el inciso último de la cláusula, sI nos fijamos, no hace referencia únicamente al arbitraje, sino también a la función conciliadora de la RFEF. Cabría, por último, señalar que no resulta acorde con la regulación española del Arbitraje, conforme a la Ley 60/2003, de 23 de diciembre, la propia resolución que dicte el Comité Jurisdiccional de la RFEF, declarando la prescripción de la acción. Dicha prescripción tiene su fundamento en el art. 50.1º del Reglamento General de la Real Federación Española de Fútbol. Se trata por tanto de una norma Reglamentaria, de inferior rango normativo que la Ley de arbitraje, en la que no se contempla una limitación temporal al ejercicio de las acciones que sustentan la pretensión de las partes, distinta y por lo tanto no inferior, a la que se establece en las Leyes Civiles y Mercantiles, respecto de materias arbitrables. Sería contrario a la seguridad jurídica el que un plazo de prescripción del ejercicio de una acción por las partes, dependa de la Institución arbitral -y de su reglamento-a la que se acuda. Dicho plazo de prescripción, que aplica el Comité Jurisdiccional, se compadece más con la labor de conciliación, que también pueda ejercer dicha institución”.
“(…) Corolario de todo lo expuesto es que no estamos ante una verdadera cláusula arbitral y por lo tanto, que las partes se hayan sometido a un arbitraje. De lo anterior, se sigue que la resolución dictada por el Comité Jurisdiccional de la RFEF, no puede ser considerada un Laudo, por lo que no es conforme al procedimiento -cuestión de orden público procesal-que contra la misma se ejercite por la parte demandante la acción de anulación, prevista en el art. 41 LA, ya que no es el cauce impugnatorio previsto normativamente frente a la resolución objeto de la presente demanda. Siendo las causas de inadmisión, causas de desestimación, procede inadmitir la demanda planteada”.
Esta decisión cuenta con un voto particular del Magistrado Jesús María Santos Vijande.
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