Labour Disputes
Texto da decisão
REF FPSD-7741
Decision of the
Dispute Resolution Chamber
passed on 8 March 2023
regarding an employment-related dispute concerning
the player Roman Rubilio Castillo Alvarez
COMPOSITION:
Frans DE WEGER (the Netherlands), Chairperson
Andre DOS SANTOS MEGALE (Brazil), member
Khadija TIMERA (Senegal), member
CLAIMANT:
Roman Rubilio Castillo Alvarez, Honduras
Represented by Diego Ariel Raguseo and Eduardo Alberto Martins
RESPONDENT:
CD Tondela, Portugal
Represented by José Miguel Sampaio e Nora
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I. Facts of the case
1.
The parties to the present dispute are the Honduran player, Roman Rubilio Castillo Alvarez
(hereinafter: the player or the Claimant) and the Portuguese club, CD Tondela (hereinafter: the
club or the Respondent).
The employment contract
2.
On 18 July 2019, the Claimant and the Respondent concluded an employment contract
(hereinafter: the contract) valid as from the same date until 30 June 2022.
3.
According to the contract, the Respondent undertook to pay the Claimant:
a.
b.
c.
4.
EUR 20,000 per month for 12 months regarding the season 2019/2020;
EUR 22,333.33 per month for 12 months regarding the season 2020/2021;
EUR 26,416.66 per month for 12 months regarding the season 2021/2022.
Clause 4 of the contract reads as follows (freely translated to English):
“1. The Parties expressly and irrevocably agree to this bilateral termination clause either Party
may, prior to the expiry of the term of this Agreement and without the need to invoke just cause
or the consent of the other Party, terminate this Agreement without notice and without the need
for just cause or the consent of the other party, terminate this Agreement provided that it makes
payment to the other Party, either itself or through any Club or any Club or SAD, the payment of
the amount of EUR 5.000.000,00 (five million Euros), plus VAT if applicable, to be paid within 7
(seven) days after the unilateral termination.
2. The Parties expressly agree and declare that the above-mentioned amount has been
established after due established after due process of discussion and negotiation and that the
same was freely agreed upon, inter alia the stability of the contractual relationship assumed
between the Parties.
3. If either of the Parties terminates the present Contract, to that effect alleging just cause whose
existence is not acknowledged, outside the period between the 30th of May and the 15th of July
30 May and 15 July, it shall be obliged to indemnify the other party for the amount referred to
in number 1 above, plus an aggravating factor of 25%.”
5.
Clause 12 of the contract reads as follows (freely translated to English):
“Cases and situations not foreseen in the present contract are governed by the CBA granted
between the National Union of Professional Football Players and the Portuguese Professional
Football League.”
6.
Clause 17 of the contract reads as follows (freely translated to English):
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“The Player undertakes to respect and comply with the regulations established by [the club] and
also with the other regulations that, without prejudice to those, govern the sporting/employment
relations entered into by the competent bodies for this purpose, declaring that he has full and
complete knowledge of the internal regulations in force at the present date.
For all disputes arising out of or in connection with this Contract, the following shall have
jurisdiction the Sport Arbitration Tribunal, in accordance with the provisions of the TAD Law,
approved by Law No. 74/2013 of 6 September by Law No. 74/2013 of 6 September 2013 and
amended by Law No. 33/2014 of 16 June 2014 in the field of Voluntary Arbitration of TAD.”
The collective bargaining agreement
7.
On an unspecified date, a collective bargaining agreement (CBA) was concluded between the
Portuguese Professional League and the Portuguese Players’ Union.
8.
Clause 9.4 of the CBA reads as follows:
“The loan contract may establish remuneration conditions remuneration conditions different
from those agreed upon in the employment contract, provided that they do not involve any
reduction in the remuneration provided for therein".
The loan agreement
9.
On 12 January 2021, the parties and the Bolivian club, Royal Pari, entered into a loan
agreement, free of payment, valid as from the same date until 31 December 2021 (hereinafter:
the loan agreement).
10. Clause 3.3 of the loan agreement establishes that the during the loan period, the Respondent
would not have to pay the player’s remuneration under the contract.
11. Under clause 4.1 of the loan agreement, Royal Pari undertook to pay the player’s salary as
from 1 February 2021. Contextually, the player and Royal Pari signed an employment contract,
valid as from 1 February 2021 until 31 December 2021, for a monthly remuneration of USD
11,000.
12. Clause 13.2 of the loan agreement reads as follows:
“Any dispute, controversy or claim arising out or in connection with this Agreement (or arising
out or in connection with the relationship between the Parties which is created by this
Agreement), including any question regarding its existence, validity or termination, may be
addressed and finally resolved by the competent decision-making bodies of FIFA”.
Termination agreement
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13. On 28 February 2022, the parties executed a termination agreement thereby ending the
contract (hereinafter: the termination agreement).
14. Clause 2 of the termination agreement reads as follows:
“1. As lump-sum financial compensation for the termination of the Employment Contract, the
Employer shall pay to the Worker the sum of EUR 26,416.66 (twenty-six thousand four hundred
and sixteen euros and sixty-six cents) gross of contributions and taxes, in two successive monthly
contribution and taxes, in two successive monthly instalments:
i. EUR 13,208.33 (thirteen thousand two hundred and eight euros and thirty-three cents), gross
of contributions and taxes, payable until contributions and taxes, to be paid until 5 February
2022.
ii. EUR 13,208.33 (thirteen thousand two hundred and eight euros and thirty-three cents), gross
of contributions and taxes, payable until 5 February 2022. contributions and taxes, to be paid
until 5 March 2022.
2. Payments of the amounts indicated in the preceding number shall be made, on the dates
indicated, by bank transfer to the bank account of [the player] used heretofore for the payment
of the salary, the Parties agreeing that [the player], with the effective payment of the transfer,
shall automatically give the respective withdrawal.
3. With the receipt of the amounts indicated in number 1 above, [the player] expressly and freely
declares that he is deemed to be fully paid and compensated in respect of any possible amounts
related to any and all claims arising from the execution or termination of the Employment
Contract and that he has no further claim against [the club] and/or any company of the Group,
including [the club], in whatever capacity, namely, but not exclusively, in the form of salaries,
holidays, holiday allowances, Christmas allowances, prizes, compensations and/or indemnities,
as well as any other amount that may be due by [the club] or by any company of the Group,
including [the club], expressly waiving any and all claims arising from the Employment Contract
and its termination.”
15. Clause 4 of the termination agreement reads as follows:
“1. [The player] declares for all due effects that he/she has not benefited in the last 5 (five) years
from the regime of total or partial exclusion from taxation, under the terms provided for in
article 2. n. 4 of the Personal Income Tax Code.
2. [The player] may terminate this Agreement by written communication addressed to [the
club], up to the 7th day following the date of the respective conclusion, and return the sums
received, unless the signatures of the Parties are subject to notarised acknowledgement in
person.”
16. The termination agreement does not bear any jurisdiction clause.
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17. Between 1 February 2021 and 31 December 2021, the player was on loan with the Bolivian
club, Royal Pari.
18. On 6 September 2022, the Claimant put the Respondent in default and requested payment of
EUR 208,916.60, as detailed in continuation, setting a 15 days’ time limit in order to remedy
the default:
a.
b.
EUR 26,416.66 regarding the termination agreement;
EUR 182,499.94 as balance of salaries owed between January 2021 and December 2021.
19. On 21 September 2021, the player reiterated his previous notice and gave the club 5
additional days to comply.
20. Following the termination of the contract:
a. the player and the club from Honduras, Comunicaciones FC, entered into a labour
contract valid as from 22 March 2022 until 31 May 2022, for a total fixed
remuneration of HNL 242,126.35 (approx. USD 9,666);
b. the player and the club from Colombia, Deportivo Pasto, entered into a labour
contract valid as from 26 June 2022 until 30 May 2023, for a total monthly
remuneration of COP 5,000,000 (approx. USD 1,060). Such contract was later
terminated by mutual agreement on 18 August 2022.
II. Proceedings before FIFA
21. On 4 October 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
22. In his claim, the player seeks the following:
Principal claim:
Compensation for breach of contract plus the additional 25%: EUR 5,000,000 + EUR 1,250,000
= EUR 6,250,000
Balance of outstanding salaries: EUR 180,582.26
Outstanding remuneration: EUR 26,416.66
Subsidiary claim:
Balance of outstanding salaries: EUR 180,582.26
Outstanding remuneration: EUR 26,416.66
Payments under the termination agreement: EUR 26,416.66
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Plus 5% interest p.a. on the cited amounts as from the date of default.
23. In his claim, the player argued that he agreed to terminate the contract under the condition
that he was paid a sum of money, but that the club defaulted the payment, i.e., the main
condition under which the player agreed to sign the termination agreement. As such, the
player argued that the club wanted to terminate the contract and in order to obtain the
player’s consent, it offered some money, only to fail to pay, which amounted to contractual
bad faith.
24. The player is furthermore of the opinion that the termination agreement was conditional to
the payment agreed therein, failing which it shall be considered that the club terminated the
contract without just cause. Consequently, the player sought the enforcement of clause 4 of
the contract amounting to the compensation of EUR 5,000,000 plus its additional 25%.
25. As to the balance of unpaid salaries, the player argued that under clause 12 of the contract,
the parties agreed that for cases not foreseen under the contract, the CBA would apply, and
that such CBA in its clause 9.4 establishes that “The loan contract may establish remuneration
conditions different from those agreed upon in the employment contract, provided that they do not
involve any reduction in the remuneration provided for therein". As such, the player argued that
he should receive the balance between the amounts paid by Royal Pari and the amounts
stipulated under the contract, as the former reduced his salaries in contravention to the CBA.
26. As to the outstanding amounts, the player referred to the termination agreement and
requested the amounts agreed therein, which is his opinion is also grounds for his subsidiary
plea.
27. The player did not mention the loan agreement in his claim.
b. Position of the Respondent
28. In its reply, the Respondent started by objecting to the jurisdiction of FIFA and it did so with
reference to clause 17 of the contract and art. 22 of the Regulations on the Status and Transfer
of Players (RSTP). The club argued that such clause is clear and exclusive in favour of the
Arbitral Tribunal of Sport in Portugal (hereinafter: TAD, per its Portuguese acronym),
something that the Claimant omitted in his claim. However, the club did not file any evidence
as to the composition or the regulations governing the functioning of said body.
29. As to the substance, the club reverted to the termination agreement and argued that the
payment established therein was not a condition of validity of the termination but merely a
statement of the player’s full payment and consideration. The club argued that since the
amounts agreed under the termination are gross and because it had already paid EUR
8,088.66, the player’s entitlement was limited to EUR 8,000 only. In this respect, the evidence
filed by the club in support of the alleged payments was in Portuguese only, without the
corresponding translation into English, Spanish or French.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
30. 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 4 October 2022 and submitted for decision
on 8 March 2023. 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.
31. 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 par. 1 lit. b) of
the Regulations on the Status and Transfer of Players (RSTP) (October 2022 edition), the
Chamber is in principle competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between an Honduran player
and a Portuguese club.
32. The DRC further noted that the Respondent contested the competence of FIFA’s deciding
bodies in favour of the TAD, alleging that the latter is competent to deal with any dispute
deriving from the contract, in accordance with its clause 17.
33. Taking into account all the above, the Chamber emphasised that in accordance with art. 22
par. 1 lit. b) of the RSTP, FIFA is, in principle, competent to hear an employment-related dispute
between a club and a player of an international dimension. Nevertheless, the parties may
explicitly opt in writing for such dispute to be decided by an independent arbitration tribunal
that has been established at national level within the framework of the association and/or a
collective bargaining agreement. Any such arbitration clause must be included either directly
in the contract or in a collective bargaining agreement applicable on the parties. The
independent national arbitration tribunal must guarantee fair proceedings and respect the
principle of equal representation of players and clubs. Equally, the Chamber referred to the
principles contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard
Regulations, which came into force on 1 January 2008.
34. In this context, the Chamber pointed out that it should first analyse whether the contract(s)
at the basis of the present dispute contained a clear and exclusive jurisdiction clause in favour
of the TAD.
35. In this respect, the DRC acknowledged that the termination agreement is the document
central to the dispute, insofar as the matter to be determined is whether such document is
valid or not and the consequences thereto. Furthermore, the Chamber underlined that such
document bears no jurisdiction clause at all, meaning that the parties did not specifically agree
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on the jurisdiction of another body to decide on a potential dispute. That being the case, the
DRC confirmed that since the dispute at hand is of international dimension, FIFA has
jurisdiction to decide on it.
36. For the sake of completeness, the DRC remarked that even if that was not the case, it must be
noted that there are multiple contracts that govern the relationship between the parties,
which have conflicting jurisdiction clauses (or no jurisdiction clause). In line with the
jurisprudence of the DRC, it followed that there is no clear and specific jurisdiction clause
withdrawing from FIFA the competence to decide on the claim.
37. As a consequence, the Chamber was of the opinion that the first pre-requisite for establishing
the competence of the TAD was not met, and therefore, without the need to enter the analysis
of any further requirement, it established that the Respondent’s objection to the competence
of FIFA to deal with the present matter has to be rejected and that the DRC is competent, on
the basis of art. 22 par. 1 lit. b) of the RSTP, to consider the present matter as to the substance.
38. 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 RSTP (October 2022 edition), and considering that the present claim was lodged
on 4 October 2022, the July 2022 edition of said regulations (hereinafter: the Regulations) is
applicable to the matter at hand as to the substance.
b. Burden of proof
39. 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
40. 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
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41. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that this is a claim of a player against a club where the player
requests compensation for breach of contract and outstanding remuneration.
42. On one hand, according to the player, the club failed to remit the amount agreed under the
termination agreement, which prompts the payment of compensation under the contract. On
the other hand, the Respondent argued that the payment under the transfer agreement was
not a condition of validity of the same.
43. In this context, the Chamber acknowledged that it its task was to verify whether the
termination agreement was valid or not, and what were the consequences of such conclusion.
44. On this note, the Chamber started by highlighting that nothing on file supports the reasoning
of the player of payments being a condition of validity of the termination agreement, as the
same has a clear wording in the sense advocated by the Respondent. In fact, the purpose of
the termination agreement was to put an end to the employment relationship of the parties,
while settling some financial obligations between them. No other wording is found therein to
the effect that the validity of the agreement in question was subject to any conditions.
45. As such, the Chamber decided that the termination agreement is valid and binding – even if
the club has admittedly defaulted the payments agreed therein, which speaks to the
consequences of failing to comply with its contractual obligations, and not to the validity of
the termination agreement, as indicated.
46. In continuation, we the DRC proceeded to examine the consequences of such failure
considering the Claimant’s request for outstanding remuneration as well as the balance of
salaries for the period he was on loan at Royal Pari.
47. On the former, the DRC scrutinized the allegations and evidence presented by the
Respondent, and concluded that the same failed to meet its burden of proof by submitting
untranslated proofs of payment. On this note, the DRC was eager to emphasize that in line
with art. 13 par. 1 and 3 of the Procedural Rules, any submission to FIFA shall be made in
English, Spanish, or French, and those submissions not made in one of the aforementioned
languages will be disregarded. Likewise, all the evidence upon which a party intends to rely
must be filed in the original language and, if applicable, translated into English, Spanish or
French.
48. Simply put, the Chamber decided that because the proof of payment filed by the Respondent
was originally in Portuguese and unaccompanied by the corresponding translation into the
procedural working languages per art. 13 of the Procedural Rules, it had no probatory value
and thus was disregarded. This led to the natural conclusion that the amounts sought by the
Claimant should be awarded.
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49. As to the second concept requested by the Claimant, the DRC, by majority decision, found
that the conduct of the Claimant was dubious insofar as he failed to mention the existence of
the loan agreement, according to which it was established that the Respondent would cease
to pay the player’s salary for the term of the loan. Therefore, the majority of the members of
the Chamber decided that he cannot invoke the application of clause 12 of the contract insofar
as the parties deliberately established how and by whom the player would be paid while on
loan in Bolivia. As such, there is no lacuna which would be filled out by the CBA – which,
equally, the majority of the Chamber found that would not apply in any event. This request of
the player was thus rejected.
50. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the Respondent is liable to pay to the Claimant the amounts which
were outstanding under the termination agreement, i.e., two payments of EUR 13,208.33
each.
51. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award the Claimant interest at the rate of
5% p.a. on the outstanding amounts as from their respective due dates until the date of
effective payment.
ii. Compliance with monetary decisions
52. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24 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.
53. In this regard, the DRC 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.
54. Therefore, bearing in mind the above, the DRC 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. 24 par. 2, 4, and 7 of the Regulations.
55. 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.
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56. The DRC 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. 24 par. 8 of the
Regulations.
d. Costs
57. 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.
58. 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.
59. 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 has jurisdiction to hear the claim of the Claimant, Roman Rubilio Castillo
Alvarez.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, CD Tondela, has to pay to the Claimant the following amount(s):
a. EUR 13,208.33 as outstanding remuneration plus 5% interest per annum as from 6
February 2022 until the date of effective payment;
b. EUR 13,208.33 as outstanding remuneration plus 5% interest per annum as from 6 March
2022 until the date of effective payment.
4.
Any further claims of the Claimant are rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
6.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, 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 of the ban shall be
of up to 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.
7.
The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
8.
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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