Labour Disputes
Texto da decisão
REF 20-00828 FPSD-31
Decision of the
Dispute Resolution Chamber
passed on 25 February 2021
regarding an employment-related dispute concerning the player Roman Rubilio Castillo Alvarez
COMPOSITION:
Geoff Thompson (England), Chairman
Stefano Sartori (Italy), member
Joseph Antoine Bell (Cameroon), member
CLAIMANT / COUNTER-RESPONDENT:
Roman Rubilio Castillo Alvarez, Honduras
RESPONDENT / COUNTER-CLAIMANT:
Nantong Zhiyun FC, China PR
INTERVENING PARTY:
CD Saprissa, Costa Rica
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I.
Facts
1.
On 29 December 2018, the Honduran player, Roman Rubilio Castillo Alvarez, and the
Chinese club, Nantong Zhiyun FC, entered into an agreement called “employment precontract”, valid as from January 2019 until December 2021, i.e. for 3 years.
2.
Under the epigraph “General Principle”, the contract reads as follows:
“General Principle This Employment Pre-contract is by and between Nantong Zhiyun
Football Club Co . Ltd (as Party A" below 1 and Mr Roman Rubilio Castillo Alvarez. (as
"Party B" below), and it specifies that the structure of employment terms negotiated by
Party A and Party B has come into an initial agreement expressing a hi-laterally agreed
willingness to be the employer and the employee, respectively
However this Employment Pre-contract also suggests that a series of employment
procedures have not settled yet, leading to a unfinished transfer without any signed
formal employment contract between Party A and Party B. Thus, this Employment Precontract is by no means representing an official signed employment contract, whose
signing will be subject to the medical check arranged for Party B and further negotiations
over a certain subjects between the Parties
As well. this Employment Pre-contract only lists obligations and rights that belong to the
structure of the employment negotiated and agreed over the weeks and more detailed
terms will be negotiated in a discussion for the formal employment contract in China.”
3.
Under the epigraph “base salary”, the contract provides the player’s fixed annual
remuneration, which amounts to USD 400,000 net, being payable –for the first year– as
follows:
USD 50,000 net within 5 days following the signature of the pre-contract;
USD 350,000 net within 12 months on average monthly salary at US 29,167 net.
4.
According to the player, and after having concluded the pre-contract, on 9 January 2019,
he flew to China, where he player was received by the club. On the following day, on 10
January 2020, the player was presented and underwent medical examinations, as well as
an “intense” football training.
5.
Allegedly, on 11 January 2019, the president of the club, Mr. Bin Fan, communicated to
the player that, although the result of the medical examinations were not as expected,
he should go to the city of Kunming, where the rest of the team was training and do a
“sporting test”, upon which it would be decided whether the club wished to hire the
player.
6.
The player refused to do such a “sporting test” and argued that the contract was already
signed and that the player should not undergo any further test or examination.
7.
Thereto, Mr. Bin Fan allegedly replied that, in view of the player’s position, he would
receive the flight tickets to return to his country.
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8.
By means of his letter dated 21 January 2019, the Claimant unilaterally terminated the
contract in writing, arguing that the Respondent had breached the contract by not
complying with the provision included in art. 18 para. 4 of the RSTP, in accordance with
which “the validity of a contract may not be made subject to a successful medical
examination and/or the grant of a work permit”.
9.
By means of its correspondence dated 24 January 2019, the club replied thereto, stating
that the player failed the medical examinations and that he is requested to go to the city
of Kunming, China, to undergo a professional medical examination, as well as a sporting
test.
10. Thereafter, the club sent a further notice, stating that the contract was unilaterally
terminated by the club in view of the player’s absence at the medical examinations and
sporting test.
11. On 1 February 2019, the player sent his last correspondence to the club, offering a
settlement to the dispute. However, and according to himself, to no avail.
12. The player informed FIFA that he subsequently concluded the following contracts:
- On 28 January 2019, he signed a contract with CD Saprissa from Costa Rica, for a
monthly salary of USD 15,650.
- On 18 July 2019, he signed a contract with CD Tondela from Portugal, for a
monthly salary of EUR 20,000 (approx. USD 22,500 at the date of the contract).
- On 30 January 2020, he signed a contract with AFC Motagua from Honduras and
valid, for a monthly salary of USD 7,500.
(from 28 January 2019 until 31 December 2021, the player would have earned the
total amount of USD 314,825:
CD Saprissa: 15,650*5,5 (February 2019 – mid July 2019) = 86,075
CD Tondela: 22,500*6,5 (mid July 2019 – January 2020) = 146,250
AFC Motagua 7,500*11 (February 2019 – December 2021) = 82,500
13. On 8 June 2020, the player lodged a claim before FIFA against Nantong Zhiyun FC.
14. In his claim, the Claimant firstly explained that, despite the agreement concluded
between the parties was named “employment pre-contract” said document actually
constitutes a contract, since it contains the essential elements of a contract.
15. Furthermore, the Claimant held that, despite him complying with his contractual
obligations, once the player had joined the club and signed the contract, the latter tried
to make the employment relationship between the parties subject to a training session
of the player with the team in order to allegedly assess whether the player’s skills were
good enough to hire him.
16. In this context, since the Respondent tried to make the validity of the contract subject to
the positive results of medical examinations and sporting tests as a new condition to
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complete the signing of the player, and since the club handed the player the flight tickets
to go back to his country upon his refusal to undergo such further tests, the club de facto
breached the contract.
17. In his request for relief, the Claimant requested to be awarded compensation for breach
of contract in the amount of USD 1,200,000 (400,000*3) corresponding to the
whole/residual value of the contract (cf. point I. 4.above).
18. In its reply, the Respondent rejected the claim of the player and simultaneously lodged a
counterclaim.
19. In the opinion of the Respondent, the player terminated the contract without just cause.
20. According to the Respondent, the sequence of events is as follows: i) the Player failed the
first medical exams ii) the Club insisted to the Player to repeat such exams iii) the Player
abandoned by himself and apparently own its costs the Club’s facilities iv) the Player
requested the Club to sign the Contract.
21. In this respect, the Respondent expressed that it was completely surprised by the Player’s
claim because it never refused to sign the contract nor requested him to leave the
Nantong FC’s site. On the contrary, the club argued that, despite the player having failed
to perform the first medical exams, the Club insisted with the Player so that he could retry after having some rest
22. In view of the above, the Respondent requested compensation in the amount of “no
less than USD 1,200,000”.
23. The player’s new club, CD Saprissa (the Intervening Party) was invited to present its
comments, in accordance with art. 17 par. 2 of the Regulations on the Status and
Transfer of Players. However, it failed to provide its position to the claim.
II. Decision of the Dispute Resolution Chamber
1. 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.
Taking into account the wording of art. 21 of the January 2021 edition of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber (hereinafter: the Procedural Rules), the aforementioned edition of the
Procedural Rules is applicable to the matter at hand.
2. Subsequently, the Dispute Resolution Chamber referred to art. 3 par. 1 of the Procedural
Rules and emphasised that, in accordance with art. 24 par. 1 in combination with art.
22 lit. b) of the Regulations on the Status and Transfer of Players, the Dispute Resolution
Chamber is competent to deal with matters which concern employment-related disputes
with an international dimension between players and clubs, such as the present one,
which involves a Honduran player, a Chinese club and a Costa Rican club.
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3. In continuation, the Dispute Resolution Chamber analysed which edition of the
Regulations of the Status and Transfer of Players should be applicable to the present
matter. In this respect, the Dispute Resolution Chamber confirmed that in accordance
with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players, and
considering the date when the claim was lodged, the June 2020 edition of the
aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at
hand.
4. With the above having been established, the Dispute Resolution Chamber entered into
the substance of the matter. In doing so, it started to acknowledge the facts of the case
as well as the documents contained in the file. However, the Dispute Resolution Chamber
emphasized that in the following considerations it will refer only to facts, arguments and
documentary evidence which it considered pertinent for the assessment of the matter at
hand.
5. In this respect, the Chamber noted that, on 29 December 2018, the parties entered into
an agreement called “employment pre-contract”, valid as from January 2019 until
December 2021, i.e. for 3 years.
6. Thereafter, the Chamber observed that the player lodged a claim against Nantong Zhiyun
FC, requesting compensation for breach of contract, noting that he unilaterally
terminated the contractual relationship with the player on 21 January 2019.
7. Conversely, the Chamber noted that Nantong FC considered for its part that the player
terminated the contract without just cause, and that it lodged a counterclaim against him
in this regard.
8. In view of the above, the Chamber understood that the first legal issue that it shall clarify
is the legal nature of the so-called “employment pre-contract”
9. In this respect, the Chamber observed that this agreement of 29 December 2018 is
properly signed between the parties and contains all the essentialia negotii, such as (but
not limited to) the parties to the contract and their role, the duration of the employment
relationship and the remuneration agreed upon between the parties.
10. However, the Chamber also noted that the contract contains a disclaimer clause (cf. point
I. 3 above), which seemingly intends to modify the legal effect of the contract by stating
that is “is by no means representing an official signed employment contract, whose
signing will be subject to the medical check arranged for Party B and further negotiations
over a certain subjects between the Parties”.
11. Nevertheless, the Chamber noted that the reference to the formal element of the
contract bears no legal effect. Indeed, the Chamber recalled that, as a general principle,
where the parties have agreed on all the essential terms, it is presumed that the contract
will be binding notwithstanding any reservation on secondary terms.
12. Moreover, and in reference to the aforementioned disclaimer, pursuant to article 18 par.
4 of the FIFA Regulations on the Status and Transfer of Players (RSTP), the Chamber
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recalled that validity of a contract may not be made subject to a successful medical
examination.
13. Consequently, the Chamber agreed that the document concluded on 29 December 2018
is a valid and binding employment contract and thus, affected by the principle of pacta
sunt servanda.
14. Thereafter, the Chamber went on to examine the circumstances involving the termination
of the aforementioned contract and, in particular, whether the player had a just cause to
terminate the contract on 21 January 2019.
15. In this respect, the Chamber was eager to emphasise that only a breach or misconduct
which is of a certain severity justifies the termination of a contract. In other words, only
when there are objective criteria, which do not reasonably permit to expect a
continuation of the employment relationship between the parties, a contract may be
terminated prematurely. Hence, if there are more lenient measures which can be taken
in order for an employer to ensure the employee’s fulfilment of his contractual duties,
such measures must be taken before terminating an employment contract. A premature
termination of an employment contract can only ever be an ultima ratio measure.
16. In particular, the Chamber noted that the player terminated the contract unilaterally on
21 January 2019 because he seemingly refused to perform a medical test (cf. point I.4 to
I.8 for the specific sequence of events).
17. In this respect, and referring once again to art. 18 par. 4 of the Regulations, the Chamber
recalled that, although the validity of a contract cannot be subject to a medical test, this
does not mean that the player could simply refuse to take part in said test. More
specifically, the Chamber was of the opinion that the participation in such tests can also
be viewed as a part of his obligations as a football player, regardless of the possible
decisions that a club may take afterwards.
18. As a result, the Chamber considered that that the player’s decision to simply refuse
participating in said test while the club did not took yet an official decision at that point
appears to be excessive.
19. In addition, the Chamber specifically underlined in this respect that it was the player
himself, and not the club, who terminated the contract.
20. Within this context, the Chamber also observed that, in his termination letter of 21
January 2019, the player unilaterally offered to settle the matter for USD 200,000,
without providing any prior formal default notice, opportunity to negotiate, or possible
remedy. In the unanimous view of the Chamber, this letter appears to be premature and
not compliant with the principle of ultima ratio, since the player could have tried to solve
the matter in a less inflexible way. The Chamber understood that the player’s behavior
and termination letter exposes a certain degree of bad faith, as it does not provide any
alternative to solve the matter.
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21. In view of the above, the Chamber understood that the player terminated the contract
without just cause and that, as a result, in accordance with art. 17 par. 1 of the
Regulations, the player is liable to pay compensation to the Respondent / CounterClaimant.
22. For the sake of completeness, the Chamber observed that the player signed a contract
with CD Saprissa only 7 days after the termination (cf. point I.12 above). In the opinion
of the Chamber, this circumstance exposes that the player was not interested in
continuing his career with Nantong Zhiyun FC, as we was already looking for other
opportunities within a short period of time.
23. Furthermore, in accordance with the unambiguous contents of article 17 par. 2 of the
Regulations, the Chamber established that the player’s new club, i.e. CD Saprissa, shall be
jointly and severally liable for the payment of compensation. In this respect, the Chamber
was eager to point out that the joint liability of the player’s new club is independent from
the question as to whether the new club has induced the contractual breach. This
conclusion is in line with the well-established jurisprudence of the Chamber and has been
repeatedly confirmed by the CAS.
24. Notwithstanding the aforementioned, the Chamber recalled that according to art. 17 par.
4 sent. 2 of the Regulations, it shall be presumed, unless established to the contrary, that
any club signing a professional who has terminated his contract without just cause has
induced that professional to commit a breach.
25. In this context, the Chamber focused on the primacy of the principle of the maintenance
of contractual stability, which represents a central element of the Regulations.
26. Above all, the Chamber was eager to point out that the measures provided for by the
above Regulations concerning in particular compensation for breach of contract without
just cause serve as a deterrent aimed at discouraging the early termination of
employment contracts by either contractual party and that a lack of a firm response by
the competent deciding authorities would represent an inappropriate example towards
all the football actors.
27. In this respect, awarding compensation in favor of the damaged party has proven to be
an efficient means and has always found a widespread acceptance since it guarantees
that the fundamental principle of the respect of the contracts is duly accounted for.
28. Above all, it was emphasized that the criteria contained in art. 17 of the Regulations are
applied with the principle of reciprocity for clubs and players, signifying that clubs and
professional players who are seen to have committed a breach of contract without just
cause will in all cases be subject to pay compensation and, under specific circumstances,
also be subject to the imposition of sporting sanctions.
29. Having stated the above, the Chamber focused its attention on the calculation of the
amount of compensation for breach of contract in the case at stake. In doing so, the
members of the Chamber firstly reiterated that, in accordance with art. 17 par. 1 of the
Regulations, the amount of compensation shall be calculated, in particular and unless
otherwise provided for in the contract at the basis of the dispute, with due consideration
for the law of the country concerned, the specificity of sport and further objective criteria,
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including in particular the remuneration and other benefits due to the Respondent I
under the existing contract and/or the new contract(s), the time remaining on the existing
contract up to a maximum of five years as well as the fees and expenses paid or incurred
by the former club (amortised over the term of the contract) and whether the contractual
breach falls within a protected period. The DRC recalled that the list of objective criteria
is not exhaustive and that the broad scope of criteria indicated tends to ensure that a just
and fair amount of compensation is awarded to the prejudiced party.
30. In application of the relevant provision, the Chamber held that it first of all had to clarify
whether the pertinent employment contract between the player and Nantong Zhiyun FC
contained any clause, by means of which the parties had beforehand agreed upon a
compensation payable by the contractual parties in the event of breach of contract. In
this regard, the Chamber established that no such compensation clause was included in
the employment contract at the basis of the matter at stake.
31. As a consequence, the members of the Chamber determined that the prejudice suffered
by Nantong Zhiyun FC in the present matter had to be assessed in application of the other
parameters set out in art. 17 par. 1 of the Regulations. In this regard, the DRC emphasised
beforehand that each request for compensation for contractual breach has to be assessed
by the Chamber on a case-by-case basis taking into account all specific circumstances of
the respective matter.
32. According to the documentation provided by the parties, it appears that in accordance
with the player’s employment contract with Nantong Zhiyun FC, the player would receive
the total amount of USD 350,000 for one season (cf. point I. 3 above).
33. On the other hand, the value of the new employment contract, concluded between the
player and the intervening party, which was apparently in force only until mid-July 2019,
had a value of USD 86,076 (15,650*5,5, from February 2019 to mid July 2019)
34. Accordingly, under the aforementioned employment contracts with said clubs,
the player was to receive the approximate average income of USD 218,000 per year (i.e.
USD 350,000 + 86,076 / 2). The Chamber understood that said amount shall serve as the
payable compensation in view of its longstanding jurisprudence for comparable cases.
35. Consequently, on account of the above-mentioned considerations, the Chamber decided
that the player must pay the amount of USD 218,000 to Nantong Zhiyun FC as
compensation for breach of contract. Furthermore, the Intervening Party, in line with art.
17 par. 2 of the Regulations, is jointly and severally liable for the payment of the relevant
compensation.
36. Nevertheless, the Chamber also wished to consider whether, at the date of termination,
Nantong FC had any outstanding liability towards the player.
37. In this respect, the Chamber noted that, according to the contract, the player was entitled
to an amount of USD 50,000 net within 5 days following its signature.
38. However, the Chamber observed that no evidence was provided as to the payment of
said amount.
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39. Consequently, taking into account the player’s request, and in strict application of the
principle of pacta sunt servanda, the Dispute Resolution Chamber established that
Nantong FC has to pay to the player, the total outstanding amount of USD 50,000, as
agreed in the contract.
40. Furthermore, taking into account the previous considerations, the Dispute Resolution
Chamber referred to par. 1 and 2 of art. 24bis 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.
41. In this regard, the Dispute Resolution Chamber pointed out that, against players, a
restriction will be imposed on the player on playing in official matches up until the due
amounts are paid. The overall maximum duration of the restriction, including possible
sporting sanctions, shall be of six months on playing in official matches.
42. Therefore, bearing in mind the above, the Dispute Resolution Chamber decided that, in
the event that the player does not pay the amount due as compensation to Nantong
Zhiyun FC, a restriction will be imposed against him on playing in official matches up until
the due amounts are paid. The overall maximum duration of the restriction, including
possible sporting sanctions, shall be of six months on playing in official matches.
43. In addition, the Dispute Resolution Chamber further underlined 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 and for the maximum duration of three entire and consecutive
registration periods.
44. In addition, taking into account the present decision, the DRC also established that, in
the event that Nantong Zhiyun FC does not pay the outstanding amount due to the player
within 45 days as from the moment in which the player, following the notification of the
present decision, communicates the relevant bank details to said club, a ban from
registering any new players, either nationally or internationally, for the maximum
duration of three entire and consecutive registration periods shall become effective on
Nantong Zhiyun FCin accordance with art. 24bis par. 2 and 4 of the Regulations.
45. Finally, the Dispute Resolution 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. 3 of the Regulations.
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III. Decision of the Dispute Resolution Chamber
1.
The claim of the player, Roman Rubilio Castillo Alvarez, is partially accepted.
2.
Nantong Zhiyun FC, has to pay to the player, the amount of USD 50,000 net as
outstanding remuneration.
3.
In the event that the amount due, plus interest as established above is not paid by
Nantong Zhiyun FC to the player, Roman Rubilio Castillo Alvarez, within 45 days, as
from the notification by the player of the relevant bank details to the aforementioned
club, the following consequences shall arise:
1. Nantong Zhiyun FC shall be banned from registering any new players, either
nationally or internationally, up until the due amount is paid and for the maximum
duration of three entire and consecutive registration periods. The aforementioned
ban mentioned will be lifted immediately and prior to its complete serving, once
the due amount is paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amount as per in this decision is still not paid by the
end of the ban of three entire and consecutive registration periods, the present
matter shall be submitted, upon request, to the FIFA Disciplinary Committee.
4.
The counterclaim of Nantong Zhiyun FC is partially accepted.
5.
The player, Roman Rubilio Castillo Alvarez, has to pay to Nantong Zhiyun FC, the amount
of USD 218,000 as compensation for breach of contract without just cause.
6.
The intervening party, CD Saprissa is jointly and severally liable for the payment of the
aforementioned compensation.
7.
In the event that the amount due as compensation, as established above is not paid by
the player, Roman Rubilio Castillo Alvarez, to Nantong Zhiyun FC, within 45 days, as
from the notification by the club of the relevant bank details to the aforementioned
player, the following consequences shall arise:
1. A restriction will be imposed on the player on playing in official matches up until
the due amounts are paid. The overall maximum duration of the restriction,
including possible sporting sanctions, shall be of six months on playing in official
matches.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. CD Saprissa shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid and for the maximum duration of
three entire and consecutive registration periods. The aforementioned ban will be
lifted immediately and prior to its complete serving, once the due amount is paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
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3. In the event that the aforementioned amount payable as per in this decision is still
not paid by the end of the aforementioned ban and restrictions, the present matter
shall be submitted, upon request, to the FIFA Disciplinary Committee.
8.
Any further claims of the parties are rejected.
9.
The Claimant is directed to immediately and directly inform the Respondent of the
relevant bank account to which the Respondent must pay the due amount.
10. The parties shall provide evidence of payment of the due amounts in accordance with
this decision to [email protected], duly translated, if applicable, into one of the official
FIFA languages (English, French, German, Spanish).
11. This decision is rendered without costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 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 20 of the Procedural Rules).
CONTACT INFORMATION:
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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