Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 1 February 2019,
in the following composition:
Geoff Thom ps on (England), Chairman
Roy Verm eer (the Netherlands ), member
Johan v an Gaalen (S outh Africa), member
S tefano La Porta (Italy ), member
Pav el Piv ov arov (Rus s ia), member
on the claim presented by the player,
Play er A, Country B
as Claimant
against the club,
Club C, Country D
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the cas e
1.
On 31 March 2016, the player of Country B, Player A (hereinafter: the
Claimant), and the club of Country D, Club C (hereinafter: the
Respondent), signed a “temporary contract of employment” (hereinafter:
the employment contract) valid as from the date of signature until 31 July
2016.
2.
According to art. 4.1. of the employment contract, the Claimant was
entitled to a monthly salary of 20,000 in the currency of Country D to be
paid on the 25th day of each month.
3.
According to art. 4.10 of the employment contract, “the [Respondent]
provides free medical care and other necessary and appropriate treatment
for injuries sustained by [the Claimant] during participation in activities
based on the contract”. According to the same provision, “The [Claimant]
has an obligation to be treated by a doctor / physiotherapist / chiropractor
designed by [the Respondent], providing [the Respondent] pays all
expenses for the treatment […]”.
4.
Moreover, the above-mentioned provision established that “regardless of
the provision of the preceding paragraph, [the Claimant] may have his
injuries examined by a doctor / physiotherapist / chiropractor, providing
the [Claimant] covers the consultation himself” and “[the Respondent]
shall be informed of such consultation”.
5.
By e-mails dated 15 and 30 May 2018, the Claimant put the Respondent in
default of payment of his medical costs in the total amount of EUR
9,723.06 and enquired about “the [Respondent]’s position on the
[Claimant]’s claim for damages as a result of the [Respondent]’s
negligence”.
6.
On 12 June 2018, the Claimant lodged a claim against the Respondent in
front of FIFA, requesting to be awarded the following:
a. EUR 9,723 for “medical expenses incurred”;
b. “Compensation and/or aggravated damages up to € 300,000 […] for the
[Respondent’s] gross negligence which resulted to the [Claimant’s]
permanent incapacity to play professional football”;
c. “Additional compensation up to six months’ salaries […] based on the
positive interest principle of Swiss Law and/or aggravated damages”;
d. “Additional compensation based on the objective criteria of the case
and the specificity of sport […]”.
Player A, Country B / Club C, Country D
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7.
With his claim, the Claimant requested “interest on all amounts” as of 12
June 2016.
8.
More in particular, the Claimant explained that, on 12 June 2016, during
an official game played against the Club E, he sustained an injury the
consequences of which, due to the alleged negligence of the Respondent,
resulted in a permanent incapacity to play football and for which he
deemed he had to be compensated adequately.
9.
In this respect, the Claimant argued that, following the aforementioned
occurrence, he had been examined only by the Respondent’s
physiotherapist, who allegedly deemed that the injury was “nothing
serious”. The Claimant further recalled that, on 22 June 2016, he suffered a
relapse during a training and that, since then, he felt “terrible pain”.
10.
In continuation, the Claimant recalled that, after having put pressure on
the Respondent, the latter “accepted to arrange for an ultrasound and an
x-ray”. In this respect, the Claimant maintained that the Respondent’s
medical team had wrongly evaluated the results of the tests, deeming that
they did not reveal any injury. The Claimant further explained that he had
finally managed to convince the Respondent to let him undergo an MRI
scan, which allegedly revealed a serious injury to his left ankle.
11.
Moreover, according to the Claimant, the Respondent “recognised its fault
not to send [him] for the proper medical examinations immediately after
the injury and apologised to him”. The Claimant further recalled that, in
this context, the Respondent’s doctor had advised him to wear a cast.
12.
The Claimant explained that, at a later stage and due to the continuous
pain he was suffering, he underwent another medical examination in
Country F. The Claimant recalled that, following the MRI scan he
undertook in Country F, he decided to seek medical advice in Country G,
where his doctor suggested to undergo surgery. Moreover, according to
the Claimant, this last specialist pointed out that he should have been
properly treated soon after the injury. In this respect, the player submitted
a signed medical report dated 31 July 2018 from Prof J, concluding that the
Claimant “remains symptomatic which prevents him from returning back
to play”.
13.
However, the Claimant maintained that he indeed underwent surgery but
that it did not solve his problem and, consequently, he had to stop playing
professional football. According to the Claimant, the Respondent’s alleged
negligence was “the only reason” for his permanent incapacity.
Player A, Country B / Club C, Country D
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14.
In light of the above, the Claimant argued that he had to be: (i)
reimbursed for the medical expenses incurred in the total amount of EUR
9,723, i.e. EUR 214 for the MRI in Country F, EUR 9,000 for the surgery in
Country G and further EUR 509 as well as (ii) compensated for the damages
suffered.
15.
In its reply, the Respondent asked that the Claimant’s claim be rejected
and that it be reimbursed legal expenses in the amount of CHF 2,000.
16.
The Respondent firstly pointed out that, prior to signing the short term
contract with the Claimant, the latter had been examined by the
Respondent’s medical team as well as the Respondent’s physiotherapist
and by doctors from an “external clinic”. According to the Respondent,
said examinations revealed that the Claimant had previously sustained a
number of sprains to his left ankle, i.e. the one injured on 12 June 2016. In
this respect, the Respondent submitted an unsigned and undated
document from Mr H, allegedly the Respondent’s physical therapist, who
declared, presumably prior to the signing of the contract, that the
Claimant “has previously experienced ankle sprains, but this should be no
problem at present time”. The Respondent also submitted a document
dated 31 March 2016, whereby two doctors of the “medical facility L”
declared that the Claimant “presents with no findings indicating that he
cannot participate in play”, although revealing a “severe ankle sprain left
side ten years ago – minor sprains since – uses ankle support both ankles”.
17.
The Respondent further recalled that, soon after the injury of 12 June
2016, the Claimant had been examined by the head of the Respondent’s
medical team, Mr M, and the Respondent’s physiotherapist and no serious
injury was reported. The Respondent also evoked that the Claimant
continued to train and, upon demand, played the last 14 minutes in the
match of 19 June 2016 and a few minutes in the ensuing match of 26 June
2016 and that, after he complained about his pain, “X-ray and MRI was
taken the next day”.
18.
Moreover, the Respondent denied that Mr M ever advised the Claimant to
wear a cast and, according to the Respondent, the Claimant never wore a
cast as long as he was with the Respondent.
19.
In continuation, the Respondent argued that neither the x-ray nor the MRI
revealed any “signs of a serious injury”. The Respondent added that, based
on the evidence, its medical team decided to continue applying a
conservative treatment with physiotherapy. Moreover, the Respondent
recalled that Mr M concluded, after having re-examined the x-ray of 26
June 2016, that the “findings are definitely posttraumatic and caused by
old trauma and is not at all relevant to his anklesprain june 12 th 2016”. In
this regard, the Respondent submitted a report from Mr M, dated 6
Player A, Country B / Club C, Country D
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September 2018, in which he adds that “in [his] opinion ligament
reconstruction in this quite seriously damaged ankle is hardly indicated”
and that he “strongly disagree[d] with [his] colleague of Country G stating
that [the Claimant’s] ankle injury should have been operated shortly after
june 12th 2016”.
20.
The Respondent further explained that, after 26 June 2016, the Claimant
decided to go to Country F and consequently the Respondent was not in a
position to further treat his injury for the last month of the contractual
duration of their employment relationship.
21.
Moreover, the Respondent claimed that it could not be held responsible
for the medical treatment that the Claimant underwent after the expiry of
the contract, i.e. 31 July 2016.
22.
Additionally, the Respondent denied any responsibility concerning the
permanent incapacity of the Claimant and the related compensation
claimed, in light of the following considerations: a. the Respondent should
not be held responsible for complications related to injuries sustained by
the Claimant before joining the Respondent, as indicated by Mr M in his
medical opinion; b. there are no indications that the Claimant could have
been able to continue his career had the injury been treated differently
while he was at the Respondent; c. the Respondent had provided the
Claimant with appropriate medical treatment while in Country D, in
accordance with its contractual obligations.
23.
In his replica, the Claimant reiterated his position as to the facts of the case
but partially amended his claim.
24.
First of all, he confirmed having been examined prior to the signing of the
contract with the Respondent. However, according to him, he was “in a
perfect condition”, so much that he had played 17 matches without facing
“any medical, or other, problem until” 12 June 2016.
25.
Moreover, the Claimant denied the Respondent’s allegation that he had
undergone an MRI on 27 June 2016. According to the Claimant, after he
had suffered a relapse on 22 June 2016, the Respondent sent him only for
an ultrasound and x-rays but not an MRI until July 2016.
26.
In continuation, the Claimant explained that, after the Respondent’s reply
in the present proceedings, he obtained at his own expenses a copy of the
MRI report of 8 July 2016, according to which he had suffered a “complete
rupture of his ligament” and that the Respondent had intentionally
concealed it. In this respect, the Claimant submitted a copy of the
diagnosis from the MRI of a “complete disruption of the anterior
talofibular ligament”.
Player A, Country B / Club C, Country D
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27.
Moreover, the Claimant held that the Respondent’s poor treatment of his
injury was confirmed by the opinion of the specialist he contacted in
Country F after having obtained said MRI. In this regard, prior to the expiry
of the deadline to provide his submission, the Claimant produced an
unsigned and undated copy of Mr N’ opinion according to which the “lack
of initial treatment contributed to the development of chronic disability”
since “to resolve the problem was necessary recommended surgery repair”.
The Claimant submitted the dated and signed version of said opinion after
the expiry of the deadline.
28.
The Claimant further claimed that the only treatment he was given while
at the Respondent was to take painkillers and he was never prescribed any
physiotherapy.
29.
Moreover, the Claimant rebutted the Respondent’s argument concerning
the impossibility to keep treating him until the end of the contractual
relationship, alleging that he left Country D only on 22 July 2016. The
Claimant further recalled that the Respondent had agreed to cover his
flight ticket back to Country F but never complied.
30.
Lastly, the Claimant partially amended the financial requests contained in
his claim. With his replica, in fact, the Claimant requested “a compensation
of at least € 250,000” and, with regards to the reimbursement of costs, on
top of EUR 9,723 for medical expenses, he demanded to be awarded EUR
199.24 for the costs he allegedly incurred to obtain the MRI from Country
D and translate it, plus EUR 245.86 for the flight ticket from Country D to
Country F.
31.
In its duplica, the Respondent preliminarily contested the admissibility of
the Claimant’s late submission. As to the merits, the Respondent reiterated
its position. With regards to the request of reimbursement of the flight
ticket, the Respondent argued that it “cannot recollect having agreed to
pay for these tickets” and the Claimant “has not proved that such an
agreement has been made”.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred as
DRC or Chamber) analysed whether it was competent to deal with the case
at hand. In this respect, the Chamber took note that the present matter
was submitted to FIFA on 12 June 2018. Consequently, the DRC concluded
that the 2018 edition of the Rules Governing the Procedures of the Players’
Player A, Country B / Club C, Country D
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Status Committee and the Dispute Resolution Chamber (hereinafter: the
Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the
Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed 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 (edition 2018), the Dispute Resolution Chamber is
competent to deal with the matter at stake, which concerns a dispute with
an international dimension between a player of Country B and a club of
Country D in relation to an employment relationship between the parties.
3.
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 Regulations on the
Status and Transfer of Players (edition June 2018), and considering that the
present claim was lodged on 12 June 2018, the June 2018 edition of said
regulations (hereinafter: the Regulations) is applicable to the matter at
hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having
been established, the Chamber entered into the substance of the matter.
In this respect, the Chamber started by acknowledging all the abovementioned facts as well as the arguments and the documentation
submitted by the parties. 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.
5.
Having said that, the members of the Chamber acknowledged that, on 31
March 2016, the parties had concluded an employment contract valid as
from the date of signature until 31 July 2016, in accordance with which the
Respondent had undertaken to pay to the Claimant a monthly salary of
20,000 in the currency of Country D.
6.
The DRC further pointed out that the employment contract set forth the
obligation for the Respondent to provide medical care in favour of the
Claimant in case of injuries sustained due to “participation in activities
based on the contract”. Moreover, the members of the DRC observed that,
according to the employment contract, the Claimant had the “obligation
to be treated” by a physician “designed by the [Respondent]”. In this case
– the DRC noted – the Respondent would cover the related expenses. The
DRC further acknowledged that the employment contract granted the
Player A, Country B / Club C, Country D
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Claimant the possibility to choose a medical practitioner of his own,
provided that the Respondent be informed of such occurrence and that
the Claimant be responsible for the related costs.
7.
In continuation, the DRC observed that it remained uncontested that the
Claimant sustained an injury to his ankle during an official match played
on 12 June 2016. The members of the Chamber further took into account
that the Claimant appears to have remained unemployed since the expiry
of the contract with the club which had loaned him to the Respondent.
Consequently, the DRC found it possible to assume that the Claimant’s
career indeed came to an end shortly after the abovementioned traumatic
event.
8.
That said, the members of the Chamber took note that the Claimant held
that, due to the Respondent’s negligence, the consequences of said injury
ultimately resulted in his permanent incapacity to play football and that he
should be adequately compensated. More in particular, the members of
the DRC noted, from the entirety of the Claimant’s submissions, that the
latter substantially deemed that the Respondent did not intervene on his
injury in a timely manner and that its medical staff was eventually wrong
when it assessed it, deciding to adopt a conservative treatment rather than
surgery.
9.
On the other hand, the DRC noted that the Respondent, for its part,
essentially claimed that it had done what it was contractually required to
do for the player, i.e. provide medical assistance in relation to an injury
sustained during an official game, and that it could not be held
responsible for the Claimant’s permanent incapacity to play football, also
due to the fact that it could not be proven that a different treatment
would have avoided such occurrence.
10.
In light of the above, the members of the Chamber observed that the
dispute revolved around the question as to whether the Respondent had
fulfilled its contractual obligations to put in place “medical care and other
necessary and appropriate treatment” in favour of the Claimant in relation
to the injury sustained.
11.
Having said that, the members of the Chamber deemed it important to
point out from the outset that it remained essentially uncontested that,
after the recalled traumatic occurrence, the Claimant had overall received
from the Respondent: i. a medical examination immediately post injury; ii.
an ultrasound and an x-ray exam within a couple of weeks at most; iii. an
MRI exam shortly afterwards.
Player A, Country B / Club C, Country D
8/12
12. That being established, the DRC recalled that the parties agreed that the
Respondent’s medical team reckoned, after the first examination carried
out in the immediacy of the sprain, that the Claimant had not reported
any serious damage. However, according to the Claimant, said evaluation
was wrong.
13.
In this context, the Chamber recalled that the Claimant maintained that
the specialist who visited him in Country G, Prof J, deemed that he should
have been properly treated soon after the injury and that, in support of his
assertion, the Claimant submitted a medical report dated 31 July 2018
from the aforementioned specialist. However, from the analysis of said
document, the members of the Chamber were not persuaded that indeed
Prof J declared himself that the Claimant’s injury had been poorly treated.
The Chamber observed, in fact, that the invoked statement is to be found
at the beginning of the report, where Prof J is rather describing the
Claimant’s own recollection of the events. The only conclusion that can be
undoubtedly drawn from said opinion, the members of the DRC deemed, is
that – at the time it was given – the Claimant was prevented from
returning to his football activity because of his current physical condition
(in the words of Prof J, he “remains symptomatic which prevents him from
returning back to play”).
14.
In continuation, the members of the Chamber brought into account that
the Claimant submitted the assessment of a further specialist, Mr N,
according to whom the “lack of initial treatment contributed to the
development of chronic disability”. In this respect, the DRC had to
preliminarily remark the fact that the signed and dated version of said
opinion was submitted by the Claimant only after the expiry of the
deadline to provide his submission. Consequently, in accordance with art. 9
par. 3 of the Procedural Rules, pursuant to which submissions received
outside of the time limit shall not be taken into account, the relevant
version of said opinion should not be considered for the purposes of this
decision.
15.
However, even taking Mr N’ conclusion into account, the members of the
DRC were eager to underline that, in the opinion of the Respondent’s
doctor, Mr M, “ligament reconstruction in this quite seriously damaged
ankle is hardly indicated”. In other words, the members of the Chamber
pointed out the fact that two practitioners, whose judgement needs to be
given equal medical authority, entirely disagreed on the most appropriate
way to treat the same injury.
Player A, Country B / Club C, Country D
9/12
16. Moreover, the DRC was mindful that the Claimant’s physical conditions
appeared to be partially impaired already at the moment he signed his
contract with the Respondent, when he undertook the ritual medical
exams. In this respect, the members of the Chamber referred to the
document provided by the Respondent dated 31 March 2016, i.e. the day
on which the employment contract was signed (cf. supra point I./16). The
DRC recalled that, in that context, the doctors who visited the Claimant
considered that the latter was revealing a severe sprain to his left ankle
sustained 10 years earlier and that he was using “ankle support”, although
– according to them – there was no reason to think he could not play
football at that time.
17.
From all the above, it followed, in the opinion of the members of the DRC,
that a direct causal link between the assessment of the injury conducted by
the Respondent’s medical team and the permanent incapacity that the
Claimant eventually suffered could not be found.
18.
The above being established, the DRC thought it worthwhile to briefly
address the Claimant’s allegation that the Respondent “recognised its fault
not to send [him] for the proper medical examinations immediately after
the injury and apologised to him” and that he was suggested by the
Respondent’s doctor to wear a cast (cf., supra, point I./11). In this respect,
the members of the Chamber stressed the need to disregard such
statement in their line of reasoning since, bearing in mind art. 12 par. 3 of
the Procedural Rules, in accordance with which any party claiming a right
on the basis of an alleged fact shall carry the burden of proof, the
Claimant had failed to produce any evidence in support of his statement.
19.
For the sake of argument, the members of the DRC deemed to add one
more consideration, although not crucial for the decision, in relation to the
Claimant’s allegations. It was noticed, in fact, that – on the one hand – the
Claimant argued that the Respondent’s medical team had grossly
overlooked the severity of his injury. On the other hand, however, he
waited a few months before undergoing further exams after those
undertaken in Country D at the facilities indicated by the Respondent, as
the medical receipts submitted showed (cf. below point II./22). In this
context, the DRC was also mindful that the Claimant had played, although
only a few minutes, in two official games which followed his injury, on 19
and 26 June 2016.
20.
In respect of the foregoing, the members of the Chamber had to conclude
that the Claimant did not prove beyond any reasonable doubt that, had
the Respondent’s medical staff adopted a different approach in treating
Player A, Country B / Club C, Country D
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his injury, he would have not suffered a permanent incapacity as a
consequence thereof.
21.
However, the Chamber wished to highlight that – even assuming the
possibility to establish on the basis of the evidence produced that a better
treatment was possible at the time of the injury – the Respondent could
not be held responsible of any contractual breach in the matter at hand. In
the opinion of the members of the DRC, the facts of the case showcased
that the Respondent abided by the provisions of the employment contract,
which imposed on the latter an obligation to provide “free medical care
and other necessary and appropriate treatment for injuries sustained by
[the Claimant] during participation in activities based on the contract”. In
other words, regardless of whether, ex post, it could be somehow
demonstrated the appropriateness of a different medical treatment, the
DRC considered that the Respondent had acted in respect of its
obligations, providing the Claimant with the necessary medical care after
the injury.
22. In continuation, the Chamber turned its attention to the Claimant’s request
for reimbursement of the medical costs incurred. In this respect, the
members of the DRC took into account the medical receipts submitted by
the Claimant and noted that they referred to services rendered in
December 2016, February 2017 and August 2017. Bearing in mind that the
employment contract with the Respondent expired on 31 July 2016, the
DRC decided to reject the Claimant’s request in this respect, due to the lack
of any contractual basis. For the sake of completeness, the members of the
Chamber observed that, pursuant to the agreed contractual provision, the
Claimant was not entitled anyway to request reimbursement for medical
costs incurred with physicians at medical facilities of his own choice.
23. By the same token, the members of the Chamber decided to reject the
Claimant’s request for reimbursement of the flight tickets due to the lack
of contractual grounds, as the employment contract does not contain any
provision concerning the granting or the reimbursement of flight tickets.
24. All the above led the Dispute Resolution Chamber to conclude that the
claim of the Claimant has to be rejected.
III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Player A, is rejected.
Player A, Country B / Club C, Country D
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*****
Note relating to the m otiv ated decis ion (legal remedy):
According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed
against before the Court of Arbitration for Sport (CAS). The statement of appeal
must be sent to the CAS directly within 21 days of receipt of notification of this
decision and shall contain all the elements in accordance with point 2 of the
directives issued by the CAS, a copy of which we enclose hereto. Within another
10 days following the expiry of the time limit for filing the statement of appeal,
the appellant shall file a brief stating the facts and legal arguments giving rise
to the appeal with the CAS (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport (CAS)
Avenue de Beaumont 2
CH-1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal Officer
Encl.: CAS directives
Player A, Country B / Club C, Country D
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