Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed on 2 March 2023
regarding an employment-related dispute concerning
the player B
BY:
Frans de Weger (the Netherlands), Chairperson
Peter Lukasek (Slovakia), member
Laurel Vaurasi (Fiji), member
CLAIMANT:
A, Country A
RESPONDENT:
B, Countries B
Represented by
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I. Facts of the case
1. On 13 August 2019, the Country A club A (hereinafter the Club) and the Countries B Player B
(hereinafter the Player) concluded an employment contract valid as from the date of
signature until 8 June 2024 (hereinafter the Contract).
2. In accordance with art. 2 of the Contract, the Club undertook to pay the Player a monthly
remuneration of EUR 785.
3. Furthermore, art. 4.7 of the Contract stipulates as follows:
“4.7 The player shall never, under any circumstances, engage in activities which are in breach of any
laws of Country A or regulations of FIFA, UEFA or the Football Association Country A in relation to the
manipulation of football matches, the direct or indirect betting on all football competitions of the
Football Association Country A, international matches of UEFA or FIFA in which a Country A team is
involved, any other match in which a team of the Club is involved, or the use of substances found in
the prohibited list of the World Anti-Doping Agency. This shall include also the breach of the duty of
the player to report any knowledge of match-fixing cases in the said laws and regulations. The
infringement of this sub-article will be treated as a just cause for the unilateral termination of this
Contract. Moreover, both parties are committed to act against racism and other discriminatory acts
in football.
4. On 20 December 2021, the Club agreed a loan deal for the Player with a different local team,
beginning with immediate effect until the end of the season 2021-2022, to permit him getting
playing time. The Player expressed his unhappiness about this decision to the Club
immediately.
5. On 21 December 2021, the Player received his salary and asked why it was “short”. The Club
said it deducted certain amounts which were loaned to the Player for an unspecified medical
treatment. The Player was outraged by this, saying that he did not see why he should “pay
for his own health care”, to which the Club responded that mental health was not footballrelated and would fall under the Player’s own expenses.
6. The Player repeatedly stated he felt disrespected by the Club’s attitude regarding this issue.
The Club, subsequently, through its representative, stated “you are right, I will address this
later because it is a serious issue”, and wished him good luck for the upcoming loan.
7. Following the end of the season 2021/2022, the Player requested the Club to visit his family
abroad. Authorization for such leave was granted by the Club with the exception that the
Player would return before the beginning of the season, for the scheduled UEFA Europa
League matches.
8. In May 2022, the Player informed the Club that his return would be delayed, on account of
his passport having expired, as well as a family emergency occurring.
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9. On 22 May 2022, the Club asked the Player for an update, in order to be able to book flights
for him to return.
10. On 26 May 2022, the Club and the Player exchanged messages, in which the Club once again
asked the Player to update them regarding his foreseeable arrival date. When the Player told
the Club that he was waiting for his passport to be renewed, the Club reprimanded him and
told him that he should have renewed his passport from the first day he was on leave.
11. On 13 June 2022, the Player informed the Club that he would collect his passport the next
day.
12. On 14 June 2022, the Club asked for a photo of the new passport to purchase flight tickets.
13. On 16 June 2022, the Player sent the Club a photo of his new passport.
14. On 17 June 2022, the Club proposed a flight date to the Player. The Player said he would look
for a cheaper flight and get in touch with the Club soon.
15. On 21 June 2022, the Club chased the Player regarding the flight dates and asked him to
make a decision, as there was no time to delay any further. The Player agreed to the
proposed flight date (12 July 2022), and the same evening, the Club sent the Player the ticket.
16. On 10 July 2022, the Player obtained a medical report from a licensed psychologist, which
outlined that he was suffering from clinical depression and gastric issues, and that he was
undergoing treatment in Country B because he feared not having access to health care in
Country A, where the Club is based. The report also outlined that the Player was taking
prescribed medication at the time he went on loan, stopped taking this medication after an
improvement of his condition, and subsequently began consuming alcohol and marijuana
on his own initiative to ease the reoccurring symptoms, which instead worsened his
condition even further. This report was not communicated at this time to the Club.
17. On 11 July 2022, the Player informed the Club that he is unable to catch the flight the next
day, as his daughter was unwell. The Club replied that his family takes priority, but that
another flight must be booked and that there is no refund available.
18. On 14 July 2022, the Player informed that his daughter would be cleared to leave the hospital
the next day.
19. On 15 July 2022, the Player sent a message to the Club, saying that he needed to do an eye
test and stomach test on the following Monday (18 July 2022).
20. The next day, the Club stated that the Player had time to do all these tests before needing to
return for his duties, the same way he had time to renew his passport, and that he was acting
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unprofessionally.
21. On 24 July 2022, the Club sent the Player an accommodation reservation form and asked the
Player to sign, as well as to confirm when he is able to return.
22. The next day, the Player said that he would send the document and said that, once the rest
of the team arrives in Country A, he would also be able to travel back.
23. On 12 August 2022, the Player asked for an update from the Club regarding when he would
return.
24. On 19 August 2022, the Club proposed a flight date for the Player to return.
25. On 20 August 2022, the Player said that said date would not work and that he would explain
in due course and in detail why this was the case.
26. On 21 August 2022, the Player informed the Club via a third person that he was suffering
from an acute mental disorder which rendered him uncapable of performing his duties. The
Club asked why the Player was raising a medical issue one day before the season was
starting. The Player outlined that it was a “matter of life and death” and that he would
communicate the medical report the following day.
27. On 23 August 2022, the Club told the Player in which it denounced the previous
correspondence as “delaying tactics to terminate the Contract”, and requested to see the
medical information at the basis of the diagnosis in order to determine further steps.
28. In the meantime, the Player communicated the medical report that had been produced on
10 July 2022.
29. On 24 August 2022, the Club’s doctor provided an analysis of the Player’s medical condition,
after having received the report issued on 10 July 2022. Said report corroborated most of
what the previous report stated, but emphasized on the aggravating effect of the Player’s
condition due to the consumption of alcohol and marijuana.
30. On 29 August 2022, the Club replied to the Player, stating that the Player has acted contrary
to the terms of the Contract, as well as the applicable anti-doping regulations, which it
considered to be sufficient grounds to terminate the Contract with just cause. Therefore, the
Club invited the Player to enter negotiations for an amicable settlement.
In the same correspondence, the Club proposed the following terms of termination:
-
Mutual termination of the Contract;
Repayment by the Player to the Club of the transfer fee that was paid to hire the Player’s
services (EUR 20,000), amortised over the 5-year term of the Contract;
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-
Reimbursement of the flight ticket to return to Country A, purchased by the Club;
Payment for the expenses for the issue of the residence card;
Payment of the residual value of the Contract.
31. On 8 September 2022, the Player replied to the Club, confirming that termination of the
Contract was inevitable, and made a counteroffer of mutual termination, comprising only of
the payment of the flight ticket, stating that his condition is preventing him from carrying out
his activity as a professional footballer, and that this is all he could afford to reimburse the
Club.
32. On 18 October 2022, the Club followed up with the Player to request how he would like to
proceed with the payment of the amounts outlined in the offer of mutual termination
communicated on 29 August 2022. The Club requested the Player to reply to it within a period
of 28 days.
II. Proceedings before FIFA
33. On 21 November 2022, the Club lodged a claim before FIFA for compensation due to the
unlawful breach of Contract by the Player. The parties’ submissions may be summarised as
follows:
a. Position of the Club
34. The Club outlined that the Player had failed to return to the Club on account of his mental
health condition, which it considered not to be a valid reason to stop rendering services
under the Contract.
35. The Club also asserted that the use of alcohol and marijuana, which was established in the
medical report submitted by the Player himself, was a significant breach of the Contract and
the applicable anti-doping regulations, thereby giving rise to just cause to terminate the
Contract. The totality of these factors led the Club to initiate termination negotiations with
the Player, requesting the residual value of the Contract from him as payment, as well as a
number of additional amounts.
36. The Club requested payment of the following amounts:
-
Residual value of the Contract: EUR 15,600
Transfer fee when Player was purchased, pro rata for 2 year duration before termination:
EUR 8,000
Costs for residence permit renewal: EUR 280.65
Flight costs: invoice not attached, amount unclear
37. No interest was requested on the above amounts; the Club also requested the imposition of
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sporting sanctions on the Player.
POSITION OF THE RESPONDENT
b. Response of the Player
38. In his reply, the Player confirmed that he failed to return to the Club due to his medical
condition, as he was suffering from clinical depression due to not being able to see his family
for extended time, as well as this deteriorating once his daughter fell ill. The Player raised
that he had informed the Club about this condition prior to leaving for Country B following
the end of the 2021/2022 season, and that on repeated occasions, the Club told him that his
mental health was a “personal issue” and not one that should interfere with his obligations
under the Contract. The Player also pointed out that the Club supported him very little in
combating this condition, by stating that he medical care undertaken by the latter under the
Contract “did not cover mental health”, and that this was a further reason for not returning.
39. The Player outlined that his use of marijuana was purely to “soothe the overwhelming pain”
he was suffering from, and that he was not aware that it would compromise his health, as
well as his relationship with the Club. The Player also wished to stress that this conduct took
place during the off season, and that during the regular season, he had never acted in a way
to harm himself or the rest of the team.
40. The Player therefore requested that the Contract be declared as terminated due to force
majeure, rather than on the basis of abusive conduct by himself, and that no sanctions be
imposed in the present case.
pg. 7
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
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. In this respect, it
took note that the present matter was presented to FIFA on 21 November 2022 and
submitted for decision on 2 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.
2.
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 lit. b) of the
Regulations on the Status and Transfer of Players October 2022 edition), the Dispute
Resolution Chamber is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a Country A club
and a Country B player.
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 (October 2022 edition), and
considering that the present claim was lodged on 15 February 2023, the October 2022
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
4.
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
5.
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
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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
6.
The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the parties strongly dispute lawfulness of the Player’s
behaviour, and the consequent contractual termination.
7.
In this context, the Chamber acknowledged that it its task was to determine whether the
Player had, indeed, engaged in abusive conduct, as purported by the Club, to the extent of
permitting the premature termination of the Contract by the Club, and further what the
consequences of such termination might be for the respective counterparty.
8.
In this respect, the Chamber firstly recalled the submission of the Club, namely that the
primary reason for the termination of the Contract was the failure of the Player to return
for the beginning of the season, following authorisation to leave in order to visit his family.
The Club argued that the Player was making up excuses in order not to return and was
thereby forcing the termination of the Contract abusively, as well as stressing that the
consumption of alcohol and drugs was serious enough misconduct to warrant the
termination of the Contract in and of itself.
9.
On the other hand, the Chamber took note of the Player’s submission, in which his
extended absence was justified by three main factors: the expiry of his passport, the
precarious health situation of his daughter, and most centrally his own medical condition,
which revolved around his mental health.
10. The Chamber further observed that both parties submitted ample evidence, in particular
with regard to correspondence exchanged, as well as medical documentation which
revealed that the Player was suffering from clinical depression.
11. Before considering the lawfulness of the contractual termination, the Chamber addressed
the Club’s request for reimbursement for the renewal of the Player’s residence permit and
flight tickets. In this respect, the Chamber noted that the Player could not be established
to have formally undertaken to reimburse the Club for the costs for renewing his residence
permit, or flights costs based on the evidence on file. Moreover, the Chamber observed
that there was indeed no contractual basis for the said amounts.
12. As such, in any event, the Chamber deemed that the Club’s request for reimbursement
should be rejected in the present case.
13. Turning to the lawfulness of the contractual termination, the Chamber deemed it
appropriate to remind the parties 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
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criteria (as opposed to subjective, for example, contractually stipulated criteria) which do
not reasonably permit to expect the 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 to ensure the fulfilment of the contractual duties by
the counterparty, 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.
14. In line with the above, the Chamber summarised the points of particular importance in the
present case, which it deemed essential for establishing the relationship between the
parties at the point the Contract had been terminated.
15. The Chamber considered it significant that the Player had provided extensive and
legitimate evidence as to his absence, namely the expiry of his passport, the need to tend
to his daughter’s health at the time, and the diagnosis of clinical depression, all of which
had been duly communicated to the Club. The Chamber, in this respect, stressed that the
Player could, under no circumstances, be held to have “made up excuses” to delay his
return.
16. Furthermore, the Chamber remarked that the Club had been in constant contact with the
Player and displayed clear interest in continuing the contractual relationship, by
communicating on several occasions flight tickets and schedules of reintegration into the
squad following the expiration of his loan. The Chamber observed that, only after being
made aware of the Player’s condition, and the contents of the pertinent medical report, the
Club terminated the Contract, with particular emphasis on the Player’s consumption of
alcohol and marijuana which had been revealed therein.
17. Having summarised the central points of the parties’ previous interactions, the Chamber
established that, as the Player’s failure to return had been fully corroborated with adequate
evidence, it had to determine whether his consumption of alcohol and marijuana could be
deemed as a severe enough breach of his obligations so as to permit the premature
termination of the Contract by the Club as an ultima ratio measure, and to give rise to the
liability of the Player to compensate the Club for such breach of contract.
18. The Chamber wished to point out that although the Club based its termination on art. 4.7
of the Contract, there was no evidence of the amount, frequency or a specific period of
time when the consumption occurred, and there were no proper internal disciplinary
proceedings conducted in order for the Club to clearly establish that a violation of the
Contract had occurred. While the Chamber was mindful of the fact that the Player admitted
to reverting to the consumption of alcohol and marijuana in order to tackle the symptoms
of his condition, and provided no evidence to show that he was doing so via a medical
recommendation, simply admitting to using such substances in a medical report conducted
for other purposes, was not considered as sufficient to clearly establish that a severe
breach of contract had occurred.
pg. 10
19. At the same time, whilst closely observing the timeline around the contractual termination,
the Chamber noted that the Club almost immediately terminated the Contract after
becoming aware of the content of the Player’s medical report and his conduct as outlined
above. However, the medical report also contained information about the Player’s medical
condition of being diagnosed with clinical depression.
20. The Chamber stressed that the mental health of players is just as important as their
physical health, although not as much on display as physical injuries. What is understood
as common with regards to physical injuries, yet frequently overlooked in cases of
psychological issues, is the duty of care owed to players by their respective clubs. As clubs
are obliged to provide or arrange for treatment of physical injuries that occurred while
performing employment contracts, the same standard of care must be applied in issues of
a mental nature.
21. Applying such standard in the case at hand, the Chamber noticed that the Club became
aware of the presence psychological struggles long before the termination of the Contract,
more specifically when directly informed by the Player when he went on loan.
Notwithstanding, the Club’s failure to address the Player’s “cry for help” properly had
resulted in the Player’s medical condition going undetected, undiagnosed, and
inadequately treated. Failure to provide professional medical help and proper attention to
the Player’s mental health while being fully aware of his condition, constituted a breach of
the Club’s duty of care.
22. Moreover, such breach of the Club’s duty of care, particularly in the context of the Player’s
medical condition remaining untreated, placed the Player in a vulnerable position, that had,
to an extent, vindicated his conduct. The Chamber considered that a different and more
lenient set of measures was available to address the Player’s conduct and medical
situation, as opposed to the immediate termination of the Contract – such as conducting
an internal investigation or attempting to provide support and treatment to the Player in
dealing with his medical condition.
23. Therefore, the Chamber concluded that the termination of the Contract, notwithstanding
the Player’s conduct, could not be considered an ultima ratio measure, and thus deemed
that the Club terminated the Contract without just cause.
24. The Chamber, consequently, decided to reject the claim of the Club in its entirety.
d. Costs
25. 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,
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or match agent”. Accordingly, the Chamber decided that no procedural costs were to be
imposed on the parties.
26. 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.
27. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 12
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, A, is rejected.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this
decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request
of a party within five days of the notification of the motivated decision, to publish an
anonymised or a redacted version (cf. article 17 of the Procedural Rules Governing the Football
Tribunal).
CONTACT INFORMATION
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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