Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed on 3 April 2024
regarding an employment-related dispute concerning the player A
BY:
Andre dos Santos Megale, Brazil
CLAIMANT:
A, Country A
Represented by
RESPONDENT:
B, Country B
pg. 2
I. Facts of the case
1.
On 16 August 2020, the Country A player, A (hereinafter: Player or Claimant), and the
Country B club, B (hereinafter: Club or Respondent), concluded an employment contract
valid as from the date of signature until 30 June 2023 (hereinafter: Employment Contract).
2.
Pursuant to clause V of the Employment Contract, the Club undertook to pay to the Player
inter alia a total remuneration of EUR 408,000 net.
3.
Clause VII of the Employment Contract reads inter alia as follows:
“VII. DUTIES OF PARTIES
7.1. Player shall:
[...]
m) in case of accident, during the training or during a game or in case of illness or upon
the request of the Club, the Player shall come forthwith to the doctor of medical facility
that services the Club or to any such facility as indicated;
n) submit to any sport-specific medical treatment or recovery procedure prescribed;
o) report to Club managers or any findings made by the medical staff with regard to his
health condition. In any case, any disclosure of information made by the doctor to the
Club managers on the health condition of the Player shall not be deemed a breach of
doctor-patient privilege.
[...]
7.2. The Club shall:
[...]
b) provide the Player, subject to the Internal Regulations Manual, with proper training
conditions for meeting the intended objectives, including but not limited to playing and
training fields, coaches and other qualified specialists as well as any means necessary
for participation to competitions, medical recovery and rehabilitation services”.
4.
Clause XII of the Employment Contract reads as follows:
“Any dispute between the Parties arising from or in connection with this Agreement,
including its validity, interpretation, execution or termination, shall be settle[d]
ami[c]ably. Unless the Parties shall reach an ami[c]able resolution competent bodies of
pg. 3
the Football Federation Country B with respect of the Country B legislation Regulations,
namely the National Chamber of Dispute Resolution, the Appeals Chamber from Football
Federation Country B, exactly on this order”.
5.
On 11 August 2022, the Player injured his Anterior Cruciate Ligament (ACL) while rendering
services to the Club.
6.
On 23 August 2022, the Player underwent surgery in City C, Country C. According to the
invoice filed by the Player, the medical costs amounted to EUR 20,000 and were paid by
him.
7.
On 7 September 2022, the president of the Club, Mr XX, stated as follows in an interview to
the sports media, quoted verbatim:
“Mr. YY came with massive investments and we are close to the truth of what we wanted.
Salaries are up to date, there are still bonuses, certain bonuses. Unforeseen expenses
also arose, for example [the Player’s] injury. A sum of 20,000 euros is to be paid for his
recovery. There is trust, the players have understood that we are with them.
Everything written about insolvency turned out to be untrue. More money has been
invested that the Conference League prizes. Bankruptcy would not have been a possibility
even without Conference League qualification. The financier assured us that he will
continue to support the team”.
8.
On 13 December 2022, the Player put the Club in default for payment of the
reimbursement of his medical expenses for an amount of EUR 20,000. He granted a 10
days’ deadline for the Club to cure the breach.
9.
On 16 December 2022, the Club addressed the Player a letter titled “Call for Medical
Evaluation”. Accordingly, it urged the Player to inter alia “clarify [his] medical situation”, as set
out in the Employment Contract.
10. On 23 December 2022, the Club replied to the Player’s notice of 13 December 2022 and
challenged his entitlement to the reimbursement sought. Contextually, the Club stressed
that the Player had the possibility of undergoing medical treatment within the Club’s
medical department but decided not to do so on his own choice. Consequently, the Club
argued that it was no longer liable to any reimbursement.
11. On 18 April 2023, the Club notified the Player of the opening of disciplinary proceedings
against him, as follows:
“The disciplinary proceedings were started taking into consideration the following:
pg. 4
-
Between 13 of April 2023 and 15 of April 2023, according to the report to the press
officer of [the Club], you offered multiple interviews for the Country B sports media
in which you have made some statements that affect the public image and interests
of [the Club], without any prior consent of any of the Club’s representatives;
-
Your obligation to comply with the contractual clauses of the sporting activity
contract concluded with our club and with the provisions of the Internal Disciplinary
Regulation and Code of Conduct for the 2022/2023 competitive season, registered at
Country B Football Federation and Country B Professional Football League;
-
Failure to comply with the above-mentioned obligation and making any kind of public
statements, especially those that may affect the image and/or the interest of the Club
represents a breach of the contract and of the Internal Disciplinary Regulation and
Code of Conduct for the 2022/2023 competitive season and disciplinary measures
shall be imposed (Article 6, 7 of the Regulation):
6.15. Not to make any phone interview. Any audio or video interview will be
make only in an official manner and in the presence and/or with the
permission of the press officer of the club, permission that shall be previously
requested, otherwise the misbehaviour will be sanctioned with a sporting
penalty between 500 euros and 1.000 euros.
-
Such disciplinary measures consist in sporting penalties, according to art. 7 point 1
of the Internal Disciplinary Regulation and Code of Conduct for the 2022/2023
competitive season:
7.1. Any declaration that harms the interests of the Club will be sanctioned with
a sporting penalty between 500 euros and 1.000 euros”.
12. On 24 April 2023, the Club communicated to the Player the “Decision of the Management
Board” in the disciplinary proceedings opened against him. Accordingly, the Player was
fined for an amount of EUR 2,000.
13. On 11 May 2023, the Player sent a letter to the Country B Football Federation (FAB) and
UEFA informing about the unlawful fine applied imposed on him, as well as the Club’s
failure to reimburse the medical costs for his ACL surgery. The Player requested the
concerned authorities to take the Club’s breaches into consideration while assessing the
license for the upcoming season.
14. Around the same date, the Club replied to the abovementioned letter – also with copy to
the FAB and UEFA – and disputed his narrative as to the outstanding remuneration.
15. On 29 June 2023, the Player addressed a new letter to UEFA reiterating his entitlement to
overdue payables against the Club.
pg. 5
II. Proceedings before FIFA
16. On 7 February 2024, the Player filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Position of the Player
17. In his claim, the Player recalled the context of his injury, the Club’s duty to cover his medical
expenses, and the correspondences exchanged by the parties in this respect. Furthermore,
the Player highlighted that the president of the Club expressly acknowledged its debt in a
public statement, making its liability even clearer.
18. Given the above, the Player referred to art. 12bis of the FIFA Regulations on the Status and
Transfer of Player (RSTP) and requested to be awarded the reimbursement of the amount
paid on 23 September 2022, namely EUR 20,000, plus 5% interest p.a. as from such date.
b. Position of the Club
19. On 8 March 2024, the Club replied to the claim of the Player.
20. In its reply, the Club firstly challenged the jurisdiction of FIFA to entertain the dispute at
hand based on clause XII of the Employment Contract. The Club claimed that the National
Dispute Resolution Chamber within the FAB (hereinafter: FAB NDRC) would be exclusively
competent to enter into the merits of this claim, however it filed no supporting
documentation in this respect.
21. Alternatively, the Club also challenged the substance of the Player’s claim. In particular, the
Club argued that the Player was insured in Country B however decided to undergo
treatment in Country C by own personal choice, reason why it should not be liable to cover
any expense incurred outside of the country.
22. As to the public statement of its president, the Club stated as follows, in verbis:
“19. However, it is not true that the President of the Club, Mr. xx, assumed on behalf of
the Club to pay the medical costs related to the Player’s recovery.
20. The Claimant is playing with the wording presenting to the Football that the statement
of the President was made in connection to the requested recovery costs.
21. In fact, we reserve our doubts regarding the content of the attached article, but as
the situation arise from its content, the President was trying to assure all the Club’s
pg. 6
partners, all the players and the administrative staff of the Club that the insolvency rumor
appeared in the media was just a rumor and the Club managed to pay all the outstanding
debts.
22. The Player followed his desire to undergo surgery in a medical clinic chosen by him,
outside Country B (where he was registered as a Player for [the Club]), more specifically
in Italy, without explicitly consent from the Club.
23. The Club never assumed to pay the costs related to the recovery incurred abroad as
there was no contractual obligation to do so nor it was convenient, for the Player’s
development, to recover far from the team when he had the chance to recover within the
Club as the latter has one of the best physiotherapist in this area of practice and would
have been more useful for both Parties”.
23. In addition, the Club referred to the disciplinary proceedings opened against the Player,
allegedly corroborating his bad faith. Furthermore, it confirmed having been granted by
UEFA a license to participate in competitions, therefore demonstrating that there were no
overdue payables towards the Player.
24. In light of the above, the Club requested that the claim of the Player be entirely rejected.
III. Considerations of the Dispute Resolution Chamber
a. Jurisdiction
25. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter: Single Judge)
analysed whether he was competent to deal with the case at hand. In this respect, he took
note that the present matter was presented to FIFA on 7 February 2024 and submitted for
decision on 3 April 2024. Taking into account the wording of art. 34 of the March 2023
edition of the Procedural Rules Governing the Football Tribunal (hereinafter: Procedural
Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at
hand.
26. Furthermore, the Single Judge 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 RSTP
(February 2024 edition), the Dispute Resolution Chamber is – in principle – competent to
deal with the matter at stake, which concerns an employment-related dispute with an
international dimension between a Country A player and a Country B club.
27. At this point, the Single Judge acknowledged that the Club challenged the competence of
FIFA’s deciding bodies in favour of the Country B NDRC alleging that said body is exclusively
competent to deal with any disputes deriving from the Employment Contract, in
accordance with its clause of dispute resolution.
pg. 7
28. In this respect, the Single Judge firstly recalled that the claim at hand was submitted by the
Player on 7 February 2024. In line with the RSTP (edition February 2024) (hereinafter:
Regulations), such edition is applicable to the case at hand. Nevertheless, per art. 26, par.
1 of the Regulations, “art. 22 par. 1, b) and c) shall apply only to cases brought to FIFA as from
1 January 2025. Any other case shall be assessed according to the previous regulations”.
29. Consequently, the Single Judge established that in accordance with art. 22 par. 1 lit. b) of
the RSTP (edition of May 2023), FIFA is, in principle, competent to hear an employmentrelated 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 coaches and clubs.
Equally, the deciding-body must respect the principles contained in the FIFA National
Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force on 1
January 2008.
30. With the above in mind, the Single Judge acknowledged that the Club failed to provide any
documentary evidence which could prove that the Country B NDRC meets the
requirements established in the abovementioned legal framework. Consequently, the
Single Judge decided that the Club’s objection towards the competence of FIFA to deal with
the present matter must be rejected.
31. It followed, in the Single Judge’s view that FIFA is competent to consider the present matter
as to the substance.
b. Burden of proof
32. The Single Judge 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 Single Judge
stressed the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which he 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
33. The competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, the Single Judge started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Single Judge emphasised that in the following
pg. 8
considerations he will refer only to the facts, arguments, and documentary evidence, which
he considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
34. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that it pertains to a claim for reimbursement of medical
costs lodged by the Player against the Club.
35. In particular, the Single Judge noted that it remained undisputed between the parties that
the Player suffered a knee injury while playing for the Club’s team in August 2022 reason
why he underwent surgery and incurred in medical costs of EUR 20,000. Consequently, the
Player claims that he shall be entitled to the reimbursement of the abovementioned
amount, whereas the Club opposes to any liability insofar as the Player allegedly decided
to seek treatment in a different country at his own and without authorization.
36. In view of the dissent between the parties, the Single Judge identified that his task is to
establish on the basis of the documentation on file whether there is indeed any basis for
the reimbursement now sought.
37. In light of the above, the Single Judge initially observed that the Employment Contract does
not provide for a clear procedure to be following in case of injuries. To the contrary, the
only references therein included concern (i) the obligation of the Player to follow the Club’s
orientations for rehabilitation, as well as keep it posted of his medical health; and (ii) the
obligation of the Club to provide him with “medical recovery and rehabilitation services”. The
Single Judge found it noteworthy that there was no type of contractual restriction for the
Player to pursue his treatment outside of Country B, let alone any provision suggesting that
such a decision would entail that the expenses linked to the medical care would no longer
be attributable to the Club.
38. The Single Judge further observed that the documentation on file corroborated that the
Club’s medical team was aware of the Player’s injury. In fact, (i) such injury appeared to
have happened during one of the Club’s official matches; (ii) the president of the Club
publicly acknowledged the occurrence of the injury and the costs involved; and (iii) the Club
has never denied its knowledge of the Player’s medical condition and the need to undergo
surgery.
39. In parallel, the Single Judge highlighted that although the Club claimed that it never
consented to the Player undergoing treatment (and surgery) abroad, it failed to prove that
it ever objected to his decision and/or proposed an alternative solution. Had that been the
case, the Single Judge considered that the Club would be in a position to file reports /
orientations given by its own doctor(s) or at least to support its position that the Player has
refused to follow their instructions and to return to undergo treatment in Country B.
Nevertheless, from the (lack of) documentation on file, the Single Judge could only infer
pg. 9
that the Player decided to undergo treatment in Country C and the Club, either expressly
or tacitly, accepted his choice.
40. Consequently, despite being of the opinion that the parties could have engaged in a clearer
way of communication, the Single Judge deemed that the Player could sufficiently establish
that he acted in good faith to pursue the best medical treatment to his own needs, whilst
the Club, by not proactively objecting or offering any alternatives, accepted his choice.
41. It followed, in the Single Judge’s view, that the Club should be liable to reimburse the costs
involved. He stressed that his position was also in line with the jurisprudence of the Dispute
Resolution Chamber, which dictates that clubs are normally required to provide for the
players’ medical care.
42. For completeness, the Single Judge felt further comforted with this conclusion by
considering that:
• Per the contents of the public statement of the president of the Club, the latter
expressly acknowledged its liability to the amount now sought by the Player.
Despite the whereabouts of such declaration being challenged by the Club, it
remained undisputed that its president was indeed aware of the financial duty.
• the reference made by the Club to the disciplinary proceedings opened against the
Player bears no connection with the circumstances of the injury, therefore is
irrelevant to the case at hand. Likewise, the Player does not claim any amount
other than the reimbursement of medical costs, hence the position of the Club in
this regard is immaterial to analysis sub judice.
• Equally immaterial to the analysis are the Club’s allegations concerning the
licensing system of UEFA. This is because there is no evidence on file suggesting
that the reimbursement now claimed was properly addressed by any other
deciding body, let alone that there was any decision in this respect. Therefore, the
mere fact that a license has been granted (which is also undocumented) is not
sufficient to support that the Club is no longer liable to a contractually stipulated
financial obligation.
43. Having established the above, the Single Judge then acknowledged that the quantum
requested by the Player was supported by documentary evidence and was not specifically
disputed by the Club. Consequently, he decided that the Player should be awarded the EUR
20,000 as claimed.
44. Notwithstanding the above, the Single Judge could not fail to observe that there was no
specific date of payment in the invoice submitted by the Player, reason why he decided to
award him interest of 5% p.a. as from the date of the first notice (i.e., 13 December 2022)
until the date of effective payment.
pg. 10
ii. Art. 12bis of the Regulations
45. In continuation, the Single Judge referred to art. 12bis par. 2 of the Regulations, which
stipulates that any club found to have delayed a due payment for more than 30 days
without a prima facie contractual basis may be sanctioned in accordance with art. 12bis
par. 4 of the Regulations.
46. To this end, the Single Judge confirmed that the Player put the Club in default of payment
of the amounts sought, which had fallen due form more than 30 days, and granted the
Club with 10 days to cure such breach of contract.
47. The Single Judge further established that by virtue of art. 12bis par. 4 of the Regulations he
has competence to impose sanctions on the club. On account of the above and bearing in
mind that the Club is a repeat offender, the Single Judge decided to impose a fine on it in
accordance with art. 12bis par. 4 lit. c) of the Regulations.
48. Furthermore, the Single Judge regarded a fine amounting to USD 3,000 as appropriate and
hence decided to impose said fine on the Club.
49. In this connection, the Single Judge wished to highlight that a repeated offence will be
considered as an aggravating circumstance and lead to more severe penalty in accordance
with art. 12bis par. 6 of the Regulations.
iii. Compliance with monetary decisions
50. Finally, taking into account the applicable Regulations, the Single Judge 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.
51. In this regard, the Single Judge 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.
52. Therefore, bearing in mind the above, the Single Judge decided that the Club must pay the
full amount due (including all applicable interest) to the Player within 45 days of notification
of the decision, failing which, at the request of the Player, 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 Club in
accordance with art. 24 par. 2, 4, and 7 of the Regulations.
pg. 11
53. The Club shall make full payment (including all applicable interest) to the bank account
provided by the Player in the Bank Account Registration Form, which is attached to the
present decision.
54. The Single Judge 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
55. The Single Judge 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 Single Judge decided that no procedural costs were to be
imposed on the parties.
56. Likewise, and for the sake of completeness, the Single Judge recalled the contents of art.
25 par. 8 of the Procedural Rules and decided that no procedural compensation shall be
awarded in these proceedings.
57. Lastly, the Single Judge 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 Football Tribunal has jurisdiction to hear the claim of the Claimant, A.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, B, must pay to the Claimant EUR 20,000 as outstanding remuneration plus
5% interest p.a. as from 13 December 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.
9.
A fine in the amount of USD 3,000 is imposed on the Respondent, which must be paid to FIFA
within 30 days of notification of this decision. Such fine must be paid to the following bank
account with a clear reference to the case FPSD-13633:
UBS Zurich
Account number 230-366677.61N (FIFA Players’ Status) | Clearing number 230
IBAN: CH12 0023 0230 3666 7761 N | SWIFT: UBSWCHZH80A
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 13
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
pg. 14