Labour Disputes
Texto da decisão
REF. FPSD-15151
Decision of the
Dispute Resolution Chamber
passed on 12 December 2024
regarding an employment-related dispute concerning the player
Renato Augusto Santos Junior
COMPOSITION:
Lívia SILVA KÄGI (Brazil & Switzerland), Deputy Chairwoman
Roy VERMEER (The Netherlands), Member
Alejandro ATILIO TARABORELLI (Argentina & Italy), Member
CLAIMANT:
Renato Augusto Santos Junior, Brazil
Represented by CSMV Advogados
RESPONDENT:
Shimizu S-Pulse, Japan
Represented by Nuno Barbosa
pg. 2
REF. FPSD-15151
I. Facts of the case
1.
On 10 October 2019, the Brazilian player Renato Augusto Santos Junior (hereinafter, the
Claimant or the Player) and the Japanese club Shimizu S-Pulse (hereinafter, the Respondent
or the Club) concluded an employment contract that was subsequently renewed on 22
November 2020, with validity as from 2 January 2021 until 1 January 2024 (hereinafter, the
Contract).
2.
Pursuant to Clause 2 of the Contract, the Club undertook to pay to the Player (hereinafter,
jointly referred to as the Parties) a total fixed remuneration of USD 1,650,000 net.
3.
On 27 May 2022, Dr Ramón Cugat, a renowned specialist in orthopaedic surgery and
trauma medicine, issued a report on a knee injury suffered by the Player. According to the
medical report:
“(…) after the surgery in 2021, he is still suffering pain (…). He has not been able to recover the
muscular strength before the injury (…). He has undergone intraarticular PRP infiltrations in
February 2022.
(…)
In view of all this, the following is recommended:
• Arthroscopy, intraosseous platelet-rich leucocyte-free plasma (PRP) infiltrations and
nanofracture surgery on the patella.
• No unstable lesion is seen to propose a mesh.
• Before the surgery it is highly recommended to perform a physical exploration.
• After the surgery the patient needs to perform a physical therapy and magnet therapy
programs and intraarticular F2 (PRP)”.
4.
Also on 27 May 2022, Instituto Cugat issued a budget for the surgery of the Player in the
total sum of EUR 26,695.
5.
On 7 July 2022, the Club sent a letter to Dr Ramón Cugat where it informed the latter as
follows:
“I would like to refer [the Player] to your services because of his left knee pain.
Thank you very much for sending us the report the other day.
pg. 3
REF. FPSD-15151
We have discussed with [the Player] and the club about [the Player]’s surgery and we opted to
ask Dr. Ramon Cugat to make [the Player] have an operation at Cugat’s clinic.
We are assuming that firstly, [the Player] will be going to Spain and then he will be having your
medical examination to see what the best operation will be and how long it would take to recover
from the operation.
We would like to know when the medical examination and operation could be and how we could
proceed.
[The Player] wants to have this operation as soon as possible but it would take some time since
he is currently living in Japan”.
6.
On 15 July 2022, the Club authorized the Player as follows:
“1. To have medical examination and pre-surgical procedures in Institute Cugat on 18 July 2022;
2. To have surgery by Dr Ramón Cugat on 19 July 2022”.
7.
The Player underwent a surgery on 19 July 2022 at Instituto Cugat.
8.
In August 2023, the Player suffered another knee injury.
9.
On 9 September 2023, the Parties concluded the so-called “Agreement and support for
Renato Augusto’s Injury Recovery” (hereinafter, the Agreement), pursuant to which:
“(…) I am pleased to convey that [the Club] stands fully supportive of [the Player’s] chosen path
to recovery. We respect his decision to undergo surgery under the care of a specialist of his
preference, in this case, the esteemed Dr. Ramón Cugat. With this in mind, the club is ready to
extend his assistance to [the Player] by offering reimbursement for the expenses incurred by
him during this critical phase of his rehabilitation. Please find below the details of our
agreement:
Surgical Expenses: The club acknowledges and accepts [the Player’s] decision to undergo
surgery with Dr. Ramón Cugat. We will cover the costs associated with his surgery, as specified
in the budget provided by the player from Instituto Cugat dated 17.08.2023.
Travel Costs: The club will also reimburse [the Player] for the expenses related to his travel from
Japan to Spain for the surgery and his return journey to Japan.
Rehabilitation Support: Following the information you provided, we understand that [the
Player] will be expected to remain in Spain for his recovery and rehabilitation up to a period of
30 das in Institut Cugat. Therefore, our commitment extends to [the Player’s] initial
pg. 4
REF. FPSD-15151
rehabilitation phase in Spain and we will reimburse him for rehabilitation costs for a duration
of up to 30 days following the surgery, also as specified in the budget provided by the player
from Institut Cugat dated 17.08.2023.
(…) It is essential to clarify that any additional expenses incurred by [the Player] during his stay
in Spain, such as accommodation and others, will be his personal responsibility”.
10. On 8 April 2024, the Player put the Club in default and requested reimbursement of EUR
78,821.02 and BRL 3,600, associated to both the first and the second injuries. The Player
granted the Club a deadline of ten days to comply with its contractual obligations.
11. On 19 April 2024, the Club rejected the Player’s claim informing him that the Contract did
not provide the obligation for the Club to cover the medical expenses incurred by the Player
when the treatment is sough outside of the Club’s designated medical providers.
II. Proceedings before FIFA
12. On 7 July 2024, the Player filed the claim at hand before FIFA. A summary of the Parties’
position is detailed below.
a. Position of the Player
13. According to the Player, the Club expressly consented to the two surgeries and medical
treatments being conducted by Dr Ramón Cugat in Barcelona, as well as to its associated
costs. The Player asserted that the foregoing is confirmed by the Club’s communication to
Instituto Cugat dated 7 July 2022 and the authorization dated 15 July 2022, as well as the
emails exchanged between them. Furthermore, the Player argued that the Club provided
him with flight tickets to travel to Barcelona.
14. According to the Player, the Club’s conduct with respect to the authorization to both
surgeries was similar, however, it handled its costs unlawfully and inconsistently. In this
respect, the Player argued that the Club failed to pay the great majority of his expenses
related to the first injury, while it reimbursed almost the integrity of his expenses related
to the second injury.
15. Moreover, the Player claimed that the general duty of clubs to bear responsibility for their
players’ welfare during the term of a contract is a concept widely acknowledged and
recognized by FIFA and the Court of Arbitration for Sport (CAS). In this regard, in the Player’s
view, the conduct of the Club ratifies the self-acknowledgment of the Club’s own liability to
bear the costs incurred by him, which is evidenced by the fact that the Club afforded some
of the payments of the execution of the second surgery. Accordingly, the Club cannot deny
its responsibility, as it would violate the principle of venire contra factum proprium.
pg. 5
REF. FPSD-15151
16. The Player claimed being entitled to the reimbursement of costs relating to medical
expenses, housing, nutrition and transportation. According to the Player, all these
categories are related and inherently associated to the injuries and their treatments.
17. The Player requested the following relief:
(i) To enforce FIFA’s jurisdiction as competent to rule on the matter;
(ii) To rule that the Respondent shall pay to the Player compensation of EUR 64.444,02 and USD
2.850 and BRL 3.600, plus applicable interest of 5% from the date of each expense until the date
of the relevant payment, referring to the reimbursement of the Player’s injury-related expenses
while under contract with the Respondent; and
(iii) In any event, to order the Club to cover all costs of the proceedings and to bear all the legal
fees and costs incurred by the Player in connection with the present matter.
b. Position of the Club
18. In its reply, the Club initially asserted that the Player is requesting the Club’s responsibility
on the payment of some expenses related to two injuries with a doctor of his choice in
Spain, instead of having those surgeries in Japan at no cost for the Player. Furthermore,
and related to the first injury, the Club sustained that the Player paid for all these costs and
never requested the reimbursement until his claim.
19. According to the Club, the fact that it authorized the Player to undergo surgery in Barcelona
does not imply that it accepted to pay the costs associated to it. The Club sustained that
the decision to be operated at Instituto Cugat was only the Player’s, and that the Club’s
preference was for him to be treated in Japan. In this respect, the budget regarding the first
injury was only provided to the Player, and the Club categorically denied having agreed to
pay the costs of the first injury. Furthermore, the correspondence between the Club and
Insituto Cugat does not prove the Club’s acceptance to bear the costs.
20. The Club denied its contradictory behaviour for having paid the costs of the second injury,
as the Parties in this case had concluded an agreement in this respect, which was omitted
by the Player in his claim.
21. Based on the above, related to the first injury, the Club denied the Player’s entitlement to
the reimbursement of the hotel expenses, as it always provided the Player with an
apartment in Japan, and its obligation is not applicable to hotel expenses abroad.
Furthermore, the Club argued that the evidence submitted by the Player is not clear, as the
accommodation expenses relate to two different hotels and an Airbnb for the period JulyDecember 2022, and also to different cities in Spain and in Portugal during the period he
pg. 6
REF. FPSD-15151
was supposed to be in Barcelona. The Club also denied the Player’s entitlement to any
other reimbursement.
22. As to the second injury, and based on the Agreement, the Club sustained that the Player
agreed to bear the costs that he is now claiming, which is contrary to the venire contra
factum proprium doctrine.
23. The Club requested the following relief:
“The Respondent respectfully requests the Football Tribunal to reject all claims presented by the
Claimant”.
c. Unsolicited correspondence
24. On 12 August 2024, after the closure of the submission-phase of the present proceedings,
the Player submitted unsolicited correspondence requesting a second round of
submissions.
25. On 13 August 2024, the FIFA General Secretariat informed that, based on art. 22 of the
Procedural Rules Governing the Football Tribunal (hereinafter, the Procedural Rules), in
accordance with which “The FIFA general secretariat will decide, where necessary, whether
there shall be a second round of submissions”, a second round of submissions was not
deemed necessary in the present case and that, therefore, the submission-phase of the
matter remained closed.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
26. First of all, the Dispute Resolution Chamber (hereinafter, the Chamber or the 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 7 July 2024 and submitted for decision on 12
December 2024. Taking into account the wording of art. 34 of the March 2023 edition of
the Procedural Rules (hereinafter, the Procedural Rules), the aforementioned edition of the
Procedural Rules is applicable to the matter at hand.
27. Furthermore, the Chamber referred to art. 2 par. 1 of the Procedural Rules and observed
that in accordance with art. 23 par. 1 in combination with art. 22 par. 1 lit. b) of the June
2024 edition of the Regulations on the Status and Transfer of Players (hereinafter, the
Regulations), the DRC is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a Brazilian player
and a Japanese club.
pg. 7
REF. FPSD-15151
28. 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 (June 2024 edition), and considering that the present claim was
lodged on 7 July 2024, the June 2024 edition of said Regulations is applicable to the matter
at hand as to the substance.
b. Burden of proof
29. 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
30. Having established the competence and the applicable regulations, the Chamber entered
into the merits of the dispute. In this respect, the Chamber started by acknowledging all
the above-mentioned facts as well as the arguments and the documentation on file.
However, the Chamber emphasised that in the following considerations it will refer only to
the facts, arguments and documentary evidence, which it considered pertinent for
assessing the matter at hand.
i. Main legal discussion and considerations
31. The Chamber then moved to the substance of the matter, and took note of the fact that it
concerned a claim by a player against a club for reimbursement of expenses incurred by
the former for his knee operation and treatment in Barcelona.
32. As a departing point, the Chamber noted that it was not disputed between the Parties that
the Club authorised the Player to undergo surgery at Instituto Cugat and to continue his
treatment in Barcelona in relation to the two operations. However, the Parties disputed
whether the Club agreed or consented to bear the costs associated with the operations
and, if so, whether the Player is entitled to the reimbursement of those costs.
33. In particular, the DRC observed that, according to the Player, the Club had a general duty
to cover his medical treatment. Furthermore, the Player asserted that the evidence
submitted allegedly proved that the Club indeed accepted to bear these costs, which was
also confirmed by the fact that it had borne some of the costs related to the second injury.
pg. 8
REF. FPSD-15151
34. The Chamber also noted that, the Club categorically denied having accepted to bear the
costs of the first injury, and that the fact that it has a general duty to take responsibility of
its players does not imply that it has to pay for the costs of an injury if it is the player who
decides to seek treatment abroad. In addition, with regard to the second injury, the Club
sustained that, based on the Agreement, the Parties agreed that the Player would bear the
costs of accommodation and other expenses, while the Club would reimburse the costs of
the injury and its rehabilitation, which were duly paid.
35. In this context, the Chamber acknowledged that its task was to determine, based on the
arguments and evidence presented by the Parties, whether the Player was entitled to any
amounts as reimbursement.
36. First, the DRC recalled its well-established jurisprudence that clubs have a duty of care
towards the players they employ and that, as a principle, a club is responsible for the costs
associated with the medical treatment of an injury or illness sustained during the course
of the contract. In this regard, the DRC also emphasized that under normal circumstances
such medical treatment is to be undergone in the country of the club and thus does not
mean that a club would be obliged to pay the costs of surgery abroad should a player prefer
to follow a different treatment than the treatment proposed by the club.
37. Second, the DRC considered it appropriate to recall that every person has the right not to
be submitted to medical interventions in their body without consent and thus no player
can be forced to follow a specific treatment. While a player cannot require a club to bear
the expenses of any type of treatment, he has the right to determine the circumstances of
any medical intervention. In other words, a player shall be entitled to decide on his medical
care, provided that he bears the additional costs involved if he decides on a different course
of action than the club.
38. The above implies that players have the right to decide how and where to be treated, and
that clubs shall respect such decisions. However, this does not mean that clubs should
automatically bear the costs of their player’s treatments when they decide to be treated
abroad or by other doctors, as in the present case.
39. With the foregoing in mind, the Chamber referred to art. 13 par. 5 of the Procedural Rules
and concluded that it was for the Player to prove that the Club had accepted to bear the
costs related to both injuries, and proceeded to analyse the documentation on file. For the
sake of clarity, the Chamber addressed each injury separately.
i. First injury
40. With regard to the first injury, the Chamber noted that on 27 May 2022, Instituto Cugat
issued a medical report on the Player’s knee injury together with an estimate for his
treatment, which included not only the operation itself but also pre- and post-operative
care and treatment.
pg. 9
REF. FPSD-15151
41. The Chamber also noted that on 7 July 2022 the Club sent a letter to Instituto Cugat in which
it referred to both aforementioned documents and it also specifically referred the Player
to Dr Cugat’s services. The DRC found that the Club with its reply expressly agreed both to
the Player being treated at Instituto Cugat and to the proposed terms, i.e., the estimated
costs. This was also the player’s understanding of the club’s letter, which the Chamber
understands to have been drawn logically and good faith.
42. In view of the foregoing and while recalling a club’s general duty to provide medical care to
the players they employ, the Chamber determined that the Club, by referring the Player to
Instituto Cugat after having received and being aware of both the medical report and, more
importantly, the budget for this first operation, gave the Player the legitimate expectation
that the costs of this operation would be reimbursed by the Club. Indeed, while the Player
was referred to Dr Cugat by the Club, the latter did not put in place any further conditions,
as it did in the Agreement for the second injury.
43. Accordingly, the Chamber decided that the Player is entitled to the reimbursement of the
medical expenses incurred in connection with the first injury. In this regard, however, the
Chamber determined that the reimbursement should only cover the costs directly related
to the operation and its treatment, i.e., only those costs included in the budget of Instituto
Cugat (and accepted by the Club).
44. In the light of the above, and considering the receipts and proofs of payment submitted by
the Player, the DRC decided that the Club shall pay the Player EUR 33,655 as
reimbursement of the medical expenses incurred by the latter.
45. For the sake of completeness, the Chamber decided to reject the reimbursement of any
other concept or amount, such as accommodation, meals and/or any other sum not
directly related to the medical expenses previously budgeted and accepted.
46. Lastly, taking into consideration the Player’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the Player interest at the rate of 5% per
annum on the amount to be reimbursed as from the day following each of the payments
made by the Player according to the receipts submitted until the date of effective payment
as follows:
- EUR 24,695 as from 13 July 2022 until the date of effective payment;
- EUR 5,615 as from 17 August 2022 until the date of effective payment;
- EUR 795 as from 15 September 2022 until the date of effective payment;
- EUR 650 as from 23 October 2022 until the date of effective payment; and
- EUR 1,900 as from 11 November 2022 until the date of effective payment.
pg. 10
REF. FPSD-15151
ii. Second injury
47. With regard to the second operation, the Chamber noted that on 9 September 2023 the
Parties entered into an agreement in which they detailed the following:
“Surgical Expenses: The club acknowledges and accepts [the Player’s] decision to undergo
surgery with Dr. Ramón Cugat. We will cover the costs associated with his surgery, as
specified in the budget provided by the player from Instituto Cugat dated 17.08.2023.
Travel Costs: The club will also reimburse [the Player] for the expenses related to his travel
from Japan to Spain for the surgery and his return journey to Japan.
Rehabilitation Support: Following the information you provided, we understand that [the
Player] will be expected to remain in Spain for his recovery and rehabilitation up to a period
of 30 days in Institut Cugat. Therefore, our commitment extends to [the Player’s] initial
rehabilitation phase in Spain and we will reimburse him for rehabilitation costs for a
duration of up to 30 days following the surgery, also as specified in the budget provided by
the player from Institut Cugat dated 17.08.2023.
(…) It is essential to clarify that any additional expenses incurred by [the Player] during his
stay in Spain, such as accommodation and others, will be his personal responsibility”.
48. Based on the foregoing previsions, the Chamber found that the Parties had agreed, with
regard to the second injury, that the Club would only cover (a) injury expenses; (b) travel
expenses from Japan to Spain; and (c) rehabilitation costs for the first thirty days, while the
Player would be responsible to bear his costs for accommodation and others.
49. In view of the above, and considering that the Club has already reimbursed or paid the
costs of the injury as provided in the budget of Instituto Cugat, the Chamber concluded
that the reimbursement of expenses related to the second injury shall be rejected, since
they either relate to accommodation, nutrition and transportation in Spain (and are
therefore the Player’s responsibility as agreed), or are not foreseen in the mentioned
budget.
ii. Compliance with monetary decisions
50. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24 par.
1 and 2 of the Regulations, which stipulate that, with its decision, the pertinent FIFA
deciding body shall also rule on the consequences deriving from the failure of the
concerned party to pay the relevant amounts of outstanding remuneration and/or
compensation in due time.
pg. 11
REF. FPSD-15151
51. In this regard, the DRC highlighted that, against clubs, the consequence of the failure to
pay the relevant amounts in due time shall consist of a ban from registering any new
players, either nationally or internationally, up until the due amounts are paid. The overall
maximum duration of the registration ban shall be of up to three entire and consecutive
registration periods.
52. Therefore, bearing in mind the above, the DRC decided that the Respondent must pay the
full amount due (including all applicable interest) to the Claimant within 45 days of
notification of the decision, failing which, at the request of the Claimant, a ban from
registering any new players, either nationally or internationally, for the maximum duration
of three entire and consecutive registration periods shall become immediately effective on
the Respondent in accordance with art. 24 par. 2, 4, and 7 of the Regulations.
53. The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Account Registration Form, which is attached
to the present decision.
54. The DRC recalled that the above-mentioned ban will be lifted immediately and prior to its
complete serving upon payment of the due amounts, in accordance with art. 24 par. 8 of
the Regulations.
d. Costs
55. The Chamber referred to art. 25 par. 1 of the Procedural Rules, according to which
“Procedures are free of charge where at least one of the parties is a player, coach, football agent,
or match agent”. Accordingly, the Chamber decided that no procedural costs were to be
imposed on the Parties.
56. 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.
57. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the Parties.
pg. 12
REF. FPSD-15151
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Renato Augusto Santos Junior, is partially accepted.
2.
The Respondent, Shimizu S-Pulse, must pay to the Claimant the following amount(s):
EUR 33,655 as reimbursement plus 5% interest per annum as follows:
- 5% interest p.a. over the amount of EUR 24,695 as from 13 July 2022 until the date of
effective payment;
- 5% interest p.a. over the amount of EUR 5,615 as from 17 August 2022 until the date of
effective payment;
- 5% interest p.a. over the amount of EUR 795 as from 15 September 2022 until the date
of effective payment;
- 5% interest p.a. over the amount of EUR 650 as from 23 October 2022 until the date of
effective payment; and
- 5% interest p.a. over the amount of EUR 1,900 as from 11 November 2022 until the date
of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
5.
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.
6.
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.
pg. 13
REF. FPSD-15151
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 14
REF. FPSD-15151
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 – Legal & Compliance Division
396 Alhambra Circle, 6th floor, Coral Gables, Miami, Florida, USA 33134
legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 15