F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2016-2017) – fifa.com – atto non ufficiale – Decision 3 November 2016

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 3 November 2016,

in the following composition:

Thomas Grimm (Switzerland), Deputy Chairman

Alejandro Marón (Argentina), member

Mario Gallavotti (Italy), member

Carlos Puche (Colombia), member

Eirik Monsen (Norway), member

on the claim presented by the player,

Player A, from country B

as Claimant

against the club,

Club C, from country D

as Respondent

regarding an employment-related dispute arisen between the parties

I. Facts of the case

1. On 12 August 2014, the player A, of country B (hereinafter: player or Claimant), and the country D club, Cub C (hereinafter: club or Respondent), signed an employment contract (hereinafter: contract) valid as from 13 August 2014 until 30 June 2015.

2. According to art. 1 of the contract, the club undertook to pay the player a monthly remuneration in the amount of EUR 6,500.

3. According to the contract, the parties’ employment relationship shall inter alia be governed by the Professional Football Charter (hereinafter: Charter) and the country D labour code.

4. According to the player, on 11 August 2014, both parties signed an agreement stipulating that during the sporting season 2014/2015, he would receive an additional remuneration of EUR 500 per month in relation to his transportation costs (hereinafter: agreement).

5. On 10 November 2014, the club remitted a “first warning letter” to the player, reading that as a result of his absence at the club’s reserve team match on 8 November 2014, the player had breached disciplinary-related provisions of the club’s regulations and he was sanctioned with a fine.

6. On 2 January 2015, the club informed the player in writing that during a meeting scheduled on 9 January 2015 the parties would discuss the option to terminate the contract. The relevant letter further reads that such situation resulted from the player’s lifestyle and consequent health condition and that, as a conservatory measure, the player was suspended until a decision would be made following said meeting.

7. On 19 January 2015, the club informed the player in writing that in spite of the explanations given by the player on 9 January 2015, the club had decided to terminate the contract on the basis of the player’s lifestyle, which it considered incompatible with his activity as and obligations of professional football player.

8. On 18 February 2015, the player lodged a claim against the club before FIFA for unlawful termination of the contract and requested that the club be ordered to pay him the total amount of EUR 39,200, composed as follows:

 EUR 32,500 as compensation for breach of contract, corresponding to his contractual remuneration as from February until June 2015;

 EUR 2,500 as compensation based on his “travel allowance” for the months of February 2015 until June 2015 in accordance with the agreement;

 5% interest p.a. on the aforementioned amounts;

 EUR 4,200 as reimbursement of the “moving” costs the player referred to in his e-mail of 27 February 2015 sent to the club and which contained a request for the payment by the club of his “moving” costs;

 The reimbursement of his legal expenses by the club.

9. In this respect, the player submitted a copy of a statement issued by one of his ex-teammates mentioning that the player was receiving EUR 500 per month based on the agreement and that the club agreed to reimburse him EUR 4,200 in relation to his moving costs.

10. The player explained that in 2011 he went through a difficult time during which he was depressed and consumed alcohol. The player asserted that the club was aware of this prior to recruiting him and that at the time of the signature of the contract, he had a normal level of alcohol consumption for a football player.

11. In continuation, the player explained that due to the club’s poor performance during the winter part of the season, the club asked him and two other players to train and play for the club’s reserve team, which he refused based on his status of “established player”. The player asserted that he only participated in one training with the reserve team on 5 November 2014 and that, as he was not informed that he was in the list of players for the reserve team’s match on 8 November 2014, he missed that match. The player added that the club sanctioned him for this absence.

12. According to the player, the club was looking for reasons to sanction him again or to terminate the contract given that he was one of the best remunerated players. In this respect, the player held that, on 10 November 2014, the club’s coach asked him to undergo blood tests which he believed were linked to his tiredness. Furthermore, after he reported to the club doctor on 12 December 2014 that he had felt weak fearing heart problems, a second blood test was scheduled on 15 December 2014.

13. In this context, the player “considers the blood tests as intentional medical checks arranged with regard to the [club’s] purpose to prematurely terminate” the contract, whereas, for his part, he neither breached the contract nor did he consume alcohol before or during the trainings, the matches or the preparation phases. In this regard, the player submitted testimonies issued by six ex-teammates that read that the player was “always in good condition in the trainings and matches”.

14. On account of the above, the player held that the club terminated the contract without just cause.

15. In its reply, the club confirmed that it knew before it recruited the player that he had a depression and that as a result of having overdosed his medication, he had a cerebral haemorrhage in 2011. However, the club was confident that in a stable environment, the player would be able to get back to his former fitness level and to help the club to be promoted to the upper league.

16. According to the club, after a few months of training, the coach noticed that the player’s general fitness level had not improved and that the player had difficulties in recuperating from training exercises. Additionally, and according to three statements made by the player’s ex-teammates in addition to the club’s coach, the player sometimes smelled of alcohol and was not able to train properly.

17. In this context, the club decided to have a group of players, including the player, go through a medical test in order to identify the source of the player’s apparent health problems and to assure itself that the club’s trainings were not putting the player’s health at risk.

18. Until it received the test results, the club decided not to take risks with the player’s health and asked him to train and play with the reserve team.

19. According to the club, the results of the medical test indicated that the player was showing a high percentage of “CDT”, which reportedly corresponds to a situation of chronic alcoholism. In this respect, the club submitted the player’s medical analysis dated 12 November 2014, showing a measurement for CDT of 4.8%, with the norm being below 1.7%.

20. The club held that its doctor informed the player that he had to stop consuming alcohol and that a new test would be executed in a month to follow-up on his abstinence.

21. The club explained that, on 12 December 2014, the player informed the club’s doctor that he felt faint. The results of the new medical tests thus instigated by the club showed that the player’s CDT percentage had increased up to 7.3%. In this respect, the club submitted copies of the laboratory results of 17 December 2014 and of the club doctor’s statement of 14 January 2015.

22. In view of the aforementioned, the club considered that the player was in breach of its instructions and of his obligations as a professional player regarding his lifestyle and decided to organise a meeting with the player on 9 January 2015. In addition, based on the doctor’s report that the player’s condition was incompatible with a professional practice of football, the club protected the player’s health and suspended him as a conservatory measure. Given the incompatibility between the player’s health condition resulting from his lifestyle and his contractual obligations, the club decided to terminate the contract with immediate effect.

23. In the club’s opinion, it correctly analysed the situation as it considered that the player’s behaviour and his condition rendered the continuation of the execution of the contract impossible and it made a correct application of the various regulations applicable to the parties’ contract, i.e. the aforementioned Charter and the club’s internal regulations, in particular its articles 16 and 32.

24. Additionally, the club held that precedents in country D jurisprudence or from the Court of Arbitration for Sport (CAS) confirm the lawfulness of the club’s standpoint that the circumstances at hand gave it just cause to terminate the contract. In particular, the club referred to various decisions inter alia related to alcoholism/drugs consumption or to a player not making his best effort to maintain his fitness level.

25. Furthermore, the club stressed that it tried to deal with the player’s situation prior to terminating the contract as it inter alia asked him to follow the reserve team’s less intensive trainings, it asked the player to stop drinking and warned him that further medical tests would be realised. Yet, the player did not stop drinking and thus refused to comply with the club’s instructions and regulations. In this respect, the club submitted a copy of the articles of the club’s aforementioned internal regulations related to lifestyle and alcohol consumption, along with the document the player signed to attest he was aware of the contents of said rules.

26. In conclusion, the club stressed that contrary to the player’s allegations, his dismissal is neither due to his sporting performances nor to the fact that his remuneration was one of the highest amongst the players composing the club’s squad. In this respect, the club stressed that the contract contained an extension clause also stipulating a raise of the player’s wage should the club have been promoted to the upper division.

27. On account of the aforementioned elements, the club concluded that the player’s arguments are unjustified and that his claim has to be rejected.

28. The player informed FIFA that he remained unemployed until 30 June 2015 and that he signed an employment contract with the Club X, from country X on 4 May 2015, valid as from 1 July 2015.

29. Both prior to and after the closure of the investigation the player submitted unsolicited comments and documents.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) analysed whether it was competent to deal with the matter at hand. In this respect, it took note that the present matter was submitted to FIFA on 18 February 2015. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2014; hereinafter: Procedural Rules) are 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 2016) 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 B player and a country D club.

3. Furthermore, 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 par. 2 of the Regulations on the Status and Transfer of Players (edition 2016), and considering that the present claim was lodged on 18 February 2015, the 2014 edition of said regulations (hereinafter: 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 DRC started by acknowledging all the above-mentioned 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. In this context, the Chamber concurred that the Claimant’s unsolicited submissions received after the statement of claim was forwarded to the Respondent shall not be taken into account on the basis of art. 9 of the Procedural Rules.

6. In continuation, the Chamber acknowledged that, on 12 August 2014, the club and the player concluded an employment contract valid as from 13 August 2014 until 30 June 2015.

7. The DRC further observed that, on 19 January 2015, the club terminated the aforementioned contract in writing on the basis of the player’s lifestyle, which it considered incompatible with his activity as and obligations of a professional football player.

8. The DRC noted that in his statement of claim the Claimant held that the Respondent relied on a false pretext to justify its decision to terminate the employment contract. Consequently, the Claimant requested that the Respondent be ordered to pay him inter alia a compensation for the alleged unjustified termination of the contract based on the residual value of the employment contract.

9. The DRC took into account that the club, on the other hand, inter alia held that the termination of the employment contract was justified by valid grounds.

10. In particular, the Chamber took note of the Respondent’s position that, as a result of the Claimant’s lifestyle and consequent health condition, it ultimately considered that the continuation of the parties’ contractual relationship was impossible.

11. Considering the above-described conflicting position of the parties, the Chamber highlighted that the underlying issue in this dispute was to determine as to whether the employment contract had been terminated by the Respondent with or without just cause and, subsequently, to decide on the consequences thereof.

12. Having stated the above, the Chamber turned its attention to the circumstances having led to the Respondent’s early termination of the employment contract concluded between the parties.

13. The members of the Chamber noted that according to the Respondent, the player underwent medical tests following reports and statements made by its coach and other players regarding problematical signs in the Claimant’s fitness state, including reports on alcohol consumption, and that prior to receiving the test results, the Respondent had asked the Claimant to train and play with the reserve team in order not to take risks with his health.

14. In continuation, the members of the Chamber referred to the first medical analysis dated 12 November 2014, as well as to the study made thereof by the Respondent’s doctor, according to whom his concerns on the Claimant’s state of health were consistent with the result of said medical analysis, in the sense that the Claimant’s blood analysis at hand was showing a high percentage of “CDT”. The Chamber took into account that the Respondent submitted the player’s medical analysis dated 12 November 2014, showing a measurement for CDT of 4.8%, with the norm being below 1.7%. According to the Respondent, such percentage of CDT corresponds to a situation of alcoholism.

15. In this respect, the Chamber further took note of the undisputed fact that the Respondent’s doctor advised the Claimant to abstain from consuming alcohol and that a follow-up blood analysis would be made a month later.

16. Furthermore, the Chamber noted that a second medical test was made in December 2014, the result of which showed an increase in the percentage of CDT in the Claimant’s blood. In this regard, the Chamber took note of the subsequent opinion issued by the Respondent’s doctor, namely that the Claimant’s state of health was incompatible with a professional practice of football.

17. The Chamber took into account that according to the Respondent, the result of the medical tests demonstrates that the Claimant was in breach of his contractual obligations and of the Respondent’s instructions regarding his lifestyle. In addition, the members of the Chamber noted that in order to protect the Claimant’s health, the Respondent had suspended the Claimant as a conservatory measure.

18. As regards this course of events, the Chamber further noted that according to the Claimant, who considered that he was put in the reserve team due to the Respondent’s alleged poor performance, the Respondent arranged for the aforementioned medical tests with the purpose to prematurely terminate the employment contract. In this regard, the members of the Chamber wished to stress that the Claimant had not been able to corroborate these allegations with documentary evidence.

19. As regards the Respondent’s position with respect to the Claimant’s state of health and lifestyle, in particular the consumption of alcohol, the Chamber took into account that according to the Claimant, he had a normal consumption of alcohol for a football player.

20. In this regard, the Chamber also noted that, for his part, the Claimant had neither contended the relevance of the “CDT” measurement, nor the actual results shown by the two aforementioned medical tests.

21. Given the aforementioned elements, the Chamber concluded that the Claimant had not followed the Respondent’s instructions following the result of the first medical test.

22. In continuation, the Chamber wished to highlight that in addition to the Respondent’s rules of conduct that the Claimant agreed to comply with, it is also the general responsibility of a football player to take care of his own fitness condition, to adapt his lifestyle to the need of his activity and possibly to seek help in order for the player to remain able to perform his services in a way that is compatible with such activity, especially within a professional framework.

23. The members of the Chamber deemed it important to highlight that the Respondent, for its part, had shown diligence in its dealing with the situation by undertaking actions not only to monitor, but to also preserve and to contribute to improve the Claimant’s health state, which was linked to the Claimant’s level of alcohol consumption.

24. On account of the aforementioned and in light of the Claimant’s incompliance with his contractual responsibility and obligations as a professional football player, the Chamber decided that the Respondent has terminated the employment contract with just cause.

25. Consequently, the Chamber decided that the Claimant’s claim for compensation based on the Respondent’s alleged breach of contract of contract without just cause had to be rejected.

26. It is highlighted that this decision was passed with the casting vote of the Deputy Chairman of this Chamber in favour of the rejection of the Claimant’s claim (cf. art. 14 par. 1 of the Procedural Rules).

27. In continuation, and with regard to the Claimant’s claim for reimbursement by the Respondent of his moving costs in the amount of EUR 4,200, the Chamber referred to 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.

28. Applying the aforementioned rule to the case at hand, the Chamber concluded that the Claimant had not presented credible and conclusive evidence in support of his allegation that that Respondent was liable to cover his moving expenses in the amount of EUR 4,200 and, hence, decided to reject such claim.

29. As regards the Claimant’s claim for reimbursement by the Respondent of his legal expenses, the Chamber referred to art. 18 par. 4 of the Procedural Rules as well as to its long-standing and well-established jurisprudence, in accordance with which no procedural compensation shall be awarded in proceedings in front of the Dispute Resolution Chamber. Consequently, the Chamber decided to reject the Claimant’s request relating to legal expenses.

30. The DRC concluded its deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected.

III. Decision of the Dispute Resolution Chamber

The claim of the Claimant, Player A, is rejected

*****

Note relating to the motivated decision (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

Avenue de Beaumont 2

1012 Lausanne

Switzerland

Tel: +41 21 613 50 00

Fax: +41 21 613 50 01

e-mail: info@tas-cas.org

For the Dispute Resolution Chamber:

Marco Villiger

Deputy Secretary General

Encl. CAS directives