F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2018-2019) – fifa.com – atto non ufficiale – Decision 1 February 2019

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 1 February 2019,

in the following composition:

Geoff Thompson (England), Chairman

Roy Vermeer (the Netherlands), member

Johan van Gaalen (South Africa), member

Stefano La Porta (Italy), member

Pavel Pivovarov (Russia), member

on the claim presented by the player,

Player A, Country B

as Claimant

against the club,

Club C, Country D

as Respondent

regarding an employment-related dispute

arisen between the parties

I. Facts of the case

1. On 31 March 2016, the player of Country B, Player A (hereinafter: the Claimant), and the club of Country D, Club C (hereinafter: the Respondent), signed a “temporary contract of employment” (hereinafter: the employment contract) valid as from the date of signature until 31 July 2016.

2. According to art. 4.1. of the employment contract, the Claimant was entitled to a monthly salary of 20,000 in the currency of Country D to be paid on the 25th day of each month.

3. According to art. 4.10 of the employment contract, “the [Respondent] provides free medical care and other necessary and appropriate treatment for injuries sustained by [the Claimant] during participation in activities based on the contract”. According to the same provision, “The [Claimant] has an obligation to be treated by a doctor / physiotherapist / chiropractor designed by [the Respondent], providing [the Respondent] pays all expenses for the treatment […]”.

4. Moreover, the above-mentioned provision established that “regardless of the provision of the preceding paragraph, [the Claimant] may have his injuries examined by a doctor / physiotherapist / chiropractor, providing the [Claimant] covers the consultation himself” and “[the Respondent] shall be informed of such consultation”.

5. By e-mails dated 15 and 30 May 2018, the Claimant put the Respondent in default of payment of his medical costs in the total amount of EUR 9,723.06 and enquired about “the [Respondent]’s position on the [Claimant]’s claim for damages as a result of the [Respondent]’s negligence”.

6. On 12 June 2018, the Claimant lodged a claim against the Respondent in front of FIFA, requesting to be awarded the following:

a. EUR 9,723 for “medical expenses incurred”;

b. “Compensation and/or aggravated damages up to € 300,000 […] for the [Respondent’s] gross negligence which resulted to the [Claimant’s] permanent incapacity to play professional football”;

c. “Additional compensation up to six months’ salaries […] based on the positive interest principle of Swiss Law and/or aggravated damages”;

d. “Additional compensation based on the objective criteria of the case and the specificity of sport […]”.

7. With his claim, the Claimant requested “interest on all amounts” as of 12 June 2016.

8. More in particular, the Claimant explained that, on 12 June 2016, during an official game played against the Club E, he sustained an injury the consequences of which, due to the alleged negligence of the Respondent, resulted in a permanent incapacity to play football and for which he deemed he had to be compensated adequately.

9. In this respect, the Claimant argued that, following the aforementioned occurrence, he had been examined only by the Respondent’s physiotherapist, who allegedly deemed that the injury was “nothing serious”. The Claimant further recalled that, on 22 June 2016, he suffered a relapse during a training and that, since then, he felt “terrible pain”.

10. In continuation, the Claimant recalled that, after having put pressure on the Respondent, the latter “accepted to arrange for an ultrasound and an x-ray”. In this respect, the Claimant maintained that the Respondent’s medical team had wrongly evaluated the results of the tests, deeming that they did not reveal any injury. The Claimant further explained that he had finally managed to convince the Respondent to let him undergo an MRI scan, which allegedly revealed a serious injury to his left ankle.

11. Moreover, according to the Claimant, the Respondent “recognised its fault not to send [him] for the proper medical examinations immediately after the injury and apologised to him”. The Claimant further recalled that, in this context, the Respondent’s doctor had advised him to wear a cast.

12. The Claimant explained that, at a later stage and due to the continuous pain he was suffering, he underwent another medical examination in Country F. The Claimant recalled that, following the MRI scan he undertook in Country F, he decided to seek medical advice in Country G, where his doctor suggested to undergo surgery. Moreover, according to the Claimant, this last specialist pointed out that he should have been properly treated soon after the injury. In this respect, the player submitted a signed medical report dated 31 July 2018 from Prof J, concluding that the Claimant “remains symptomatic which prevents him from returning back to play”.

13. However, the Claimant maintained that he indeed underwent surgery but that it did not solve his problem and, consequently, he had to stop playing professional football. According to the Claimant, the Respondent’s alleged negligence was “the only reason” for his permanent incapacity.

14. In light of the above, the Claimant argued that he had to be: (i) reimbursed for the medical expenses incurred in the total amount of EUR 9,723, i.e. EUR 214 for the MRI in Country F, EUR 9,000 for the surgery in Country G and further EUR 509 as well as (ii) compensated for the damages suffered.

15. In its reply, the Respondent asked that the Claimant’s claim be rejected and that it be reimbursed legal expenses in the amount of CHF 2,000.

16. The Respondent firstly pointed out that, prior to signing the short term contract with the Claimant, the latter had been examined by the Respondent’s medical team as well as the Respondent’s physiotherapist and by doctors from an “external clinic”. According to the Respondent, said examinations revealed that the Claimant had previously sustained a number of sprains to his left ankle, i.e. the one injured on 12 June 2016. In this respect, the Respondent submitted an unsigned and undated document from Mr H, allegedly the Respondent’s physical therapist, who declared, presumably prior to the signing of the contract, that the Claimant “has previously experienced ankle sprains, but this should be no problem at present time”. The Respondent also submitted a document dated 31 March 2016, whereby two doctors of the “medical facility L” declared that the Claimant “presents with no findings indicating that he cannot participate in play”, although revealing a “severe ankle sprain left side ten years ago – minor sprains since – uses ankle support both ankles”.

17. The Respondent further recalled that, soon after the injury of 12 June 2016, the Claimant had been examined by the head of the Respondent’s medical team, Mr M, and the Respondent’s physiotherapist and no serious injury was reported. The Respondent also evoked that the Claimant continued to train and, upon demand, played the last 14 minutes in the match of 19 June 2016 and a few minutes in the ensuing match of 26 June 2016 and that, after he complained about his pain, “X-ray and MRI was taken the next day”.

18. Moreover, the Respondent denied that Mr M ever advised the Claimant to wear a cast and, according to the Respondent, the Claimant never wore a cast as long as he was with the Respondent.

19. In continuation, the Respondent argued that neither the x-ray nor the MRI revealed any “signs of a serious injury”. The Respondent added that, based on the evidence, its medical team decided to continue applying a conservative treatment with physiotherapy. Moreover, the Respondent recalled that Mr M concluded, after having re-examined the x-ray of 26 June 2016, that the “findings are definitely posttraumatic and caused by old trauma and is not at all relevant to his anklesprain june 12th 2016”. In this regard, the Respondent submitted a report from Mr M, dated 6 September 2018, in which he adds that “in [his] opinion ligament reconstruction in this quite seriously damaged ankle is hardly indicated” and that he “strongly disagree[d] with [his] colleague of Country G stating that [the Claimant’s] ankle injury should have been operated shortly after june 12th 2016”.

20. The Respondent further explained that, after 26 June 2016, the Claimant decided to go to Country F and consequently the Respondent was not in a position to further treat his injury for the last month of the contractual duration of their employment relationship.

21. Moreover, the Respondent claimed that it could not be held responsible for the medical treatment that the Claimant underwent after the expiry of the contract, i.e. 31 July 2016.

22. Additionally, the Respondent denied any responsibility concerning the permanent incapacity of the Claimant and the related compensation claimed, in light of the following considerations: a. the Respondent should not be held responsible for complications related to injuries sustained by the Claimant before joining the Respondent, as indicated by Mr M in his medical opinion; b. there are no indications that the Claimant could have been able to continue his career had the injury been treated differently while he was at the Respondent; c. the Respondent had provided the Claimant with appropriate medical treatment while in Country D, in accordance with its contractual obligations.

23. In his replica, the Claimant reiterated his position as to the facts of the case but partially amended his claim.

24. First of all, he confirmed having been examined prior to the signing of the contract with the Respondent. However, according to him, he was “in a perfect condition”, so much that he had played 17 matches without facing “any medical, or other, problem until” 12 June 2016.

25. Moreover, the Claimant denied the Respondent’s allegation that he had undergone an MRI on 27 June 2016. According to the Claimant, after he had suffered a relapse on 22 June 2016, the Respondent sent him only for an ultrasound and x-rays but not an MRI until July 2016.

26. In continuation, the Claimant explained that, after the Respondent’s reply in the present proceedings, he obtained at his own expenses a copy of the MRI report of 8 July 2016, according to which he had suffered a “complete rupture of his ligament” and that the Respondent had intentionally concealed it. In this respect, the Claimant submitted a copy of the diagnosis from the MRI of a “complete disruption of the anterior talofibular ligament”.

27. Moreover, the Claimant held that the Respondent’s poor treatment of his injury was confirmed by the opinion of the specialist he contacted in Country F after having obtained said MRI. In this regard, prior to the expiry of the deadline to provide his submission, the Claimant produced an unsigned and undated copy of Mr N’ opinion according to which the “lack of initial treatment contributed to the development of chronic disability” since “to resolve the problem was necessary recommended surgery repair”. The Claimant submitted the dated and signed version of said opinion after the expiry of the deadline.

28. The Claimant further claimed that the only treatment he was given while at the Respondent was to take painkillers and he was never prescribed any physiotherapy.

29. Moreover, the Claimant rebutted the Respondent’s argument concerning the impossibility to keep treating him until the end of the contractual relationship, alleging that he left Country D only on 22 July 2016. The Claimant further recalled that the Respondent had agreed to cover his flight ticket back to Country F but never complied.

30. Lastly, the Claimant partially amended the financial requests contained in his claim. With his replica, in fact, the Claimant requested “a compensation of at least € 250,000” and, with regards to the reimbursement of costs, on top of EUR 9,723 for medical expenses, he demanded to be awarded EUR 199.24 for the costs he allegedly incurred to obtain the MRI from Country D and translate it, plus EUR 245.86 for the flight ticket from Country D to Country F.

31. In its duplica, the Respondent preliminarily contested the admissibility of the Claimant’s late submission. As to the merits, the Respondent reiterated its position. With regards to the request of reimbursement of the flight ticket, the Respondent argued that it “cannot recollect having agreed to pay for these tickets” and the Claimant “has not proved that such an agreement has been made”.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter also referred as DRC or Chamber) analysed whether it was competent to deal with the case at hand. In this respect, the Chamber took note that the present matter was submitted to FIFA on 12 June 2018. Consequently, the DRC concluded that the 2018 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the Procedural Rules).

2. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2018), the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns a dispute with an international dimension between a player of Country B and a club of Country D in relation to an employment relationship between the parties.

3. Subsequently, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, it confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition June 2018), and considering that the present claim was lodged on 12 June 2018, the June 2018 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

4. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. In this respect, the Chamber started by acknowledging all the 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. Having said that, the members of the Chamber acknowledged that, on 31 March 2016, the parties had concluded an employment contract valid as from the date of signature until 31 July 2016, in accordance with which the Respondent had undertaken to pay to the Claimant a monthly salary of 20,000 in the currency of Country D.

6. The DRC further pointed out that the employment contract set forth the obligation for the Respondent to provide medical care in favour of the Claimant in case of injuries sustained due to “participation in activities based on the contract”. Moreover, the members of the DRC observed that, according to the employment contract, the Claimant had the “obligation to be treated” by a physician “designed by the [Respondent]”. In this case – the DRC noted – the Respondent would cover the related expenses. The DRC further acknowledged that the employment contract granted the Claimant the possibility to choose a medical practitioner of his own, provided that the Respondent be informed of such occurrence and that the Claimant be responsible for the related costs.

7. In continuation, the DRC observed that it remained uncontested that the Claimant sustained an injury to his ankle during an official match played on 12 June 2016. The members of the Chamber further took into account that the Claimant appears to have remained unemployed since the expiry of the contract with the club which had loaned him to the Respondent. Consequently, the DRC found it possible to assume that the Claimant’s career indeed came to an end shortly after the abovementioned traumatic event.

8. That said, the members of the Chamber took note that the Claimant held that, due to the Respondent’s negligence, the consequences of said injury ultimately resulted in his permanent incapacity to play football and that he should be adequately compensated. More in particular, the members of the DRC noted, from the entirety of the Claimant’s submissions, that the latter substantially deemed that the Respondent did not intervene on his injury in a timely manner and that its medical staff was eventually wrong when it assessed it, deciding to adopt a conservative treatment rather than surgery.

9. On the other hand, the DRC noted that the Respondent, for its part, essentially claimed that it had done what it was contractually required to do for the player, i.e. provide medical assistance in relation to an injury sustained during an official game, and that it could not be held responsible for the Claimant’s permanent incapacity to play football, also due to the fact that it could not be proven that a different treatment would have avoided such occurrence.

10. In light of the above, the members of the Chamber observed that the dispute revolved around the question as to whether the Respondent had fulfilled its contractual obligations to put in place “medical care and other necessary and appropriate treatment” in favour of the Claimant in relation to the injury sustained.

11. Having said that, the members of the Chamber deemed it important to point out from the outset that it remained essentially uncontested that, after the recalled traumatic occurrence, the Claimant had overall received from the Respondent: i. a medical examination immediately post injury; ii. an ultrasound and an x-ray exam within a couple of weeks at most; iii. an MRI exam shortly afterwards.

12. That being established, the DRC recalled that the parties agreed that the Respondent’s medical team reckoned, after the first examination carried out in the immediacy of the sprain, that the Claimant had not reported any serious damage. However, according to the Claimant, said evaluation was wrong.

13. In this context, the Chamber recalled that the Claimant maintained that the specialist who visited him in Country G, Prof J, deemed that he should have been properly treated soon after the injury and that, in support of his assertion, the Claimant submitted a medical report dated 31 July 2018 from the aforementioned specialist. However, from the analysis of said document, the members of the Chamber were not persuaded that indeed Prof J declared himself that the Claimant’s injury had been poorly treated. The Chamber observed, in fact, that the invoked statement is to be found at the beginning of the report, where Prof J is rather describing the Claimant’s own recollection of the events. The only conclusion that can be undoubtedly drawn from said opinion, the members of the DRC deemed, is that – at the time it was given – the Claimant was prevented from returning to his football activity because of his current physical condition (in the words of Prof J, he “remains symptomatic which prevents him from returning back to play”).

14. In continuation, the members of the Chamber brought into account that the Claimant submitted the assessment of a further specialist, Mr N, according to whom the “lack of initial treatment contributed to the development of chronic disability”. In this respect, the DRC had to preliminarily remark the fact that the signed and dated version of said opinion was submitted by the Claimant only after the expiry of the deadline to provide his submission. Consequently, in accordance with art. 9 par. 3 of the Procedural Rules, pursuant to which submissions received outside of the time limit shall not be taken into account, the relevant version of said opinion should not be considered for the purposes of this decision.

15. However, even taking Mr N’ conclusion into account, the members of the DRC were eager to underline that, in the opinion of the Respondent’s doctor, Mr M, “ligament reconstruction in this quite seriously damaged ankle is hardly indicated”. In other words, the members of the Chamber pointed out the fact that two practitioners, whose judgement needs to be given equal medical authority, entirely disagreed on the most appropriate way to treat the same injury.

16. Moreover, the DRC was mindful that the Claimant’s physical conditions appeared to be partially impaired already at the moment he signed his contract with the Respondent, when he undertook the ritual medical exams. In this respect, the members of the Chamber referred to the document provided by the Respondent dated 31 March 2016, i.e. the day on which the employment contract was signed (cf. supra point I./16). The DRC recalled that, in that context, the doctors who visited the Claimant considered that the latter was revealing a severe sprain to his left ankle sustained 10 years earlier and that he was using “ankle support”, although – according to them – there was no reason to think he could not play football at that time.

17. From all the above, it followed, in the opinion of the members of the DRC, that a direct causal link between the assessment of the injury conducted by the Respondent’s medical team and the permanent incapacity that the Claimant eventually suffered could not be found.

18. The above being established, the DRC thought it worthwhile to briefly address the Claimant’s allegation that the Respondent “recognised its fault not to send [him] for the proper medical examinations immediately after the injury and apologised to him” and that he was suggested by the Respondent’s doctor to wear a cast (cf., supra, point I./11). In this respect, the members of the Chamber stressed the need to disregard such statement in their line of reasoning since, bearing in mind art. 12 par. 3 of the Procedural Rules, in accordance with which any party claiming a right on the basis of an alleged fact shall carry the burden of proof, the Claimant had failed to produce any evidence in support of his statement.

19. For the sake of argument, the members of the DRC deemed to add one more consideration, although not crucial for the decision, in relation to the Claimant’s allegations. It was noticed, in fact, that – on the one hand – the Claimant argued that the Respondent’s medical team had grossly overlooked the severity of his injury. On the other hand, however, he waited a few months before undergoing further exams after those undertaken in Country D at the facilities indicated by the Respondent, as the medical receipts submitted showed (cf. below point II./22). In this context, the DRC was also mindful that the Claimant had played, although only a few minutes, in two official games which followed his injury, on 19 and 26 June 2016.

20. In respect of the foregoing, the members of the Chamber had to conclude that the Claimant did not prove beyond any reasonable doubt that, had the Respondent’s medical staff adopted a different approach in treating his injury, he would have not suffered a permanent incapacity as a consequence thereof.

21. However, the Chamber wished to highlight that – even assuming the possibility to establish on the basis of the evidence produced that a better treatment was possible at the time of the injury – the Respondent could not be held responsible of any contractual breach in the matter at hand. In the opinion of the members of the DRC, the facts of the case showcased that the Respondent abided by the provisions of the employment contract, which imposed on the latter an obligation to provide “free medical care and other necessary and appropriate treatment for injuries sustained by [the Claimant] during participation in activities based on the contract”. In other words, regardless of whether, ex post, it could be somehow demonstrated the appropriateness of a different medical treatment, the DRC considered that the Respondent had acted in respect of its obligations, providing the Claimant with the necessary medical care after the injury.

22. In continuation, the Chamber turned its attention to the Claimant’s request for reimbursement of the medical costs incurred. In this respect, the members of the DRC took into account the medical receipts submitted by the Claimant and noted that they referred to services rendered in December 2016, February 2017 and August 2017. Bearing in mind that the employment contract with the Respondent expired on 31 July 2016, the DRC decided to reject the Claimant’s request in this respect, due to the lack of any contractual basis. For the sake of completeness, the members of the Chamber observed that, pursuant to the agreed contractual provision, the Claimant was not entitled anyway to request reimbursement for medical costs incurred with physicians at medical facilities of his own choice.

23. By the same token, the members of the Chamber decided to reject the Claimant’s request for reimbursement of the flight tickets due to the lack of contractual grounds, as the employment contract does not contain any provision concerning the granting or the reimbursement of flight tickets.

24. All the above led the Dispute Resolution Chamber to conclude that the claim of the Claimant has to be rejected.

III. Decision of the Dispute Resolution Chamber

1. 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 (CAS)

Avenue de Beaumont 2

CH-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:

Emilio García Silvero

Chief Legal Officer

Encl.: CAS directives