F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2020-2021) – fifa.com – atto non ufficiale – Decision 13 January 2021

Decision of the

Dispute Resolution Chamber

Passed on 13 January 2021,

regarding an employment-related dispute concerning the player A

BY:

Jon Newman, (USA), DRC Judge

CLAIMANT:

A, Country A

Represented by Mr.

RESPONDENT:

Club B, Country B

Represented by Mr.

I. FACTS OF THE CASE

1. On 15 February 2018, the Country A player, A (hereinafter: the Claimant or player), the Country A club, C, and the Country B club, B (hereinafter: the Respondent or club) concluded a loan agreement whereby the player was loaned from C to the club from 15 February 2018 until 1 January 2019.

2. The parties concluded an employment contract (hereinafter: the contract) valid as from 15 February 2018 until 1 January 2019, according to which the player was entitled to a monthly salary of USD 18,000.

3. Art. 14 of the contract relates to illness and injury:

“1. Player shall promptly announce any illness or injury and obey Company’s instructions.

2. Company shall cover overseas accident travel insurance for the Player, Player’s spouse and children secured during their stay in Country B, from first day of entering until leaving from Country B, at the expense of Company. However, the insurance mentioned above shall not apply to pregnancy and dental treatment, and illness or injury or after effect existing since prior to the conclusion of the Contract.

3. In the case that the Player temporally becomes incapable of playing owing to illness or injury directly originated from execution of this Contract (hereinafter called “Public Injury”), Company shall pay Player’s base salary stipulated in Article 2, Clause 3 during Player’s incapability. However, if this Contract is expired or terminated, the payment duty becomes invalid at the point of time.

4. Company shall, at its cost, provide the Player with life insurance specified by the League which covers death or after effects of an illness or an injury of the Player from the first day of entering Country B until the end of the Service Period as described in Article 1 (Amount of compensation: XXX 60,000,000)”

4. The loan agreement contains the following clauses in relation to injury:

“Art. 4.1

B undertakes to subscribe all necessary insurances, covering any and all damages arising out of an injury, accident inside or outside the professional activities, illness, natural or accidental death, permanent disability, of the PLAYER during the period of the Loan. The total amount insured shall correspond to USD 800,000, and C shall be named the beneficiary of the said insurance.

Art. 10.1

At the end of the loan period, B assumes the responsibility for returning the PLAYER back to C in perfectly healthy and physical conditions”.

5. The player sustained an injury on his right knee while under contract with the club.

6. Following said injury, on 1 August 2018, the player underwent surgery for the reconstruction of the anterior cruciate ligament with patellar tendon.

7. Thereafter, the club authorised the player to travel to his home country, A, in order to undergo the surgery and rehabilitation.

II. PROCEEDINGS BEFORE FIFA

8. On 2 September 2020, the Claimant filed the claim at hand before FIFA for outstanding remuneration, reimbursement of medical costs and compensation for breach of contract. A summary of the position of the parties is detailed below.

a. The claim of the Claimant

9. According to the Claimant, he had to bear, from his own personal savings, the entirety of the expenses related to (i) medical fees of the operating doctor and his staff; (ii) hospitalization after the surgery; (iii) exams; (v) doctor’s appointments, amongst other costs strictly related to his recovery, in the total amount of XXX 61,300.80.

10. As proof of the costs incurred after the surgery, the player submitted the following receipts (cf. exhibit 3 of the claim, all amounts are in XXX :

− Invoice issued on 8 August 2018 by the Municipal Secretariat of Treasury of the City Government of city Country A for an amount of XXX 18,035.77,

− Invoice issued on 8 August 2018 by the Municipal Secretariat of Treasury of the City Government of city Country A for an amount of XXX 3,252.09,

− Invoice issued on 8 August 2018 by the Municipal Secretariat of Treasury of the City Government of city Country A for an amount of XXX 212.14,

− Invoice issued on 9 August 2018 by the Municipal Secretariat of Treasury of the City Government of city Country A for an amount of XXX 38,500.

11. The Claimant insisted that the Respondent should reimburse him from such costs and, after several conversations and attempts to solve the financial pendency, on 22 November 2018, the club transferred him the amount of USD 14,741, which corresponded, on such date, to XXX 56,148.46.

12. According to the player, regardless of the exact dates on which he made the payments concerning his medical fees, exams and ambulatory expenses, the event which gave rise to the present dispute is the partial reimbursement of the mentioned expenses, which occurred on 22 November 2018.

13. The player deems that the club unjustifiably retained the sum of XXX 5,152.34 from such reimbursement, which corresponded to approximately USD 1,355.87.

14. For several months the player tried to enter into an agreement with the club in respect of the overdue amount. On 16 July 2020, the player formally notified the club to, amongst other requests, pay the amount of XXX 5,152.34.

15. In its letter dated 17 July 2020, the club informed the player that it had requested its insurance company to reimburse the totality of the amount spent by the player but it had only received the amount of USD 14,741.

16. Furthermore, the player underlined that he was only released by the doctor to resume the practice of any professional football-related activities on 20 May 2019, almost five months after the expiry of the contract.

17. The player argues that as from the moment he was injured, he was absolutely abandoned and neglected by the club.

18. After the expiry of the contract, the Claimant had to keep bearing the costs of the recovery process on his own. The expenses the player had to cover from 1 January 2019, date on which the contract expired, to 20 May 2019, totalized XXX 26,850, which corresponded to approximately USD 7,065.

19. In the Claimant’s opinion, considering that his injury is unquestionably and directly linked to the performance of the contract, the burden to take responsibility for the costs related to such injury is exclusively on the Respondent, regardless of the moment these costs were incurred.

20. The player highlighted that he had intended to extend the contract at least until he was able to practice professional football again. Indeed, given that he had sustained an injury while defending the colours of the club, the player deemed this to be a fair solution, considering he was prevented from practicing his profession for several months, which caused him not only physical and emotional distress, but put him in clear disadvantage in terms of competitiveness in the football market.

21. The club, however, ignored the player’s attempts to start negotiations in this respect.

22. After the expiry of the contract as well as the loan, the player returned to C, a club in the third Country A division. He then received a salary of only XXX 5,000 a month, which corresponds to USD 936.32.

23. The player experienced some difficulties to be reinserted in the football market, as he had to struggle to find a club that would pay him a better salary after long months of harsh recovery, and without any in-game rhythm to be part of a competitive roster.

24. Eventually, the player found a slightly better opportunity with the club D, which he joined on 25 June 2019, although he still earned the same salary of XXX 5,000.

25. The contract with D was terminated on 24 December 2019 and, shortly after, the player joined E, with the same salary of XXX 5,000.

26. In conclusion, the player claims that the injury, the club’s refusal to extend the contract and the club’s negligence to pay the costs of the player’s rehabilitation process have harmed his career beyond what is reasonable.

27. For this reason, the player requests the payment of a compensation corresponding to USD 90,000, which corresponds to the exact amount of the 5 salaries the player would be entitled to receive if the contract was to be renewed until his full recovery, i.e. between January and May 2019.

28. In this regard, the player referred to art. 14 par. 4 of the contract and deems that the sentence “However, the insurance mentioned above shall not apply to pregnancy and dental treatment, and illness or injury or after effect existing since prior to the conclusion of the Contract” is invalid as it is an endeavour to circumvent the player’s right to be compensated, in clear breach of basic universal legal principles.

29. Equally, the Claimant referred to art. 10.1. of the loan agreement and concluded that the Respondent shall bear the full responsibility of the costs and damage related to his injury while playing for them. The Claimant states in this regard that “unfortunately, the Loan Agreement did not establish a compensation to be paid by the Respondent in virtue of the flagrant breach of said disposition contained in Article 10.1, but that does not mitigate the Claimant’s right to seek compensation”.

30. Finally, the Claimant held that he did not receive his entire salary for the month of December 2018. Indeed, the Respondent unlawfully discounted the amount of USD 9,000. In this regard, the Claimant underlined that in its letter dated 17 July 2020, the Respondent informed him that such discount was related to an “international moving delivery fee”, although the Respondent never explained any of that to the Claimant, nor has the Respondent informed him of such costs or presented him the amount related to the mentioned services, which the Respondent did not request at any time.

31. The requests for relief of the Claimant were the following:

− USD 1.355,87 concerning the difference between the costs incurred by the Claimant regarding his surgery, exams and treatment, from the date of the surgery, 1 August 2018, until 1 January 2019, and the amount reimbursed by club, considering that the circumstance which gave rise to such demand is the partial reimbursement that was performed by the Respondent on 22 November 2018;

− USD 7,065, corresponding to the costs incurred by the player from 1 January 2019, date of expiry of the contract, until 20 May 2019, date on which the player received medical clearance;

− USD 90,000 as compensation;

− USD 9,000 as outstanding salary for December 2018;

− 5% interest p.a. on all amounts as from the date on which the club should have performed the relevant payments until the date of effective payment.

b. Position of the Respondent

32. According to the Respondent, the Claimant’s injury was sustained during a training on 12 July 2018. Upon the Claimant’s insistence, the Respondent authorised him to travel to Country A on 21 July 2018 and he underwent surgery on 1 August 2018.

33. The Respondent held that the injury should have been covered under the “oversea travel accident insurance”. It did apply for coverage from its insurance company and in that context the amount of USD 14,741 was paid to the Claimant.

34. The club confirmed that the player never played another match for the club after his injury and the contract expired on 1 January 2019.

35. The Respondent further affirmed that it paid all of the Claimant’s salary in accordance with the contract from 15 February 2018 until 1 January 2019.

36. With respect to the salary of December 2018, the Respondent explained that it applied a deduction in the total amount of XXX 922,610, allegedly with the player’s approval. Indeed, the deduction was for an amount of XXX 301,719 for some goods which the player purchased from the player (USD 2,681.47 based on the exchange rate of 10 December 2018) and XXX 620,891 for the relocation costs which the club allegedly had to pay on the player’s behalf (USD 5,518 based on the exchange rate of 10 December 2018).

37. With respect to the costs related to the player’s injury, the club referred to art. 14 par. 5 of the contract, which implies that the club is responsible for contracting an insurance premium, which covers death, after effects or injury to the benefit of the player. On the other hand, the club is waived any duty or responsibility regarding the player’s death, after effect and also damage of the player’s heirs or persons concerned, which the club finds a fair and reasonable solution. Therefore, the club deems that art. 14 par. 5 is valid and should be applied to the case at hand.

38. The club further underlined that the insurance company paid the equivalent of XXX 61,380.80, i.e. USD 14,741 according to the exchange rate at the time of the payment, in accordance with the insurance policy.

39. The company confirmed this amount as being the total medical costs incurred by the player. Thus, the insurance company has paid all costs due in full and does not owe the player any arrears.

40. According to the Respondent, the difference in amounts which the player claims is the difference between the rate on which the insurance company paid in accordance with the insurance policy and the rate which the player sets himself, in violation of the terms of the insurance policy.

41. The Respondent mentioned that the insurance company would be ready to pay the difference of USD 1,355.87 if the player proves that the company should have applied a different conversion rate. The club held that the insurance company would proceed with such payment if the player provides the relevant proof directly to the insurance company.

42. With respect to the Claimant’s claim for costs incurred after the contract’s expiry, the Respondent stated that it does not bear any responsibility for the player’s injury or after effects in this respect.

43. Furthermore, the Respondent referred to art. 4.1 of the loan, which implies that the player can be reimbursed the medical costs incurred after the contract’ expiry from C, who is the beneficiary of the relevant insurance.

44. In addition, the club held that, on 31 July 2018, it was estimated that the player would return to football after 6 months, while the player wrote in some WhatsApp messages dated 16 February 2019 that, in essence, he is fully recovered.

45. With regard to the Claimant’s claim for compensation, the Respondent stated that it does not have any obligation to pay the player’s salary after the contract’s expiry, including the difference between the salary included in the contract and the salary which the player earned with other clubs.

46. The Respondent is of the opinion that the Claimant has no right to claim the extension of the contract. In this context, the Respondent held that after the expiry of the loan, the Claimant resumed his contract with C and consequently received the salary agreed with C. The Respondent does not find it fair or reasonable that it should be expected to pay the difference between the Claimant’s salary under the contract and his salary with C.

47. The club also underlines that it is impossible to calculate the player’s actual damage since he did not disclose any proof that he received XXX 5,000 per month with C.

48. Finally, the club deems that the player does not have any rights arising from art. 10.1 of the loan agreement.

49. In conclusion, the Respondent rejects the Claimant’s claim entirely.

III. CONSIDERATIONS OF THE DRC JUDGE

a. Competence and applicable legal framework

50. First, the DRC 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 2 September 2020 and submitted for decision on 13 January 2021. Taking into account the wording of art. 21 of the January 2021 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the November 2019 edition of the Procedural Rules is applicable to the matter at hand.

51. Subsequently, the DRC Judge referred to art. 3 par. 1 of the Procedural Rules and observed 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 January 2021), he is 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.

52. Subsequently, the DRC Judge 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 Player (edition January 2021), and considering that the present claim was lodged on 2 September 2020, the August 2020 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

b. Burden of proof

53. The DRC Judge recalled the basic principle of burden of proof, as stipulated in art. 12 par. 3 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 DRC Judge stressed the wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider evidence not filed by the parties.

54. In this respect, the DRC Judge also recalled that in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in TMS.

c. Merits of the dispute

55. His competence and the applicable regulations having been established, the DRC Judge entered into the merits of the dispute. In this respect, the DRC Judge started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. However, the DRC Judge emphasised that in the following considerations he will refer only to the facts, arguments and documentary evidence, which it considered pertinent for the assessment of the matter at hand.

i. Main legal discussion and considerations

56. The foregoing having been established, the DRC Judge moved to the substance of the matter and first noted that the parties agree on the fact that the Claimant sustained an injury on the field of play while being employed by the Respondent.

57. In this regard, the parties strongly dispute the Claimant’s entitlement to the reimbursement of his medical costs in relation to said injury while still employed by the Respondent and beyond the expiry of the contractual relationship, as well as to a remaining part of the Claimant’s salary for the month of December 2018. Equally, the parties are in disagreement as to the Claimant’s right to receive compensation from the fact that the loan to the Respondent was not extended and that following the end of his employment with the Respondent, the Claimant could not find any employment opportunities of a similar value than the value of his contract with the Respondent.

58. The DRC Judge thus addressed each of the Claimant’s requests individually, paying due consideration to the parties’ arguments and documents in support of their respective positions.

As to the claim regarding the costs linked to the player’s surgery and rehabilitation during the validity of the contract

59. Clause 14 of the contract clearly states that the club shall cover expenses incurred during the duration of the employment contract through insurance.

60. In this regard, it remains uncontested that the club made a payment of USD 14,741 on 22 September 2018. The player claims that this corresponded to XXX 56,148.46 whereas he incurred expenses in the total of XXX 61,380.80. The club, however, argues that the paid amount corresponded to XXX 61,380.80 at the time of payment, which is the date to be taken into account in accordance with their insurance policy.

61. In view of the parties’ respective positions, the DRC Judge paid careful attention to the documentary evidence on file in connection with the Claimant’s medical costs, in particular the invoices provided by the Claimant. Upon careful analysis of these receipts, the DRC Judge found that he could not reconcile costs in the total amount of XXX 61,380.80; however, he noted that the parties seem in agreement that this is the total amount of costs which the Claimant incurred.

62. In view of the above, the DRC Judge deemed that he must determine whether the amount paid by the Respondent, i.e. USD 14,741, indeed corresponded to the amount of XXX 61,380.80 on the date of payment, i.e. on 22 September 2018.

63. While emphasising that the Country A currency is a fairly fluctuating currency, the DRC Judge proceeded to apply the currency rate according to the website www.oanda.com. According to the said website, on 22 November 2018, XXX 61,380.80 corresponded to USD 16,253.40. In other words, there is a difference of USD 1,512.40 between the amount due (USD 16,253.40) and the amount which the Respondent paid (USD 14,741).

64. Having established the aforementioned, the DRC Judge held that the difference between the amount paid and the amount actually due is important enough that it cannot be simply attributed to an issue of conversion rate. Therefore, the Respondent is liable to pay the claimed difference of USD 1,355.87, which is actually lower than the one the DRC Judge calculated using the aforementioned website.

65. In view of the fact that the DRC Judge may not award amounts ultra petita, he concluded that the Respondent is liable to reimburse the Claimant the amount of USD 1,355.87 as outstanding reimbursement of costs, plus 5% interest p.a. as of 23 November 2018, i.e. the day following the payment of USD 14,741.

As to the claim regarding the costs linked to the player’s rehabilitation after the expiry of the contract

66. As to this part of the Claimant’s claim, the DRC Judge verified the contractual stipulations, be it the contract or the loan agreement. In this regard, the DRC Judge observed that the contract clearly states that the club shall cover expenses incurred during the duration of the employment contract only.

67. Equally, the loan agreement refers to the Respondent’s obligation to take insurance to cover any injury sustained during the period of the loan, but does not refer to any obligation which would extend beyond that period.

68. In view of the above, the DRC Judge concluded that the Claimant’s claim for reimbursement of medical costs incurred after the expiry of the contract lacks contractual basis.

69. Therefore, this part of the Claimant’s claim must be rejected.

As to the claim for outstanding remuneration (part of December 2018)

70. The Claimant further claims he did not receive part of his salary for December 2018 and therefore claims USD 9,000 in this respect.

71. The DRC Judge took note of the Respondent’s argument in respect of the deduction it applied when paying the Claimant’s December 2018 salary, namely that it had incurred some costs on behalf of the Claimant in connection with the purchase of some goods as well as some relocation costs. Furthermore, the Respondent stated that these deductions were made with the Claimant’s approval.

72. The DRC Judge finds, however, that there is no evidence that the Claimant had approved the deductions made. In any case, the Respondent did not provide conclusive evidence that it effectively incurred these costs, since the documents provided as evidence in this regard are internal documents, which cannot be considered as objective. Furthermore, while examining these documents, the DRC Judge found that the exact nature of such alleged deductions remained unclear.

73. In view of the above considerations, the DRC Judge concluded that the Respondent could not justify the non-payment of USD 9,000, which corresponds to part of the Claimant’s December 2018 salary.

74. In accordance with the legal principle of pacta sunt servanda, the Respondent must therefore pay the Claimant the claimed amount of USD 9,000 plus 5% interest p.a. as of 1 January 2019, i.e. as of the day following the due date of the December 2018 salary.

As to the claim for compensation for loss of income following the injury

75. As a final point in his assessment of the present matter, the DRC Judge analysed the Claimant’s claim for compensation for loss of income.

76. First, the DRC Judge was adamant in his conclusion that there is no legal or contractual basis for the player to claim compensation from the fact that the club refused to extend the contract. Indeed, the parties’ autonomy in extending their contractual relationship must be respected; it appears that the Respondent did not seek to extend theirs, and it was its right not to.

77. With respect to the Claimant’s claim that he earned a salary inferior to the one he earned with the Respondent after the expiry of the contract, the DRC Judge underlined that the player could not prove that such fact was a direct result of the injury.

78. In particular, the DRC Judge emphasised that the Claimant was on loan with the Respondent. After the expiry of the loan, the Claimant returned to his club of origin, the Country A club C. His salary with the latter club logically remained the one he earned prior to the loan, in accordance with their employment contract, which was merely suspended during the loan period. In other words, the Claimant’s salary following the expiry of the loan would in any have been inferior to the one he earned with the Respondent, irrespective of the injury he sustained while under employment with the Respondent.

79. In conclusion, the DRC Judge could not find any conclusive evidence of the actual damage incurred from the fact that his income decreased following the expiry of the contract with the Respondent, nor could that the alleged damage was connected to the injury sustained while under contract with the Respondent. Furthermore, the DRC Judge could not find any contractual basis for such claim either.

80. The DRC Judge, therefore, held that such claim for compensation must be rejected.

ii. Compliance with monetary decisions

81. Finally, taking into account the consideration under number 52. above, the DRC Judge referred to par. 1 and 2 of art. 24bis 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.

82. In this regard, the DRC 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 and for the maximum duration of three entire and consecutive registration periods.

83. Therefore, bearing in mind the above, the DRC Judge decided that, in the event that the Respondent does not pay the amounts due to the Claimant within 45 days as from the moment in which the Claimant, communicates the relevant bank details to the Respondent, provided that the decision is final and binding, a ban from registering any new players, either nationally or internationally, for the maximum duration of three entire and consecutive registration periods shall become effective on the Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.

84. The DRC 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. 24bis par. 3 of the Regulations.

85. Lastly, the DRC Judge concluded his deliberations by rejecting any other requests for relief made by any of the parties.

IV. DECISION OF THE DISPUTE RESOLUTION CHAMBER

1. The claim of the Claimant, A, is partially accepted.

2. The Respondent, Club B, has to pay to the Claimant, A, the following amounts:

- USD 1,355.87 as reimbursement of medical costs plus 5% interest p.a. as from 23 November 2018 until the date of effective payment,

- USD 9,000 as outstanding salary plus 5% interest p.a. as from 1 January 2019 until the date of effective payment.

3. Any further claims of the Claimant are rejected.

4. The Claimant is directed to immediately and directly inform the Respondent of the relevant bank account to which the Respondent must pay the due amount.

5. The Respondent shall provide evidence of payment of the due amount in accordance with this decision to psdfifa@fifa.org, duly translated, if applicable, into one of the official FIFA languages (English, French, German, Spanish).

6. In the event that the amount due, plus interest as established above is not paid by the Respondent within 45 days, as from the notification by the Claimant of the relevant bank details to the Respondent, the following consequences shall arise:

1.

The Respondent shall be banned from registering any new players, either nationally or internationally, up until the due amount is paid and for the maximum duration of three entire and consecutive registration periods. The aforementioned ban mentioned will be lifted immediately and prior to its complete serving, once the due amount is paid.

(cf. art. 24bis of the Regulations on the Status and Transfer of Players).

2.

In the event that the payable amount as per in this decision is still not paid by the end of the ban of three entire and consecutive registration periods, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee.

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer

NOTE RELATED TO THE APPEAL PROCEDURE:

According to article 58 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 20 of the Procedural Rules).

CONTACT INFORMATION:

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