F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2017-2018) – fifa.com – atto non ufficiale – Decision 25 January 2018

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 25 January 2018,

in the following composition:

Geoff Thompson (England), Chairman

Roy Vermeer (The Netherlands), member

Daan de Jong (The Netherlands), 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 30 May 2014, the player of Country B, Player A (hereinafter: the Claimant) and the club of Country D, Club C (hereinafter: the Respondent) signed an employment contract (hereinafter: the contract) valid as from 1 June 2014 until 30 June 2015.

2. The contract provides under its clause 4.1.9, the following: “In the event of [the Claimant]’s sporting injury during effective period of the Contract [the Respondent] shall reimburse [the Claimant] reasonable expenses (only incurred during the effective period of the Contract and only if they do not provoke objections of [the Respondent]’s doctor, except as otherwise provided herein) on [the Claimant]’s medical treatment in the territory of the Country D (and/or abroad except as otherwise provided herein), insofar as such expenses are not covered by [the Claimant]’s medical insurance and compulsory social insurance against industrial accidents”.

3. Moreover, clause 10.1 of the contract establishes that: “In the event of a dispute between the parties, it shall be settled by direct negotiations. If the dispute between the parties is not resolved, it shall be settled in accordance with the Rules of the Football Association of Country D for the Status and Transfer (transfer) players.”

4. On 26 December 2016, the Claimant lodged a claim against the Respondent in front of FIFA, requesting, inter alia, to be reimbursed for the cost of a surgery he had to undertake in the amount of EUR 4,987 plus 5% interest rate per annum from 30 June 2015 until the date of effective payment.

5. In this respect, the Claimant argued that, on the basis of clause 4.1.9 of the contract, he has to be reimbursed by the Respondent for the injury he suffered during the period of validity of the contract, which led him to undergo surgery in his home country of Country B.

6. Along those lines, the Claimant explained that, on 8 December 2016, he put the club in default of payment of the requested amount, however to no avail.

7. Furthermore, according to the Claimant, the club did not oppose to his treatment in Country B. In order to prove this allegation, the Claimant highlighted that the Respondent published an interview in its official website whereby he explains that he had to go to Country B to treat his injury.

8. In its reply to the claim, the Respondent rejected the claim of the Claimant in full. In particular, the Respondent argued that the conditions for it to pay the medical costs to the Claimant in accordance with art. 4.1.9 of the contract were not met.

9. First, the Respondent emphasised that said art. 4.1.9 provides that the costs should be “reasonable”. In this context, the Respondent states, that the Claimant neither asked for the Respondent’s permission, nor he provided receipts of any payment.

10. In continuation, the Respondent claims that Claimant got injured prior to the signing of the contract. In particular, the Respondent referred to the press release enclosed by the Claimant whereby it is stated that the injury prevented the Claimant from participating “in the last six rounds of the last-year Championship” which, according to the Respondent, ended in May 2014.

11. Subsequently, the Respondent stressed that its obligations to cover the medical costs of the Claimant was limited to the costs incurred in the territory of Country D, which is not the case of the Claimant. In this context, the Respondent further maintains that the Claimant refused treatment to be carried out on the territory of the Country D and went instead to Country B to be treated.

12. In any case, the Respondent questioned the competence of FIFA, maintaining that the competent body in this matter is the Dispute Resolution Chamber of the Football Association of Country D (DRC of Football Association of Country D); hereby referring to clause 10.1, of the contract (cf. point 3. above).

13. Finally, the Respondent claims that the claim of the Claimant is time-barred, as, whilst the event giving rise to the dispute, namely the surgery of the Claimant, occurred on 15 July 2014, the claim was lodged on 26 December 2016 only.

14. In his replica, the Claimant stresses first that the event rising to the dispute is not the injury itself or the surgery, but rather the date of termination of the contract, this is 30 June 2015. In this regard the Claimant alleged that the Respondent “was in continuous debt towards the player”.

15. As to the allegation of the Respondent that the injury occurred before the entering into force of the contract, the Claimant points out that he has been contractually bound to the club since February 2012.

16. Furthermore, the Claimant explained that he had to go to treat his injury in Country B as “doctors could not make an accurate diagnosis” and that he “had to visit many doctors in Country B during <…>vacation and to consult with the doctors of the national team of Country B”.

17. In this context, the Claimant argues that the Respondent also did not object to his treatment in Country B, neither the contract prohibits any treatment abroad.

18. In reply to what the Respondent claims to be unreasonable costs incurred by the Claimant, the Claimant holds that the costs were reasonable, as his treatment constituted only about 18% of his monthly salary.

19. Regarding the competence issue raised by the Respondent, the Claimant maintains that FIFA is the competent body to deal with his claim.

20. In its duplica, while addressing the competence issue, the Respondent holds this DRC of Football Association of Country D’s jurisdiction is confirmed by the Regulations of FIFA and recognised by FIFA and the Continental Confederation, as being the relevant body to hear football related matters in Country D.

21. Furthermore, the Respondent holds that the Claimant violated the contract conditions, as he decided by his own merits to undergo treatment abroad and stresses that the Claimant did not prove that doctors of Country D did not provide him with a diagnosis. Under those circumstances, the Respondent believes not having to bear the treatment costs, as the Claimant had no justifiable reason to not have undergone treatment in Country D.

22. After having invited to present his comments in respect to the Respondent’s submission that the Dispute Resolution Chamber of the Football Association of Country D would be competent to deal with the present matter rather than the FIFA Dispute Resolution Chamber, the Claimant holds that the DRC of Football Association of Country D is not an independent body, as required by the FIFA Regulations.

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 case at hand. In this respect, it took note that the present matter was submitted to FIFA on 26 December 2016. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2015; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 of the Procedural Rules).

2. In this respect, the Chamber was eager to emphasize that contrary to the information contained in FIFA’s letter dated 19 January 2018 by means of which the parties were informed of the composition of the Chamber, the Member E and the Member F, refrained from participating in the deliberations in the case at hand, due to the fact that the Member E has the same nationality as the Respondent and that, in order to comply with the prerequisite of equal representation of club and player representatives, also the Member F refrained from participating. Thus, the Dispute Resolution Chamber adjudicated the case in presence of three members in accordance with art. 24 par. 2 of the Regulations on the Status and Transfer of Players (edition 2018, hereinafter: the Regulations).

3. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and highlighted that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the Regulations, the Dispute Resolution Chamber, would, in principle, be competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a player of Country B and a club of Country D.

4. Notwithstanding the above, bearing in mind that the present dispute, lodged on 26 December 2016, concerns the reimbursement of costs related to a surgery, which occurred on 15 July 2014, the members of the DRC considered that they should examine if the present claim, or any part of it, is barred by the statute of limitations.

5. Indeed, the members of the Chamber referred to art. 25 par. 5 of the Regulations, which, in completion to the general procedural terms outlined in the Procedural Rules, clearly establishes that the Dispute Resolution Chamber shall not hear any dispute if more than two years have elapsed since the event giving rise to the dispute arose and that the application of this time limit shall be examined ex officio in each individual case.

6. In view of the above, the DRC deemed it fundamental to underline that in order to determine whether the Chamber could hear the present matter, it should, first and foremost, establish which is “the event giving rise to the dispute”, i.e. which is the starting point of the time period of two years as set out under art. 25 par. 5 of the Regulations.

7. In this context, the Chamber referred to the arguments of the parties regarding the event giving rise to the dispute. In this respect, the Claimant maintained that the date on which the contract expired, i.e. 30 June 2015 should be considered as the event giving rise to the dispute.

8. Equally, the Chamber duly noted the position of the Respondent, who rejected the Claimant’s position and held that the date giving rise to the dispute was the date of the surgery itself, which occurred on 15 July 2014.

9. In view of aforementioned dissent between the parties regarding the event giving rise to the dispute and after a thorough examination of the Claimant’s submission and the documentation provided in these proceedings, the Chamber was eager to emphasize that the explicit request for reimbursement of surgery costs implies that the event giving rise to the dispute should be set at the moment when the player when he could have claimed back the costs of the surgery and not as from the end of the contract, as sustained by the Claimant.

10. In this respect, taking into account the content of the art. 12 par. 3 of the Rules of Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof. The Chamber noted that the Claimant did not submit documentation that could help establish the exact date on which the surgery costs were allegedly paid by him.

11. In continuation, since the Chamber was of the opinion that the Claimant was not able to provide conclusive documentary evidence related to the exact date when the surgery costs were allegedly paid by him. The only relevant date that can be established with the documentation on file is the date of the surgery itself, which occurred on 15 July 2014. In consequence, the Chamber concluded that the event giving rise to the dispute and hereby the starting point of the time period of two years set out under art. 25 par. 5 of the Regulations regarding the surgery costs occurred on 15 July 2014.

12. In this context, recalling that the present claim was submitted to FIFA on 26 December 2016, the Chamber concluded that the player’s claim for reimbursement of the surgery costs regarding the surgery that occurred on 15 July 2014, had fallen due more than two years prior to the date on which the Claimant lodged his claim in front of FIFA.

13. As a consequence, referring to art. 25 par. 5 of the Regulations on the Status and Transfer of Players, the DRC concluded that the time limit of two years for the Claimant to claim the reimbursement of costs related to the surgery of 15 July 2014, had elapsed at the time he had lodged his claim in front of FIFA.

14. Therefore, the Chamber decided that the claim of the Claimant is barred by the statute of limitations and, consequently, inadmissible.

III. Decision of the Dispute Resolution Chamber

The claim of the Claimant, Player A, is inadmissible.

*****

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:

Omar Ongaro

Football Regulatory Director

Encl.: CAS directives