ome recent CAS and national courts jurisprudence have given a new perspective in questions hitherto unanswered at a FIFA level such as the possibility of the player to benefit from certain social rights under national law, the right to ask for compensatory moral damages or the application of the principle of the specificity of sport when calculating the compensation amongst other interesting aspects. This paper aims at gathering and summarising some of the most recurrent arguments raised by the parties in disputes revolving around the players’ medical condition, while attempting to delve into the consequences for the players and the clubs involved by making reference to the most relevant jurisprudence of the FIFA DRC and the Court of Arbitration for Sport. For instance, Olimpia Club had to pay damages to their former player Sebastián Ariosa (picture) due to an unjustified breach of contract.

The health of a football player is a major factor during the recruitment process. In professional football, medical examinations have become a standard practice conducted prior to the conclusion of the employment contract. Some top-flight football clubs even broadcast it showing the player while jogging on the treadmill as part of the content offered to their fans through different media platforms.

The cornerstone is found in Article 18(4) of the FIFA Regulations on the Status and Transfers of Players (FIFA RSTP): “The validity of a contract may not be made subject to a successful medical examination and/or the grant of a work permit.” Compliance with Article 18 is guaranteed through Article 1(3) a) FIFA RSTP, qualifying it as disposition binding at a national level that must be included without modification by all member associations. The application of this rule by the FIFA legal bodies has been consistent along the years, being part of the so-called «well-established jurisprudence» of FIFA and can be summarized in the following paragraph: «a club wishing to employ a football player has to exercise due diligence and carry out all relevant medical examination prior to entering into an employment contract with the player».

Despite the clarity of the dispositions, the usually high cost os medical treatments together with the prolonged absence of injured players from sporting activities and the obligation of clubs to secure his salary during the entire period of recovery, there are still many disputes with the FIFA legal bodies where clubs attempt to justify the premature termination of an employment contract.

Potential conflicts of laws

The first issue to clarify after deciding on the competence of the decision-making body to entertain the dispute is the applicable law.

The diverse substantive laws governing employment relationships amongst the FIFA member associations make it difficult to balance the interact between national laws and the FIFA Regulations, especially when clubs attempt to rely on usually more favourable national laws to ground its submissions in front of the FIFA legal bodies.

Article 2 of the FIFA Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber 25 enshrines the FIFA conflict-oflaws rule. Article 2 instructs the FIFA legal bodies to decide in light of the “FIFA Statutes and regulations whilst taking into account all relevant arrangements, laws and/or collective bargaining agreements that exist at national level, as well as the specificity of sport.”

The FIFA approach towards the issue of the applicable material law is however rather simplistic. FIFA applies its own regulations, very occasionally paying any consideration to national laws. The longstanding jurisprudence of FIFA, ratified by TAS, has repeatedly confirmed the prevalence of the FIFA Regulations over any other national law chosen by the parties e.g. the DRC Decision reference no. 1014762 of 16 October 2014:

“12. Furthermore, the DRC wished to point out that when deciding a dispute before the DRC, FIFA’s regulations prevail over any national law chosen by the parties. In this regard the Chamber emphasized that the main objective of the FIFA Regulations is to create a standard set of rules to which all the actors within the football community are subject to and can rely on. This objective would not be achievable if the DRC would have to apply the national law of a specific party on every dispute brought to it.”

The underlying reason is that when parties choose to submit their dispute to its forum instead of civil courts, they also make a tacit choice-of-law to submit to its own regulations (i.e. the FIFA Regulations) modifying any different possible choice in the contract.

Article 18(4) FIFA RSTP sets a very clear and high standard with regard to the obligations of clubs when contracting players that might differ with the specific provisions of national law. With it, FIFA is determined to create a levelled playing filed in international football, offering additional protection to international players in front of their clubs through a uniform system that places the main responsibility on the club and that prevails over possible different national laws stipulating otherwise.

Despite the above, it is very often that clubs insist to rely on dispositions of national law to ground their requests. That was the situation in the case no. 02141221, Decision of the DRC of 7 February 2014.

The player suffered a severe car accident that left him paralysed. A few months after the unfortunate event, the club terminated the employment contract unilaterally by referring to dispositions of the national football regulations, which allowed clubs to terminate contracts whenever the injury was caused due to non-related football activities and the period of inactivity exceeds 6 months.

The player, acknowledging its permanent incapacity, filed a claim asking for compensation amounting to the entire residual value of contract, contesting at the same time, the validity of the national regulations as being contrary to the “universal principles of employment law” and arguing that, even if valid, the club had not waited the six-month period before terminating the contract.

For its part, the club objected to the claim alleging the accident was caused by the players’ fault and that the six-month period referred to the expected period of incapacity and not to a time limitation before exercise the right to terminate.

Eventually, the Chamber disregarded the provision invoked by the club in order to terminate the contract, concluding it was not valid in light of Article 18(4) of the FIFA RSTP despite being included in the national regulations. The Chamber held the club responsible for the termination of contract obliging it to pay the outstanding salaries together with a reduced financial compensation taking into consideration the effects of the permanent incapacity in the employment relationship aforementioned.

Another remarkable case where the impact of national laws was assessed in the frame of proceedings before the FIFA DRC is the decision of 30 November

2007. The case circled around the termination by the club of a players’ employment contract due to his hepatitis B infection. The club, that had conducted medical examinations after the signature of the contract, relied on dispositions of national law according to which, foreigners diagnosed with hepatitis B could not obtain a residence permit, to unilaterally terminate of the contract. In this case, the DRC held the club responsible for the termination of the contract whilst it accounted for the dispositions of national law as a mitigating circumstance for the calculation of compensation:

“14. However, the Chamber drew its attention to the argument of the Respondent that the national laws of the BB stipulate that no foreigner infected with hepatitis B can obtain a residence permit. The Chamber mentioned that even though the said alleged national law did by no means constitute a valid reason for the unilateral termination of the employment contract, attenuating circumstances should be applied.”

There are multiple scenarios around the applicable law and in the end it will depend on how the parties formulate their arguments. The idea to keep in mind is that the submission of the parties to the competence of the FIFA legal bodies will operate in the eyes of FIFA and CAS as a tacit choice of law, which will relegate the application of any other law to a secondary place, under the hierarchy established by the FIFA conflict-of-laws rules.

An example of how complex can sometimes be the interplay between different laws it is found in CAS award in the Sebastian ARIOSA v. Olimpia FC case, analysed in detail below. CAS concluded that multiple laws applied in light of the contractual dispositions and Article R58 of the CAS Code 31 , which determined the adjudicating Panel to admit in addition the application of Paraguayan Law to the extend it did not contradict Swiss mandatory Law. The application of national law had a significant impact for both parties in the calculation of compensation.

Issues of substantive nature

Employment contracts subject to successful medical examinations

Pursuant to the well-established jurisprudence of FIFA, a players’ injury or illness does not constitute just cause to terminate a contract in the sense of Article 14 of the FIFA RSTP. This principle determines the interpretation of Article 18(4) and constitutes the point of departure to understand the FIFA jurisprudence according to which the validity of an employment relationship cannot be conditioned to successful medical examinations. The obligation enshrined in Article 18(4) subsists the entire period of contract and does not distinguish between short or long term injuries.

A handbook case to this regard is the one object of the Decision of the DRC of 19 February 2015, case no. 02151450. The player and the club concluded an employment contract running from 1 January 2011 until 30 June 2011. The contract included the following clause: “Clause 2: Notwithstanding anything contained in the Players’ Contract, the Player agrees that the Club shall have the right to terminate the contract without compensation if any of the following conditions are not met and as stated below: (…)

(2) The Player taking and passing the mandatory Football Association of country D/League X medical screening.”

In February 2011, he was diagnosed with a heart disease. In March 2011, the club informed the player his contract was not valid because it failed to pass the medical test. The player thereafter, submitted a claim against the club. The conclusion of the Chamber was predictable:

“26. In this context, the members stated that the contents of art. 18 par. 4 of the Regulations was of mandatory nature and could not be contractually amended or circumvented. The Chamber therefore stated that the reason of the Respondent to consider the contract invalid had no legal grounds.”

However, not all disputes are that simple. By way of example, when at the basis of the dispute a pre-contract, the legal discussion will normally focus on the binding nature of the document and the special circumstances of each case will be essential to determine the party at fault. Take as an example the case below.

Decision of the DRC of 24 October 2011, case no. 10111169:

The player and the club concluded a precontract that explicitly highlighted its temporary character and the fact that an employment contract needed to be signed once the medical examinations were successfully conducted.

“17. Notwithstanding, the DRC judge was equally eager to stress that the precontract, according to the explicit wording of its par. 4, is a temporary agreement and that such condition was known to the Claimant by the time of its signature. By having agreed to sign the pre-contract, the player also accepted the condition of its provisory nature and of its possible, but not necessary, conversion into a permanent employment relationship with the Respondent, in case certain prerequisites should be fulfilled.

18. Furthermore, the DRC judge pointed out that the pre-contract was valid as from 1 February 2011 until 30 June 2011, for a period of five months, and was orally terminated by the Respondent on 13 January 2011, i.e. even before it would have come into force.”

The DRC judge decided to reject the claim of the player considering that neither party was truly interested in creating contractual relations. The judge remarked in its reasoning that the conclusive behaviour of the parties determined the outcome of the case in favour of the club, making it to some extent unique.

Nevertheless, the case above remains a veritable exception and is not possible to extract general conclusions from it.

One must always keep in mind the well-established jurisprudence of the FIFA legal bodies according to which contract offers and/or pre-contracts are deemed as true employment contracts as long as all necessary elements (i.e. essentialia negotii) such as, the parties to the contract, their role, the duration of contract and the remuneration can be found in them, in which case Article 18(4) will deploy its effects, impeding the parties to condition the validity of the contract to medical examinations or possible injuries during suffered the period of contract.

The obligation of the player to inform the club of his health condition

Whilst it is the club’s obligation to verify the players’ condition before contracting him, the player is also called to act in good faith and thus, must inform the club of any issue that could be deemed relevant for the purposes for which he is recruited (i.e. playing football) and that could be of interest for the club or have an important incidence on its consent. The obligation to act in good faith stems from Article 2 of the Swiss Civil Code, and although configured in a general manner, extends to all juridical relationships allowing the adjudicating body to consider the specific context and circumstances of each case, and contributes to the evaluation and application of the law.

Nevertheless, when a club relies on an alleged act of bad faith from the player by disguising his real health condition, it will all come down to the capacity of such club to discharge the burden of proof under Article 12(3) of the FIFA Rules governing the procedures of the Players’ Status Committee and the Dispute Resolution Chamber.

The standard of evidence required by the FIFA legal bodies is set by the current jurisprudence at the possible highest level (i.e. “beyond any reasonable doubt”) and in the opinion of the undersigned, even if attained, it cannot guarantee the club will prevail. The reason for it is that the obligation to conduct medical tests and to obtain any relevant information, concerns exclusively the club and therefore, there will be always a certain degree of negligence when any old injury or disease are discovered after the conclusion of the employment contract. In such cases, even if it could be proved the player failed to disclose any particular information, the club risks also being prevented from relying on its own fault by virtue of the legal tenet “Nemo auditur propriam turpitudinem allegans.”

The above view is confirmed by the FIFA Commentary on the Regulations for the Status and Transfers of Players when explaining that “Violations of this provision are linked to negligence by the new club that has not exercised the usual care expected from it in business life.” The only obligation of the player is, according to the Commentary’s, to put himself at the clubs’ disposal and supply the club with all documents and information required in good faith.

When both obligations are put in a balance, it might turn out very difficult, not to say impossible, in practice for a club to demonstrate it deployed all diligence required and despite it, it still failed to detect a medical problem, that was in addition, intentionally and in bad faith concealed by the player.

Be that as it may, surprisingly, this argument is still one of the most recurrent and useless defences invoked by clubs when confronting cases of termination due to medical reasons.

The case no. 0812762, Decision of the DRC Judge of 27 August 2012 constitutes a good example. The club invoked the fact that the player has intentionally concealed suffering from asthma, that was only discovered after conducting in-depth medical examinations at the return of the preseason camp and that such circumstance, entitled it to unilaterally terminate the employment contract with just cause.

The judge rejected the arguments of the club that had failed to bring any evidence by simply referring to Article 18(4) of the FIFA RSTP outlining that medical examinations must be made by the potential new club prior to the signature of the contract, and that this is an obligation of mandatory nature that cannot be contracted-out or circumvented in any other way. The DRC judge decided consequently, that the club was to be held responsible for the contractual termination and relied on Article 17.1 of the FIFA RSTP to calculate the amount of financial compensation to be paid to the player.

The same line of defence was put forward by a club against the player in the case no. 06131988, Decision of the DRC of 28 June 2013. Briefly, less than a year after signing the player, the club suspended the contract and ceased to pay his remuneration alleging it had been advised by its medical services that the player suffered from heart disease and had to end his professional career.

The player formally asked the club for a second opinion in order to demonstrate he could carry on with his sporting activities, but to no avail. A few months after the suspension of contract, the club unilaterally terminated the employment contract due the alleged failure of the player to inform of his medical condition before entering into the contract. The player contradicted the club, arguing it was publicly known that during his career he had suffered from a heart condition and that the club was well aware of it before signing the employment contract.

The Chamber remarked that the player had indeed been subject to medical checks before signing the employment contract and that he had satisfactorily rendered his services to the club for almost one season. As to the allegation of the club according to which the player had concealed his medical condition, the Chamber rejected it by referring to the documents existing in the file, which evidenced that the player had undergone extensive medical examinations.

Eventually, the Chamber resorted in Article 18(4) of the FIFA RSTP to conclude that the permanent incapacity in itself could not be a valid reason to terminate the employment contract and determined the club was responsible for the termination without just cause.

Finally, a curious case is found in the above anticipated, DRC decision of 30 November 2007. The club terminated the employment contract with the player after breaking his tibia adducing he had hidden an old injury before signing the contract and refused to follow the medical treatment necessary to recover. However, pending the case, the club and the player signed a termination agreement by mutual consent whereby the player acknowledged having hidden physical problems caused by a previous sporting injury and that the club would have never hired him if it had been informed. The club used the acknowledgement of the player to question the validity of the employment contract. However, even with these favourable premises, the Chamber rejected the request of the club regarding the validity of the contract, considering the club had decided to maintain it for a considerable period of time after the player had suffered the injury.

The Chamber eventually accepted the claim of the player for the outstanding salaries until the date of termination by mutual consent and rejected the claim for compensation.

Permanent incapacity of a football player: effects on the compensation.

Permanent incapacities are probably the most difficult situations to deal with for a football club, not only for the high emotional aspect that implies for a player forced to hang up his boots, but because the club has to fulfil the contract in continuation despite not benefitting from the players’ services. If the club does not have an insurance contracted, problems can definitely arise.

In the above cited case (DRC, 28 June 2013, no. 06131988), the club was indeed obliged to compensate the player for the illegal termination of the contract in light of Article 17(1) of the FIFA RSTP, although the Chamber took into account as a mitigating factor for the calculation of the compensation, the fact that the player was unable to continue his football career. The Chamber reduced the due compensation in 27% and reasoned its decision in the following terms:

“34. As stated above, the circumstance of permanent incapacity to play professional football is taken into consideration in the determination of the amount of compensation. Indeed, an employment contract is essentially based on a mutual exchange of obligations between the parties involved, i.e. the employer (in football, the club) undertakes the obligation to remunerate the employee (in football, the player) in exchange of his services and the employee undertakes the obligation to render his services to the employer in exchange of the employer’s remuneration, for the duration agreed upon between the parties. In the event of permanent incapacity to play, the player is obviously prevented from fulfilling his main obligations arising from the employment contract, i.e. to render his services to the club. A permanent incapacity of a player thus creates a particular situation, in that the other party, a club, can no longer be expected to continue to fulfil its contractual obligations.”

“36. In the present matter, in view of all of the above as well as the particular issue at stake, the members of the Chamber deemed that compensation within the range of 70% to 80% of the final amount of compensation, including any possible mitigation of damages by the player, was considered reasonable and proportionate as compensation for breach of contract in the specific case at hand.”

The reduction of the compensatory amount in these same terms has been so far the general rule by the FIFA decisions in cases of permanent incapacity (see also e.g. case no. 02141221) unless the club aggravated the situation by acting in bad faith towards the player.

On the other side of the same coin is the above-anticipated ARIOSA case (TAS 2015/A/3871 Ariosa c. Club Olimpia / TAS 2015/A/3882 Club Olimpia c. Ariosa)  and its supporting FIFA DRC Decision of 20 August 2014, no. 0814386.

The conflict between the player Sebastian ARIOSA and the club arose after the first of them was diagnosed with cancer in May 2013. In brief, on 30 December 2013, while undergoing chemotherapy, the club informed him of the suspension of the employment contract and stop paying his remuneration, adducing the fact the player was unable to perform his duties. The player immediately rejected the position of the club and demanded the payment of his outstanding salaries. The club replied ratifying the suspension of contract and informing it had deposited the pending amounts in the national association obliging him to present an invoice in order to release the sums. Days after, the player terminated the contract unilaterally.

The reaction of the club to the termination was disgusting. The club, aware of the precarious condition of the player, rejected the termination of contract and summoned the player to resume duties with the team.

The player filed a claim with the FIFA DRC requesting the payment of the outstanding salaries, performances bonus, compensation for the early termination without just cause amounting to the residual value of contract in accordance with Article 17(1) of the FIFA RSTP, the medical expenses, indemnities according to national labour law, moral damages and an additional compensatory amount considering the specificity of sport, interests for late payment and others.

Through a first instance decision, the DRC partially admitted the claim of the player concluding the club had terminated the contract without just cause as the club had failed to comply with its obligations, but rejected the request for moral damages, the specificity of sport and the reimbursement of medical expenses alleging the player had failed to prove them. It also dismissed the request of performance bonuses considering the player had not taken part in the tournament and, the indemnity provided by local labour law for lacking of contractual basis. Both parties appealed the decision.

In what it is already considered a reference award, CAS overturned the FIFA decision, introducing for the first time compensation for moral damages in the context of a contract termination without just cause for medical reasons. The Panel highlighted that the appalling treatment and the ill-intended actions of the club, such as depositing the amounts in the national association and calling him to rejoin the team while undergoing treatment, justified the grant of compensatory moral damages which quantified as 7% of the full amount of contract.

The Panel also admitted the request of the player to consider the specificity of sport in the final compensation, understanding the conduct of the club was contrary to the values that inspire sport, which was quantified in 10% of the value of contract.

Beyond the splendid CAS award, the good news is that after two years of an unwanted career break Sebastian ARIOSA is back in the field playing at a professional level.

Conflicting positions regarding the medical condition of the player

In medicine, one plus one does not always equal two. The specific characteristics of each injury or illness can easily lead to different opinions as to the diagnosis, the necessary medication, the intervention to undergo and/or the most effective recovery treatment. At a professional level, where the stakes for clubs and players are high, a wrong decision can ruin a players’ career, as it could have happened in the case below.

CAS award in the case 2014/A/3626 Carmelo Enrique Valencia Chaverra v. Ulsan Hyundai FC: 47

In summary, during a training session in October 2010 the player clashed into an opponent player. After the incident, the player felt a pain in his right knee and underwent MRI under the supervision of the clubs’ medical services. No major issues were revealed at that time and the

player was recommended to follow a conservative treatment after which he took part in the clubs’ normal activities, training sessions and matches. After the winter break and during the preparation camp of January 2011, the player indicated the club he still had pain in his right knee, and was allowed to absent trainings and to return to South Korea for a new MRI. The player sent the results of the MRI to his doctor in Colombia, who after its analysis concluded he had an important injury that needed surgery and a subsequent period of rehabilitation of approximately 6 months.

On 22 January 2011, the player requested the club to take note of the Colombians’ doctor conclusions and resolve the matter. The medical services of the Club however, were of a different opinion and recommended rehabilitation without any surgery.

In the end, on 1 February 2011, the player unilaterally terminated the employment contract without notice considering the club had put the players’ health and career at risk and submitted a claim against the club before the FIFA DRC. On 7 February 2011, the player underwent surgery in Colombia.

Both parties submitted reciprocal claims with the FIFA DRC that eventually ruled in favour of the club considering that player had acted disproportionately and held him responsible for the termination of contract and liable to pay a substantial financial compensation to the club. The DRC decision was passed on 4 October 2013, case no. 10131021:

“17. After a thorough examination of all the given circumstances, the Chamber did not concur with the conclusion of the player. In particular, the Chamber deemed that the sole fact that the doctor of the club and the doctor of the player had a different medical opinion does not lead to the conclusion that the clubs’ doctor had not taken the injury serious; the clubs’ doctor simply had a different opinion on how to treat the player’s injury. As a result, the player’s decision to leave the club and terminate the contract was considered by the Chamber as a disproportionate measure in light of the circumstances.”

The player appealed before CAS where he essentially argued in his defence having been provided inadequate medical assistance and treatment by the club that refused to take the injury in a serious manner. The club on its side followed the argumentation of the FIFA DRC and insisted in the fact that a different medical opinion did not entitle the player to terminate the contract.

The adjudicating Panel referred in first place to Article 337(2) of the SCO to define the notion of just cause for the termination of an employment contract and after considering the extensive arguments and evidence produced by the parties (putting special emphasis on the doctors’ opinions) it noted, that the player had failed to substantiate his claim that the attitude of the club’s doctor was unreasonable or unprofessional.

Notwithstanding the above, the Panel concluded that both parties’ behaviour contributed to the termination of contract:

“98. In other words, and in summary, the panel finds that both parties’ behaviour led to the situation in which the termination of the Contract was declared by the Player:

i. the parties had, both in good faith, different views as to the treatment for the players’ injury.

ii. the club disregarded the Players’ request for a new medical examination and unreasonably imposed a fine;

iii. the Player felt in good faith that the Club was not taking care of him and that the treatment recommended by the Club was not helping improve his physical condition. However, he somehow ‘rushed’ to the termination of the Contract only four days after that the opinion of Dr. NARANJO insisting for the surgery had been received by the Club, without any advance notice and without giving the Club the possibility to answer, in a situation where no real reasons of urgency existed;

iv. ‘cultural’ reasons may have also influenced the parties’ reciprocal attitude at the time of the termination of the Contract.”

The Panel found that the player could in good faith believe that his career was in danger in the absence of a proper treatment, that in conjunction with the actions of the club had contributed to an “exacerbation of the tensions” which entitled him to put a premature end to the employment contract. Finally, as to the consequences of the termination, the Panel refused to rely on the provisions of Article 17 FIFA RSTP for its calculation “as they provide for some criteria for the quantification of damage only in the event a contract is terminated because of (or through) a breach by one of the parties, i.e. in a situation which does not correspond to the present case”, and in use of its discretional powers under Article 337 b 2) SCO, decided that no compensation was to be granted, concluding that the prejudice for the parties deriving from the contract termination, matched the benefit it produced to each of them.

The termination of contract by mutual consent.

It is also possible that the despite the negligence of the club in conducting the tests prior to the recruitment of the player, the latter accedes to find an amicable solution with the club and signs a termination agreement putting a premature end to the employment contract.

These agreements are, in principle, valid under the legal tenet of contractual freedom enshrined by Article 19 of the Swiss Code of Obligations and some of them have already been put to test in cases brought before the FIFA DRC. Indeed, in a dispute confronting a player against his former club, the FIFA DRC Decision of 19 February 2015 case no. 02153253 concluded that the signature of the termination agreement by the player, in conjunction with the long time elapsed between the submission of the claim with FIFA and the signature of the termination agreement (i.e. 20 months) constituted a tacit acceptance of the termination and thus, rejected the claim of the player, who had previously argued in his defence he had no other choice but to sign the termination agreement if he wanted to continue playing football.

Despite the referred decision, it is the opinion of the undersigned that clubs must act extremely carefully when concluding termination agreements in the context of medical issues with the player. Depending on the particular circumstances of the case and the contents of the agreement, players could attempt to rely on dispositions of the SCO regarding unfair advantage, defect consent, or even the prohibition of employees to waive certain rights granted under the law, to annul the termination agreement and seek relief for unjust termination of contract. A good termination agreement therefore, will have to be balanced in terms of reciprocity of rights and obligations and mutual concessions of the parties.

Unilateral clauses allowing the termination of contract and/or the reduction of salaries in case of injury.

“Article 10. Termination by the club or the player: The Club A may terminate this contract before its expiring term and the first party will by to the second party amount of two-month salary only.”

Such was the clause used by the club to prematurely put an end to an employment contract while the player was undergoing therapy a few months after suffering an injury during a match. In use of the clause above, the club proposed the player a compensation of two monthly salaries.

Along with Article 10, the contract stipulated other clauses providing for the right of the club to unilaterally reduce the salary of the player in a substantial amount in case of injury.

The case made object of the DRC decision of 31 October 2013 no. 10132005.

Whilst the player asked the Chamber not to account for Article 10, considering the clause abusive and drafted only in favour the club; the club on the contrary, contended the clause was bilateral and thus valid, in view of its title (i.e. “Termination by the club or the player”).

The Chamber rejected the interpretation given by the club to the clause and ruled in favour of the player, due to the “highly arbitrary nature” and “potestative” character of the termination clause, which de facto, entailed the absolute discretional powers of the club as to the continuation or not of the employment relationship.

Unfortunately, the Chamber did not enter to the analysis of the clauses providing for the right of the club to reduce the players’ remuneration in case of injury, however, the undersigned is of the opinion that these clauses are also unacceptable from a legal standpoint, being to the sole benefit of the club. By way of comparison, the FIFA DRC has ruled similarly in some cases where clubs attempted to rely on contractual clauses allowing to decrease the players’ salaries due to improper fulfilment of the contract by the player or due to a minimum match participation.

The most interesting part of this decision is however, the calculation the compensation to which the player is entitled. The DRC in use of its discretionary powers under Article 17(1) FIFA RSTP reduced the compensatory amount in a remarkable amount considering that, despite the invalidity of Article 10, the player had created the expectation on the club that it could terminate the contract at any time by paying two-month salaries and had to bear the consequences for it:

“29. (…) In this respect, the Chamber wished to remind the parties that a party signing a document of legal importance, as a general rule, do so on its own responsibility and shall thus be aware of and bear the possible consequences thereof.”

The obligation to insure the player against injury or illness.

As opposed to the specific provisions of the FIFA RSTP regarding the release of player to their national representative teams, there is no other mention in the regulations as to the responsibility or obligation of clubs to insure the players against injury or illness.

It is nevertheless likely that the obligation to insure players and/or to guarantee the payment of their remuneration during periods of incapacity are stipulated by national labour laws, or included in the national football regulations, or in collective bargaining agreements 56 between associations representing football players and the respective national football associations.

Be that as it may be, the FIFA DRC has consistently emphasized that when a player gets injured or suffers from illness, it is the club’s sole responsibility to secure the continuation of payment of remuneration, “possibly by means of adequate insurance.”

Transfer agreements subject to successful medical examinations.

The protection offered by Article 18(4) FIFA RSTP therefore, does not extend to transfer and/or loan agreements, the validity of which can be thus, conditioned to the successful passing of medical examinations by the player. Both the FIFA legal bodies and CAS have repeatedly underlined the independence of transfer agreements in front of employment contracts.

A leading decision to this regard is the CAS 2013/A/3314 Villarreal CF SAD v. SS Lazio Roma S.p.A., award of 7 March 2014 where the adjudicating Panel confirmed the FIFA interpretation of Article 18(4) FIFA RSTP:

“46. The Panel notes that the prohibition laid down in Article 18.4 of the FIFA Regulations belongs to Section IV of the regulations, which concerns the “maintenance of contractual stability between professionals and clubs”, and is expressly qualified as a “special” provision “relating to contracts between professionals and clubs”.

47. Therefore, based on a prima facie literal reading, the prohibition in Article

18.4 cannot be applied to contracts between clubs.

48. This conclusion is supported by a purposive interpretation of the provision, which aims at fostering the contractual stability of employment contracts and thus avoiding disruptions during the football season.”