Decision of the Dispute Resolution Chamber. passed in Zurich, Switzerland, on 11 March 2005, in the following composition: on the claim presented by

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1 Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 11 March 2005, in the following composition: Mr Slim Aloulou (Tunisia), Chairman Mr Jean-Marie Philips (Belgium), Member Mr Paulo Amoretty Souza (Brazil) Member Mr Gerardo Movilla (Spain)Member Mr Philippe Piat (France) Member on the claim presented by X as Claimant against Y as Respondent regarding a contractual dispute between the Player X, and the club Y

2 Facts of the case: On 10 July 2002 the player and the club conclude an employment contract valid until 30 July 2003, whereby the club undertakes the obligation to pay to the player USD 1,500 as a monthly salary, in addition to the following amounts: USD 5,000 by 10 July 2002 USD 5,000 by 15 August 2002 USD 10,000 by 15 February 2003 USD 2,000 by the end of the season On 27 October 2002, during the course of a Championship game, the player suffered a severe injury (fracture of the left tibia). Immediately after the injury, the doctors of the local Hospital recommended that the player underwent surgery with no further delay. Notwithstanding this, the player contacted a well-known doctor in his country, who advised him against undergoing surgery and proposed a 90-day period of physiotherapy instead. Without delay, Mr. X left for his country, reportedly with the consent of his club. During his stay in his homeland, the player constantly kept his employer informed about his health conditions. On 2 February 2003 the player informed the club of his full recovery and asked them to provide him with the flight tickets to so that he could resume duties with his club. On 7 February 2003 Y informed the player of their decision to terminate the employment contract for contractual breach, due to fact that the player refused to undergo surgery in the club s country, as recommended by the doctors indicated by the club, and left the club without Y s express consent. In particular, the club stated that the player did not comply with the provision foreseen in Art. II 3 of the employment contract, whereby the player commits himself not to undergo any medical treatment without the club s written consent. The player then decided to go to the club s city to try and settle the matter amicably, but no solution could be found. 2

3 According to the player s position, despite the fact that he did not receive a written permission from the club to undergo physiotherapy in his country, the club agreed per facta concludentia with his trip back there by paying his flight back to his country. Moreover, the club even paid the player s salaries of November and December Furthermore, the player s good faith would be proved by the continuous update of information regarding his conditions he regularly provided with, from his country. Therefore, the player deems that the club should be deemed responsible for having terminated the employment contract without just cause. On account of the above, Mr. X asks the Dispute Resolution Chamber to condemn the club to pay to him the total amount of USD 42, as a result of the following: USD 10,000 due by 15 February 2003 USD 10,500 corresponding to seven month of salaries USD 2,000 due by the end of the season USD 1, for a return ticket USD 3, for medical treatment USD 7, for physiotherapy USD 7,500 as the salaries he would have earned from August to December if he had concluded an employment contract with another club. Y maintains in its position that the contractual termination was fully consistent with the provision of Art. II 3 of the employment contract and asks the Dispute Resolution Chamber to reject Mr. X s claim. Considerations of the Dispute Resolution Chamber: After a careful study of the facts and allegations outlined above, the Dispute Resolution Chamber commenced its deliberations by referring to the art. 42 par. 1 lit. (b) (i) of the FIFA Regulations for the Status and Transfer of Players (hereinafter, the Regulations), according to which, it falls within the purview of the Dispute Resolution Chamber to determine whether one of the parties has committed a unilateral breach of contract without just cause. In this sense, if the employment contract was breached by a party, the Dispute Resolution Chamber is responsible to verify whether this party is accountable for outstanding payments and compensation. 3

4 Furthermore, the Dispute Resolution Chamber will establish the amount of compensation to be paid and decide whether sports sanctions must be imposed (cf. art. 42 par. 1 (b) (ii) and (iii) in connection with art. 22 and 23 of the Regulations). In view of the above, the Chamber concluded that it has jurisdiction to pass a decision on this matter. Firstly, the Chamber took note of the fact that, by means of Article II 3 of the employment contract signed on 10 July 2002, the player committed himself not to undergo any medical treatment without the club s written consent. The Chamber further noted that, although the player was advised by the local doctors to immediately undergo surgery, he decided to opt for a second opinion and left the club to undergo a 90-day period of physiotherapy in his country, without the club s express consent. In this respect, the Chamber pointed out that it is undisputable that the player did not respect the provision contained in Article II 3 of the employment contract signed on 10 July 2002 with the club. Yet, the Chamber outlined that the club seemed to be well aware of the player s choice and apparently did not show any objection to it. Y paid the player s trip back to his country and even granted the player s salaries of November and December In addition to that, Mr. X constantly kept his employer informed about his health conditions from his homeland. Nonetheless, it was not until 7 February 2003 that Y informed the player of their decision to terminate the employment contract for contractual breach, due to fact that he had refused to undergo surgery in the club s country, as recommended by the doctors indicated by the club, and left the club without their express consent. In this respect, the Chamber emphasised that the club should have informed the player of the contractual termination immediately after the player s departure to his country. In actual fact, Mr. X was left with the impression that he was still under contract with the club until the official notification dated 7 February Therefore, the Chamber deemed that the player shall receive the monthly salaries of January and February 2003, i.e. a total amount of USD 3,000. Furthermore, when calculating the amount of compensation the player should be entitled to for the contractual termination, the Chamber had to take into account 4

5 the fact that the player did not respect the provision contained in Article II 3 of the employment contract signed on 10 July 2002 with the club. Consequently, the Chamber decided to grant Mr. X a compensation for the contractual termination in the amount of USD 10,000. Finally, as far as the player s request to be refunded his medical expenses is concerned, the Chamber came to the conclusion that Y shall reimburse to the player the amount of USD 10,000 corresponding to the medical expenses he has borne until the date of the contractual termination, on 7 February In light of the above circumstances, the Chamber decided that Y must pay the amount of USD 23,000 to X. Decision of the Dispute Resolution Chamber 1. The claim of Mr. X is partially accepted. 2. The club Y has to pay the amount of USD 23,000 to X. 3. The amount due to X has to be paid by the club within 30 days as from the date of notification of this decision. 4. If the aforementioned sum is not paid within the aforementioned deadline, a 5% default interest rate per annum will apply and the present matter will be submitted to FIFA s Disciplinary Committee, so that the necessary disciplinary sanctions may be imposed. 5. The claimant is directed to inform the respondent immediately of the account number to which the remittance is to be made and to notify the Dispute Resolution Chamber of every payment received. 6. According to art. 60 par. 1 of the FIFA Statutes this decision may be appealed before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly within 10 days of receiving notification of this decision and has to contain all elements in accordance with point 2 of the directives issued by the CAS, copy of which we enclose hereto. Within another 10 days following the expiry of the time limit for the filing of the statement of appeal, the appellant shall file with the CAS a brief stating the facts and legal arguments giving rise to the appeal (cf. point 4 of the directives). 5

6 The full address and contact numbers of the CAS are the following: Avenue de Beaumont Lausanne Tel: Fax: info@tas-cas.org For the Dispute Resolution Chamber: Urs Linsi General Secretary Enclosed: CAS directives 6