Abstract
According to the RSTP and following the well-established jurisprudence of the DRC, a contract may not be made subject to a successful medical examination. Any such conditions that are included in a contract will not be recognized by the DRC and the contract will be considered valid. If, after signing the employment contract, the player does not appear to be medically fit, the player can successfully claim validity of his contract before the DRC if the club has terminated the employment contract. The player can also claim financial damages. The point of view of the DRC with regard to the medical examination is clear and homonymous. This chapter looks at the well-established jurisprudence of the DRC.
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- 1.
FIFA Commentary, explanation Article 18, p. 55.
- 2.
DRC 4 February 2005, no. 25566.
- 3.
DRC 26 October 2006, no. 1061118. During the contractual period it’s the duty of the player to keep the club informed about his whereabouts and his state of health; See DRC 10 August, no. 87783. See also CAS 2008/A/1593 Kuwait Sporting Club v. Z. & FIFA, award of 30 December 2008. From the latter CAS award it follows that the insertion of a clause in an employment contract which subjected the transfer to a successful medical examination is illegal and contradictory to Article 18 para 4 of the RSTP.
- 4.
DRC 30 November 2007, no. 117356.
- 5.
In CAS 2009/A/1856-1857 Fenerbahçe Spor Kulübü v. Stephen Appiah, award of 7 June 2010, it was decided that a player also has a right to appropriate medical treatment in case he is injured. If the club refuses to provide him with treatment, the player has a just cause to terminate the contract. However, the CAS Panel established in this case that a club does not infringe its duty of care and cannot be held responsible for complications arising following surgical intervention if it has placed its medical staff at the disposal of its player, then sought help from one of the most sophisticated and well-equipped medical establishments in Turkey with many specialized physicians, and then even allowed its player to undergo another medical treatment with other foreign specialists.
- 6.
DRC 21 November 2003, no. 113291.
- 7.
DRC 10 June 2004, no. 6400581.
- 8.
DRC 17 August 2006, no. 861174.
- 9.
DRC 26 October 2006, no. 1061118.
- 10.
DRC 8 June 2007, no. 67909.
- 11.
DRC 7 July 2015, no. 0715437.
- 12.
DRC 19 March 2013, no. 03131648.
- 13.
See also CAS 2013/A/3314 Villarreal CF SAD v. SS Lazio Roma S.p.A., award of 7 March 2014. In this case, it was decided by the CAS that transfer agreements between football clubs can legitimately be made subject to a player passing a medical examination. Indeed, the prohibition laid down in Article 18 para 4 of the RSTP 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”. See also an unpublished decision by the Single Judge of the PSC of 26 August 2014. As follows from PSC 19 March 2013, no. 03131648, it was stressed that also a loan agreement can be made subject to a positive medical examination.
- 14.
FIFA Commentary, explanation Article 18 para 4, p. 55.
- 15.
For example, in the Netherlands. The “Wet Medische Keuringen” [Medical Examinations Act] does not prohibit any parties from making the employment contract subject to the result of a medical examination. See for example the decision of the District Court of Sittard of 10 March 1981, National Case-Law Number AI6903, Prgno. 1670.
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de Weger, F. (2016). Medical Examination. In: The Jurisprudence of the FIFA Dispute Resolution Chamber. ASSER International Sports Law Series. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-126-5_4
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