If a player has been absent from a club in order to undergo medical treatment and rehabilitation without the club’s consent but the latter has never requested the player to return to it, or warned him that with his absence he was in breach of the contract; if it has limited its correspondence to request information about the evolution of the player’s rehabilitation; if it has never applied the system of fines applied in case of improper fulfilment of the contractual obligations envisaged in the employment contract; then according to the rule nemo potest venire contra factum proprium, the club has created legitimate expectations to the player that led him to believe that the club had tacitly authorized him to follow the rehabilitation program. Therefore, the club is bound by its own acts and cannot pretend that such absence is to be considered as a breach of the employment contract.
For a party to be allowed to validly terminate an employment contract, it must have warned the other party, in order for the latter to have had the chance, if it deemed that the complaint to be legitimate, to comply with its obligations.
If a player has followed all the medical instructions of the club, but after a few months still has not resolved his physical problems in spite of the treatment followed on the club’s indication, it is lawful for him to seek an alternative and independent medical opinion in order to protect and guarantee his fundamental right to health.
If a player cannot provide his club with his working capacity due to illness or injury, this does not constitute a breach of contract or a just cause for early termination of contract.Facts/Procedure
On 11 February 2013, Christian Udubuesi Obodo (the Player) and FC Dinamo Minsk (the Club) entered into an Employment Contract valid from the signature date until 31 July 2014.
Since the beginning of the training period with the Club, the Player suffered a sharp pain located between his belly and the pubic area.
On 18 March 2013, the Player underwent some medical tests at a Minsk Hospital where he was diagnosed with an unspecified infection to be treated with antibiotics. Pursuant to the medical records corresponding to this exploration, the Player had a “Blunt abdominal trauma. Bursing of the anterior abdominal wall. Subacute mesenteric adenitis”. On 8 April 2013, given the fact that the Player maintained that his pain was getting worse, the Club authorised him to undergo medical examinations in Barcelona, at Quirón Hospital under the supervision of Dr Cugat who...
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