What USL documents tell us about Tommy Heinemann saga
Photo credit: Jamie Smed
On Jan. 31, FC Cincinnati terminated the contract of forward Tommy Heinemann. Subsequently, Heinemann’s agent contradicted FC Cincinnati’s version of events and stated that they would “go through formal dispute resolution” to determine whether Heinemann has been wrongly dismissed.
In regards to @fccincinnati unilaterally terminating my valid contract today: pic.twitter.com/2i4jX0UiQb
— Tommy Heinemann (@TommyHeinemann) January 31, 2018
This issue raised some interesting questions:
- Is there a clause that allows a team to terminate the contract of a player based on pre-existing injuries? If so, what is it?
- When is a player’s medical performed? Is there an upper limit on signing a player and conducting a player’s medical?
- Are there FIFA mandates protecting players in this situation?
- What remedial options does Heinemann have in this situation?
Soc Takes was provided with a copy of a generic 2018 USL player contract and read through FIFA’s “Regulations on the status and transfer of players” to address these questions.
In the USL player agreement, there are relevant subsections pertaining to player health and contractual obligations – subsections 4 and 8 :
Subsection 4 (d) – “Player shall report to Club in good physical condition and shall keep himself throughout the term of the this Contract in good physical condition;
Subsection 4 (e) -“Player agrees to disclose to Club any previous injury or any limitation to this physical ability to play soccer, including any ‘permanent disability rating’ previously assigned and the specific nature of that injury. Player further agrees to provide Club prompt notice of any injury sustained in the performance of his services during the duration of this Contract.”
Additionally, Subsection 8 states:
Subsection 8 – “Club shall conduct an examination of Player performed by a licensed physician prior to execution of this Contract.”
Subsection 8 then recommends that a player be subject to a similar physical at the end of his contract. However, that is not applicable here.
Why is this relevant?
This document raises more questions about how any club determines whether a player has a pre-existing injury. Critically, if FC Cincinnati is able to show that Heinemann or his agent knew of a pre-existing injury (widely rumored to be a knee injury, though this remains contested), and did not reveal this injury to the club, then the club would clearly meet the criteria written in (e). However, if the club cannot show knowledge of pre-existing injury, does the club still have the right to terminate the contract?
Per Transfermarkt, Heinemann spent almost an entire year (April 2012 – March 2013) injured due to a knee injury.
At least from an outside perspective, there’s little reason to think Heinemann was hampered by injury at the time of signing. On November 12th, Heinemann scored the decisive goal in the San Francisco Deltas’ NASL Championship victory, slotting in a penalty kick in the 19th minute. The striker ended up playing until nearly the very end, when he was subbed off in this 90+2nd minute. For a player who relies so heavily on the physical aspect of his game, surely he wasn’t hampered by a knee injury in his last action before signing with Cincinnati.
Soc Takes reached out to a SF Deltas representative to ascertain whether Heinemann passed his exit medical. No response was provided at the time of publishing.
Heinemann was signed by the USL side just 23 days after he claimed the NASL title. The striker put pen to paper on December 5th – nearly two full months before the club would negate his contract.
Subsection 8 clearly states that the required medical needs to have been performed prior to signing of a player contract. Therefore, unless FC Cincinnati is able to conclusively show Heinemann deliberately hid the alleged injury, it is difficult to see how they can legally void Heinemann’s contract.
A more troubling question raised by how 4(d) and 4(e) are interpreted extends beyond this particular case – is FC Cincinnati (or any other club) allowed to terminate the contract of any player that reports to pre-season injured?
Based on the club’s press release where they state “The club worked with Heinemann and his representation over the last two weeks getting additional medical opinions, ending with today’s release…” it seems likely that the club is confident about an existing injury to the player. Yet, his agent asserts that the player “is healthy”.
However, contrary to media reports, Tommy is healthy and has been since he won the NASL championship with San Francisco Deltas last season.
Tommy continues to train and prepare for the 2018 season.
— PJ Savage (@HighlandSportsM) January 31, 2018
Therefore, questions persist about that central issue as well. Certainly the club could clarify this issue via the usage of imaging (an MRI, for example) combined with the opinion of an expert (an orthopedic surgeon, for example).
Subsection 8 also closes with a clear intention to give credence to FIFA regulations. “The above language is subject to any current or subsequent FIFA legislation specifically addressing the same.”
What does FIFA say?
“The validity of a contract may not be made subject to a successful medical examination and/or the grant of a work permit.”
On face value, that seems to suggest that Heinemann’s contract cannot be nullified. However, it is well known that European teams often release statements saying, “Player X has been signed subject to a medical.” The disconnect is likely in the word ‘contract’ here. From my reading of the situation, in Europe, those players don’t sign contracts until their medicals are completed. Whereas, in the Heinemann case, the contract was signed (and the player was announced) at least two months before questions about his fitness emerged.
In other words, since Heinemann seemingly possessed an executed contract, he is protected by FIFA statute 18 (4).
What remains unknown is if FIFA would actually intervene in this situation.
What remediation options does Heinemann have?
Statute 15 in the USL player contract explains the steps involved in ‘dispute resolution’ available to Tommy Heinemann:
Heinemann must write to USL explaining details of the issue. The league will then send the complaint to FC Cincinnati who will have three days to respond. This response will then be shared with Heinemann who will respond within two days. Finally, FC Cincinnati will be given another chance for clarification within two days.
Based on these arguments, USL will make its decision.
If Heinemann or FC Cincinnati is unhappy with USL’s decision, they can (within seven days) serve notice demanding binding arbitration in Ohio.
Finally, if both sides are still unhappy, the aggrieved party can file a traditional lawsuit.
FC Cincinnati supporters are also entitled to ask – what would FC Cincinnati gain from terminating the contract of a player prematurely? It is a fair question.
Finally, also unclear are the steps for appeal and possible remediation as a result of appeal.
At this point, there are more questions than answers to the Tommy Heinemann story.
Soc Takes reached out to FC Cincinnati for comment on the story. A spokesperson directed SocTakes to the club press release and recommended an analysis written by The Enquirer. Soc Takes was not provided with comment by either the USL or Heinemann’s agent at the time of publishing.
Final thoughts
While there are some key questions that remain unanswered…
1. Did Heinemann/his agent know about and hide a pre-existing injury?
2. When was the medical conducted?
3. Are there other pertinent clauses that our analysis has missed? It is important to note that we have not seen a copy of Tommy Heinemann’s contract; it is possible that clauses exist that absolve FC Cincinnati of any blame.
…from this author’s analysis of the situation, outside of being able to prove that Heinemann knew of his pre-existing injury, FC Cincinnati is in the wrong here. The contract clearly states that medicals are expected before execution of a contract. That, may yet, be the most damning clause.
From a larger perspective, USL’s decision may yet bring into question the sanctity of all USL player contracts.
And that is a situation the league will want to avoid.
Follow Nipun on Twitter: @NipunChopra7.
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