FIFA - Decisión disputa Hasek 21092023

REF. FPSD-9232

Decision of the Dispute Resolution Chamber passed on 21 September 2023 regarding an employment-related dispute concerning the player Martin

Hasek COMPOSITION: Frans de Weger (Netherlands) , Chairperson Michele Colucci (Italy) , member Dana Mohamed Al-Noaimi (Qatar) , member

CLAIMANT/ COUNTER-RESPONDENT:

Buyuksehir Belediye Erzurumspor, Türkiye

RESPONDENT / COUNTER-CLAIMANT:

Martin Hasek, Czech Republic Represented by Mehmet Göktürk Aslan

INTERVENING PARTY:

Wisła Płock S.A., Poland pg. 2

REF. FPSD-9232

I. Facts of the case

1. On September 2021, the Turkish club, Erzurumspor FK (hereinafter: club or Claimant/ Counter-Respondent) and the Czech player, Martin Hasek (hereinafter: player or Respondent/Counter-Claimant) concluded an employment contract (hereinafter: contract) valid as from 3 September 2021 until 31 May 2023.

2. According to the contract, the Respondent undertook to pay the Claimant for the 2022/2023 season, a monthly salary of EUR 22,000 net.

3. Article 3.14 of the contract, stipulates: “In case of injury or other medical problems excluding emergency situations, the Player shall inform the Club and shall not receive any medical treatment without receiving Club’s written approval. If the Player goes to a doctor without receiving Club’s return approval and receive any written rest advice from that doctor, in order the Club recognize this written race advice, the Player shall also go to the doctor which the Club wishes him to visit. Should the Player receive such advice without Club’s approval and refuses to go to doctor which Club directs him to then the Player shall be deemed to have bad faith and the Club has the right not to recognize the

given rest advice. In such case, the Player is obliged to pursue his services to the Club, failing to do so shall be deemed as a breach to the employment contract.”

4. According to the club, the player “did not participate on the Club's training without any excuse or valid reason from the date of 03.01.2023 until the date of termination and continued to breach his contractual liabilities.”

5. On 3 January 2023, the club sent a notice to the player, inter alia, stipulating the following: “Please be informed that you have breached the Article 3.8 of the Contract by not participating the training session and training camp of our Club which was held at Concorde De Luxe Resort Hotel on 3.01.2023 without any excuse although you have been informed about the date, place an hour of the training by the Club officials.

Within the scope of the investigation carried out by our Club, please be warned that the Club requests from you to submit your defense in writing to our Club within 2 (two) days following this notification, otherwise you will be deemed to have waived your right of defense. In the view of the foregoing, we urge you to participate in the training sessions and training camp of our Club within 2 days as from the date of this notification. Please be advised that in the event you fail to participate in the training sessions and training camp of our Club within the specified deadline, our Club reserves its right to initiate the necessary legal actions.” pg. 3

REF. FPSD-9232

6. On 3 January 2023, the representative of the player, sent the following email to the club: “We want to inform you about the illness of Martin that he won't allow him to be back in Erzurumspor. He sent you from his psychiatrist in his language, but we will send you in English soon.

The reason of this e-mail is to formally cancel the contract in the best way. The doctor is saying that he cannot travel back to Erzurum so let’s find a solution to finalize this.”

7. On 6 January 2023, the club sent a second notice to the player, inter alia, mentioning the following: “We would like to take attention to the relevant part of the article 3.14 of the contract is as follows: if the player goes to a doctor without receiving Club’s written approval and receive any written rest advice from that doctor, in order the Club recognize this written rest advice, the Player shall also go to the doctor which the Club wishes him to visit. Should the Player receive such advice without Club’s approval and refuses to go to doctor which Club directs you to then the player shall be deemed to have bad faith and the Club has the right not to recognize the given rest advice. In such case, the Players is obliged to pursue his services to the Club, failing to do so shall be deemed as a breach to the employment contract.” In accordance with the right granted to our Club and the liability of the Player by the abovementioned article of the Contract, we as the Club request from you to visit Dr. Suna Sogucak (Psychiatrist), who operates at Antalya Atatürk Devlet Hastanesi C Block 3rd floor Psychiatry policlinic, within 3 (three) days as from the date of this notice in order to receive medical treatment. Please be informed that if you refuse to receive medical treatment from the Doctor specified above then you shall be deemed to have bad faith and our Club will have the right not to recognize your sick note which you have sent to our Club via e-mail on 3.01.2023.

In the event that you fail to visit the Dr. Suna Sogucak within the specified deadline and in any case that you fail to participate in the training sessions and training camp of our Club within 7 (seven days) from the date of this notice, you shall be deemed to have seriously breached the Contract and our Club will have right to terminate the contract unilaterally with just cause.”

8. On 9 January 2023, the player sent an email to the club, mentioning the following:

“I have informed the club about visiting a doctor, specifically the club president at the personal meeting we have had in December, where I told him I will be visiting my psychiatrist and he agreed and did not have nothing against it (I also very honestly and openly told him about my problems, and he was showing a lot of compassion, understanding and support, which makes the current behavior of the club even more surprisingmore to that in the next paragraph). pg. 4

REF. FPSD-9232

I have also excused myself about not coming to the Concorde Hotel on 03.01.2023, as I wrote a message to the club translator on WhatsApp on 01.01.2023, where I have informed him about having another session with my psychiatrist. He has replied to that message that it is ok. Also, the club translator wrote into our official WhatsApp group, that "for special occasions, permissons to come back are given until 06.01.2023". So, given these facts, l consider this matter to be settled ... Even though I have informed the club about meeting a doctor, I am willing to meet Dr. Suna Sogucak as a gesture of good faith (unlike the clubs behavior, where there is no communication with me from the club except these formal emails written by a lawyer, which is a clear sign of bad faith, shown to a player with serious medical issues) in an online meeting. As I am strongly adviced by my psychiatrist to be doing the recovery at home, in a friendly and safe environment.”

9. On 19 January 2023, the club sent a final notice to the player, stating that, “to show our goodfaith and our effort to maintain the contractual stability, we, for the third and last time, give you a deadline of one more 7 (seven) days in addition to the all deadlines that we gave until this date. In any case that you fail to participate in the trainings and matches of our Club within 7

(seven) days as from the date of this notice, you shall be deemed to have seriously breached the Contract and our Club will have right to terminate the Contract with just cause since the continuation of the Contract will be absolutely unbearable.”

10. On 26 January 2023, the club terminated the contract with the player.

11. According to the information contained in the Transfer Matching System (TMS), the player on 28 February 2023, signed an employment contract with the Polish club, Wisla Plock S.A valid from 28 February until 30 June 2023, entitling him to a monthly salary of EUR 10,000.

II. Proceedings before FIFA

12. On 6 March 2023, the club filed the claim at hand before FIFA. A brief summary of the position of the parties is detailed in continuation.

a. Position of the Club

13. According to the club, the player has been in continued breach of contract, by not participating in trainings, moreover his absences was officially recorded by the club.

14. The club further argued that “maintaining the contractual stability was not anymore, a question for the Club and the continuation of the Contract has become unbearable within these conditions of serious breaches by the player.”

15. The requests for relief of the club, were the following: pg. 5

REF. FPSD-9232 - to find the claim admissible for consideration and resolution - to detect that the termination made by the Club is just cause - to apply a sporting sanction against the Respondent Player with the duration of six-month restriction on playing official matches - to make decision that the Player has to pay the compensation for breach of contract of with the amount of 110.000,00-EUR net b. Position of the player and counterclaim

16. In his reply, the player mentioned that until to the date of termination of the contract, the club failed to fully comply with its contractual financial obligations, it failed to fully pay his

salaries for the 2022/2023 football season.

17. On 25 January 2023, following the final notice of the club, the player sent the following email

to the club: “Hello, firstly, I did not refuse to come to trainings, I am unable to train, I have sent you a sick note on 03.01.2023. So you acussing me about being in bad faith is nothing but wrong. As I mentioned in my previous email, I am strongly advised by my psychiatrist to be doing my recovery at home in a friendly and safe environment. As the environment and life in general in the club Erzurumspor and the city Erzurum was, according to my psychiatrist a huge stressor and the cause of my problems, it is undisputable, that I cannot travel back until I am fully healed. Your claim about scientific impossibility of identification mental illness in an online meeting is nothing but wrong again. As I have discussed the matter with my psychiatrist, who told me it is a common thing for psychiatrists to do, as for example in Covid-19 times, lots of psychiatrists were working mostly online. You can also check the internet, online therapy is literally everywhere... So in conclusion, it is undisputable, that it is not only possible, but a pretty common thing to do. So I consider this matter to be settled. Again, even though I have informed the president about visiting my doctor, I am ready to show my good intentions once again and take part in the online videomeeting with the clubs psychiatrist. Unfortunately, I have to speak about clubs behavior. pg. 6

REF. FPSD-9232

After year and a half of my hard and good work for the club (check the running data in all the championship games, since I have joined the club), which was also the cause of my current problems, I would expect understanding and cooperation, not suspecting and threats, showing

the club is in bad faith. Which is very disappointing and sad. I have been nothing but open and honest, as I repeatedly spoke with the people working for the club, informing them about my problems, informing about video calls with my psychiatrist, my upcoming meeting with him etc...At the meeting with the club president, I have even offered a contract termination, so the club would not have to pay my future salaries anymore (the same was afterwards offered thru an email by my agent), putting myself at risk of being without job, which is nothing but another show of good intentions. Your claims about me not participating in trainings and matches and it being officially recorded. I have sent you a sick note on 03.01.2023. So I consider the matter to be settled”

18. The player indicated, that “following the start of the dispute between the Club and the Player, the player's health condition which was extremely confidential was shared by the club with local media institutions. The Czech press has made its news in their own country by quoting these news. In the related news, the media clearly states that The Player has a psychological problems.

This situation is clearly against the law, morality and all universal values.”

19. In this context, the player indicated that “these actions of the club caused indescribable damage to the football life of the player and lead to irreversible results.”

20. In conclusion, the player argued that the club, “which does not fulfill its obligations arising from the contract, it is clearly injudicial to ask the Player to fulfill his contractual obligations.”

21. The following relief was sought by the player: - to handle this matter by conducting a hearing; - dismissal of the claims of Erzurumspor F.K - to accept the claims of the Player Mr. Martin HASEK - to confirm that the unilateral termination of the employment agreement between the player and the club is without just cause - dismiss the club’s claim of 110.000-EUR compensation. - dismiss the club’s requests of impose of sporting sanctions for the player

• the Chamber to confirm that the club has to pay overdue total: 44.000-EUR with its interest from the actual payment day. (December and October Salaries subject to 22/23

Football season.) - the costs of the proceedings to be imposed upon the club. pg. 7

REF. FPSD-9232

c. Club’s reply to the counterclaim

22. In reply to the counterclaim, the club indicated the following: - “The Club has fulfilled all its contractual obligations throughout the Contract period and has shown its best efforts to maintain the contractual relationship established between the parties. - Due to the fact that the Player did not fulfil his obligations to the Club under the Contract in January 2023 in any way, the Player was not paid for January 2023 and finally the Contract was terminated with just cause. Moreover, considering that the January 2023 salary is due on the last day of the month according to the Contract and the Contract was terminated on 27 January 2023, it is clear that the player is not entitled to the relevant salary payment. - the Player did not make any statement regarding his non-participation in training and match program of the Club in January 2023, which was the reason for the unilateral termination of the Contract by the Club with just cause and only submitted a medical report as an annex. At this point, we would like to reiterate that the medical reports in question has no validity in the eyes of the Club and also should not be considered valid before your esteemed tribunal. Because, as we have stated in the 17th paragraph of our Statement of Claim, despite a doctor who has been advised and guided by the Club for the Player, the Player has not come back to Turkey and has refused the treatment under the supervision of the Club's doctor. - The Player signed an employment contract with Wisla Plock S.A., a football club affiliated to Poland Football Federation, after the Club unilaterally terminated the Contract and the Club submitted the Statement of Claim to your esteemed tribunal on 13 February 2023.

The well-known football site "Transfermarkt" shows that the Player joined Wisla Plock S.A. on 28 February 2023 - In accordance with the provision mentioned above and considering that the Contract was terminated with just cause by the Club and the Player signed a new employment agreement with Wisla Plock after the termination, it is clear that Wisla Plock should also be liable for the payment of the compensation in the amount of 110.000,00-EUR, which we have requested in our Statement of Claim. In addition to being responsible for the payment of the compensation, sporting sanctions should also be imposed on Wilsa Plock according to the Paragraph 4 of the Article 17 of RSTP.”

23. In conclusion, the club requested the following relief: “(i) To reject the counterclaim of the Player,

(ii) To find the claim of the Claimant Club admissible for consideration and resolution, (iii) To detect that the termination made by the Club is just cause, pg. 8

REF. FPSD-9232

(iv) To apply a sporting sanction against the Respondent Player with the duration of sixmonth restriction on playing official matches, (v) To make decision that the Player has to pay the compensation for breach of contract of with the amount of 110.000,00-EUR net, and also that the Club Wisla Plock be considered jointly and severally liable from the compensation, (vi) To apply a sporting sanction of transfer ban for two entire and consecutive registration periods against the Club Wisla Plock” d. Position of the Intervening Party

24. Despite being invited to do so, the new club of the player, failed to reply.

e. Additional Information as per TMS

25. On 28 February 2023, Wisła Płock S.A. entered a transfer instruction to permanently engage the player at its club.

26. On 1 March 2023, the Polish Football Association (PZPN) requested the ITC of the player from the Turkish Football Federation (TFF).

27. On 6 March 2023, PZPN submitted an exemption request to register the player.

28. On 30 March 2023, FIFA authorised the transfer under exceptional circumstances.

29. On 1 April 2023, TFF rejected the ITC request, on the basis that there has been no mutual agreement regarding early termination of the employment contract between the former club and the professional player.

30. On 4 April 2023, PZPN disputed the rejection of the ITC request, mentioning that the player signed a contract with our affiliated club - Wisła Płock. pg. 9

REF. FPSD-9232

III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

31. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) analysed whether it was competent to deal with the case at hand. In this respect, it took note that the present matter was presented to FIFA on 6 March 2023 and submitted for decision on 21 September 2023. Taking into account the wording of art. 34 of the March 2023 edition of the Procedural Rules Governing the Football Tribunal (hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.

32. Subsequently, the members of the Chamber referred to art. 2 par. 1 of the Procedural Rules and observed that in accordance with art. 23 par. 1 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players May 2023 edition), the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a Czech player and a Turkish club.

33. Subsequently, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1

and 2 of the Regulations on the Status and Transfer of Players (May 2023 edition), and considering that the present claim was lodged on 6 March 2023, the May 2023 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance. b. Burden of proof

34. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 13 par. 5 of the Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof. Likewise, the Chamber stressed the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which it may consider evidence not filed by the parties, including without limitation the evidence generated by or within the Transfer Matching System (TMS).

c. Merits of the dispute

35. Its competence and the applicable regulations having been established, the Chamber entered into the merits of the dispute. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. However, the Chamber emphasised that in the following considerations it will refer only to the facts, arguments and documentary evidence, which it considered pertinent for the assessment of the matter at hand. pg. 10

REF. FPSD-9232

1. Main legal discussion and considerations

36. The foregoing having been established, the Chamber moved to the substance of the matter, and noted that the case at hand pertains to a claim for compensation for breach of contract of the club against the player and a counterclaim of the player for outstanding remuneration and compensation for breach of contract against the club.

37. The Chamber took note that the club argued that it had just cause to terminate the contract due to the unauthorised absence of the player from 3 January until 26 January 2023 i.e., date of termination of the contract.

38. The DRC further noted that the player argued that club was aware that the reason for his

absence was due to his mental health condition. The DRC further observed that the player additionally claimed that the club failed to comply with its contractual financial obligations.

39. In this context, the Chamber acknowledged that its task was to determine whether or not the club, under the said circumstances, could validly terminate the contract with the player due to his absence.

40. As a starting point, the Chamber stressed that the mental health of players is just as important as their physical health, although not as much on display as physical injuries.

What is understood as common with regard to physical injuries, yet frequently overlooked in cases of psychological issues, is the duty of care owed to players by their respective clubs. As clubs are obliged to provide or arrange for treatment of physical injuries that occurred while performing employment contracts, the same standard of care must be applied in issues of a mental nature.

41. Against this background, the Chamber deemed it best to recall the circumstances of the matter at hand, and therefore took the following into consideration: - On 3 January 2023, following the absence of the player from training, the club issued a first notice, requesting the player to report to training within two days or to submit his reasons for absence; - On the same date the player’s representative informed the club that he is absent due to ill-health, submitting a report from his psychiatrist in the Czech language, which will eventually be provided in English; - On 6 January 2023, the club sent a second notice to the player reminding him of the provisions of article 3.14 of the contract and requesting him to report to the club’s psychiatrist within 3 days; - On 9 January 2023, the player replied to the notice of the club, informing it that he is willing to meet with the psychiatrist of the club; - On 19 January 2023, the club sent a third notice to the player, informing him that he has been in continuous breach of his contract and granting him a final deadline to continue to provide his service within 7 days; and

pg. 11 REF. FPSD-9232 - On 26 January 2023, the club terminated the contract.

42. In this respect, the Chamber in consideration of the above events, noted that the player did not provide any documentary evidence or corroborating documentation, proving that he had authorisation to be absent from the club between the period 3 January to 26 January 2023, however the Chamber noted that the player informed the club that he was absent due to his mental health condition on recommendation of his psychiatrist.

43. In this context, the Chamber noted that the player in his email to the club explained that his absence was due to his mental health and accordingly submitted a medical report in the Czech language, however failed to provide an English translation of the said certificate to the club.

44. Following the aforesaid, the Chamber noted that the club reminded the player of article 3.14 of the contract and requested him to meet the psychiatrist of the club which the player agreed to, however failed to comply with. In this regard, the Chamber held that by the aforesaid concession the club could have in good faith believed that the player was willing to cooperate, however he failed to adhere to this request and unilaterally decided to follow the recommendation of his personal psychiatrist.

45. Moreover, the Chamber noted that until the termination of the contract, i.e., 26 January 2023, the club communicated with the player on repeated occasions, explaining in detail its analysis of the situation while offering the player the opportunity to explain and/or justify his position.

46. The Chamber however highlighted that a club considering the option of terminating a contract with a player due to leaving the club without authorisation, should also respect the ultima ratio principle; in that less stringent disciplinary measures should be considered and applied first. In this regard, the club must first of all request the player to return to the club and set a reasonable deadline to do so. In casu, the Chamber noted that the deadlines provided by the club was rather short, the player was in the Czech Republic and the travel

arrangements for his return to Türkiye were not clearly established between the parties; as a matter of fact the club failed to arrange the flight tickets of the player for his return to Türkiye.

47. In continuation, the DRC mentioned that though the player was absent on account of his mental health following the recommendation from his personal psychiatrist (i) he had not been able to provide evidence demonstrating that he was authorised to be absent from the club between the period 3 January to 26 January 2023, (ii) he has breached article 3.14 of the contract (iii) moreover on analysis of the counterclaim of the player, he failed to address the allegations of the club and (iv) the medical report he submitted seems to be a dialog of the player’s visits to his medical practitioner and not an official medical certificate relating to his inability to provide his employment services as a result of his mental health. pg. 12

REF. FPSD-9232

48. Consequently, the Chamber held that considering the aforesaid, the player cannot exclusively rely on his mental health assessment as a reason not to return to the club, therefore he is not entitled to receive any compensation for breach of contract. ii. Consequences

49. Having stated the above the Chamber observed that the outstanding remuneration at the time of termination, coupled with the specific requests for relief of the player, are equivalent to two monthly salaries under the contract, amounting to EUR 44,000.

50. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the Chamber decided that the Respondent is liable to pay to the Claimant the amounts which were outstanding under the contract at the moment of the termination, i.e. EUR 44,000 (i.e. EUR 22,000 times 2).

51. In addition, taking into consideration the Claimant’s request as well as the constant practice of the Chamber in this regard, the latter decided to award the Claimant interest at the rate of 5% p.a. on the outstanding amounts as from the respective due dates until the date of

effective payment. iii. Compliance with monetary decisions

52. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24 par. 1 and 2 of the Regulations, which stipulate that, with its decision, the pertinent FIFA deciding body shall also rule on the consequences deriving from the failure of the concerned party to pay the relevant amounts of outstanding remuneration and/or compensation in due time.

53. In this regard, the DRC highlighted that, against clubs, the consequence of the failure to pay the relevant amounts in due time shall consist of a ban from registering any new players, either nationally or internationally, up until the due amounts are paid. The overall maximum duration of the registration ban shall be of up to three entire and consecutive registration periods.

54. Therefore, bearing in mind the above, the DRC decided that the Respondent must pay the full amount due (including all applicable interest) to the Claimant within 45 days of notification of the decision, failing which, at the request of the Claimant, a ban from registering any new players, either nationally or internationally, for the maximum duration of three entire and consecutive registration periods shall become immediately effective on the Respondent in accordance with art. 24 par. 2, 4, and 7 of the Regulations.

55. The Respondent shall make full payment (including all applicable interest) to the bank account provided by the Claimant in the Bank Account Registration Form, which is attached to the present decision. pg. 13

REF. FPSD-9232

56. The DRC recalled that the above-mentioned ban will be lifted immediately and prior to its complete serving upon payment of the due amounts, in accordance with art. 24 par. 8 of the Regulations.

d. Costs

57. The Chamber referred to art. 25 par. 1 of the Procedural Rules, according to which “Procedures are free of charge where at least one of the parties is a player, coach, football agent,

or match agent”. Accordingly, the Chamber decided that no procedural costs were to be imposed on the parties.

58. Likewise, and for the sake of completeness, the Chamber recalled the contents of art. 25 par. 8 of the Procedural Rules and decided that no procedural compensation shall be awarded in these proceedings.

59. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any of the parties. pg. 14

REF. FPSD-9232

Decision of the Dispute Resolution Chamber

1. The claim of the Claimant/Counter-Respondent, Erzurumspor FK, is rejected.

2. The claim of the Respondent/Counter-Claimant, Martin Hasek, is partially accepted.

3. The Claimant/Counter-Respondent, Erz