FIFA - Decisión disputa Novak 17082023

REF. FPSD-10005

Decision of the Dispute Resolution Chamber passed on 17 August 2023 regarding an employment-related dispute concerning the player Filip Novak

COMPOSITION:

Frans de Weger (the Netherlands), Chairperson Tomislav Kasalo (Croatia), member Dana Mohamed Al-Noaimi (Qatar), member

CLAIMANT:

Filip Novak, Czech Republic Represented by Nils Baumgarten

RESPONDENT:

Al Jazira, United Arab Emirates pg. 2

REF. FPSD-10005

I. Facts of the case

1. On 27 September 2022, the Czech player, Filip Novak (hereinafter: Claimant or player) and the Emirati club, Al Jazira (hereinafter: club or Respondent) concluded an employment contract (hereinafter: contract) valid as from 27 September 2022 until 30 June 2023.

2. According to the contract, the Respondent undertook to pay the Claimant a total net salary of USD 758,000 to be paid as follows: - “An amount of 84,200 USD (Eighty-Four Thousand and Two Hundred US Dollars only) to be paid as an advance payment from the Player's Salary within Fifteen (15) days of signing this Contract. - An amount of 673,800 USD (Six Hundred and Seventy-Three Thousand and Eight Hundred) US Dollars only) to be paid to the Player on an equal monthly instalment - by the end of each calendar month, starting in October 2022 throughout the Contract's Term (9 times till June

2023).”

3. According to the Claimant, the Respondent decided to deregister him without providing any reasons.

4. On 24 February 2023, the Claimant requested “the renewal of his registration with the UAE Football Federation and the UAE Pro League until 27th February 2023”.

5. On 27 February 2023, the Respondent sent a letter to the Claimant regarding his

deregistration, inter alia, indicating the following: - “that he was aware of the deregistration as it was communicated to him on 19 January 2023, then 07 February 2023, and was executed on 8 February 2023. - the Claimant, was never subject to any limitations whatsoever by Al Jazira FC. In fact, he was training with the first team, participating in social events organized by Al Jazira FC Partners and enjoying being a player of Al Jazira FC without any restrictions or limitations of treatments. - is not in a position to comply with your request and to re-register Mr. Novak in the first team squad since (i) the quota of the foreign players is full, and (ii) the winter transfer window is closed. The only way to re-register Mr. Novak, will be through article 7 of the UAEFA Circular no 1, if any of Al Jazira FC’s foreign players gets a long injury that requires to be replaced.”

6. On 2 March 2023, the Claimant requested again the renewal of the registration with the UAE Football Federation and the UAE Pro League until 7 March 2023.

7. Following this request letter by the Claimant the signatory and the legal department of the Respondent held a video call and discussed the situation and options to solve the situation amicably.

8. On 18 March 2023, the Claimant again requested a renewal of the registration until 25

March 2023 or a submission of a reasonable settlement offer. pg. 3

REF. FPSD-10005

9. On 30 March 2023, the Respondent held another video-call with the Respondent to reach an amicable settlement, “unfortunately, the Respondent was not really interested in an amicable settlement and informed the signatory, that the Claimant has only two options: a) to conclude a termination agreement with the payment of the agreed salaries until 30th June 2023 b) to stay with the Respondent until the end of the contract term and to receive the salaries in

accordance with the contract”.

10. The Claimant did not terminate his contract, as “a transfer would have been possible only to very few leagues and federations and only with very big disadvantages of the Claimant for the future continuation of his career”.

11. The Claimant confirmed that he was still employed with the Respondent and did not terminate his contract.

II. Proceedings before FIFA

12. On 22 April 2023, the Claimant filed the claim at hand before FIFA. A brief summary of the position of the parties is detailed in continuation.

a. Position of the Claimant

13. According to the Claimant, the “Respondent unilaterally decided to de-register the Claimant to be able to register another international player for the professional team of the Respondent.

According to the FIFA DRC and CAS jurisprudence the unilateral deregistration of a player without any reason by the employer/club is a heavy breach of the obligations of a club and gives the player the right for a unilateral termination with just cause”.

14. The requests for relief of the Claimant, were the following: - “that the unilateral and unreasoned deregistration by the Claimant in February 2023 is a breach of the contractual obligations of the employment agreement between the Respondent and the Claimant and of the FIFA-Statute concerning the Status and Transfer of Players - to sentence the Respondent to pay a compensation payment amounting to at least 505,350 USD

(in words: five hundred three thousand three hundred fifty US-Dollars) to the Claimant for the breach of the contractual obligations and FIFA regulations to compensate the damages for the professional career and financial damages caused by the unreasoned deregistration - to sentence the Respondent to pay the legal cost of the case as the breach of the contract by the Respondent caused the FIFA proceeding and legal fees for the Claimant.” pg. 4

REF. FPSD-10005

b. Position of the Respondent

15. According to the Respondent, there are “no contractual breaches by the Respondent in the

matter in hand and it disagrees that deregistration of the Claimant consists, ipso facto, a breach to the contractual relationship between the Parties, due to the fact that the Player is still under a valid and ongoing employment contract with the Respondent until 30 June 2023; no unilateral termination of the Contract by one of the Parties to this Agreement until date has taken place”.

16. In this context, the Respondent is of opinion that: ”(i) the Claimant is still training with the team and the Parties are executing their reciprocal obligations under the Contract and until its term, (ii) The Claimant is receiving his monthly salaries on time same as his fellow teammates,

(iii) The Claimant did not complain about the situation when the initial meetings were held with the Respondent (iv) The Claimant has only filed his claim on 22 April 2023, i.e. approximately two months and three weeks after the deregistration occurred”.

17. Moreover, the Respondent stated that the Claimant is not entitled to request financial compensation under art. 17 of the RSTP as he continued executing his contractual obligations even after filing the claim before FIFA Tribunal, still receiving his salaries from the Respondent on time until today. Therefore, according to the Respondent, “the request of the Claimant to seek a financial compensation under Article 17 of the FIFA RSTP enforced in not founded, groundless and must be dismissed”.

18. Furthermore, the club argued that the Claimant “was unable to prove any existent or real financial damages he indeed suffered or is currently suffering from. In this respect, it is the Respondent position that those allegations are unproven and unsupported by material evidence and therefore are groundless and must be dismissed”.

19. The requests for relief of the Respondent, were the following:

(a) “To rule that the Contract of the Claimant is not unilaterally terminated by either of the Parties and therefore the Claimant has no grounds for his claim. (b) To rule that the Claimant is not entitled for any financial compensation whatsoever and mainly

any financial compensation under Article 17 of FIFA RSTP. (c) To dismiss the Claim of Mr Novak and all the requests made by the Claimant. d. To rule that the Claimant shall bear all the cost and expenses related to this proceeding, if any and to pay the amount of 3,000 CHF as a contribution toward legal fees to Al Jazira FC.” pg. 5

REF. FPSD-10005

III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

20. 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 22 April 2023 and submitted for decision on 17 August 2023. Taking into account the wording of art. 34 of the March 2020 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.

21. 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 an Emirati club.

22. 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 22 April 2023, the October 2022 edition

of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance. b. Burden of proof

23. 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

24. 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. 6

REF. FPSD-10005

1. Main legal discussion and considerations

25. The foregoing having been established; the Chamber moved on to the substance of the matter and recalled that the parties concluded an employment contract on 27 September 2022, valid as from the aforesaid date until 30 June 2023, and subsequently that the Claimant was deregistered by the Respondent in and around 8 February 2023.

26. In this context, the Chamber took note of the fact that the main point of controversy relates to the circumstances surrounding the deregistration of the Claimant.

27. The Chamber firstly addressed the circumstances relating to the de-registration of the Claimant and remarked that on analysis of the documentation and information on file, a written document relating to the terms of the deregistration of the Claimant was not concluded between the parties, hence in this regard it could not establish the intended

duration of the said deregistration.

28. Moreover, on analysis of the documentation on file the Chamber observed that the parties additionally exchanged correspondence regarding a possible amicable settlement relating to the deregistration which was never reached.

29. The Chamber further noted that the Claimant did not terminate his contract with the Respondent after he became aware of his deregistration, and furthermore continued to receive his salary as agreed to in the contract and reportedly continued his training with the Respondent.

30. As a general principle, the members of the Chamber considered it important to point out, as has been previously sustained by the DRC and considered to be well-established jurisprudence, that among a player’s fundamental rights under an employment contract, is not only his right to a timely payment of his remuneration, but also his right to access training and to be given the possibility to compete with his fellow teammates in the team’s official matches.

31. Having the above in mind, the Chamber established that the “deregistration” of a player could in principle constitute a breach of contract since it de facto prevents a player from being eligible to play for his club and that the Claimant could have possibly terminated the contract based on such circumstances.

32. Notwithstanding the above, in casu, and in view of the fact that (a) the Claimant was still training with the Respondent, (b) he was still receiving his monthly salary during the period of deregistration and, what is more, (c) he did not terminate his contract, the Chamber established that the Claimant had no legal interest to request declaratory relief. pg. 7

REF. FPSD-10005

33. In view of the above, the Chamber concluded that there is no legal basis to award compensation for breach of contract to the Claimant in accordance with art. 17 of the

Regulations.

34. As a result of the above, the DRC decided to reject the claim of the Claimant.

d. Costs

35. 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.

36. 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.

37. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any of the parties. pg. 8

REF. FPSD-10005

Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Filip Novak, is rejected.

2. This decision is rendered without costs.

For the Football Tribunal: Emilio García Silvero Chief Legal & Compliance Officer pg. 9

REF. FPSD-10005

NOTE RELATED TO THE APPEAL PROCEDURE: According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this decision.

NOTE RELATED TO THE PUBLICATION: FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a party within five days of the notification of the motivated decision, to publish an anonymised or a redacted version (cf. article 17 of the Procedural Rules Governing the Football

Tribunal).

CONTACT INFORMATION

Fédération Internationale de Football Association FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland www.fifa.com | legal.fifa.com | psdfifa@fifa.org | T: +41 (0)43 222 7777 pg. 10