Etzaz Hussain v. FC Astana, Fédération Internationale de Football Association (FIFA)

II. FACTUAL BACKGROUND

4. Below is a summary of the main relevant facts and allegations based on the Parties’ submissions and allegations. Most of such facts are in fact disputed by the Parties. Additional facts and allegations may be set out, where relevant, in connection with the legal discussion that follows. Although the Panel has considered all the facts, allegations, legal arguments and evidence submitted by the Parties in the present proceedings, it refers in this Award only to the submissions and evidence it considers necessary to explain its reasoning.

5. According to the Appellant, during a meeting that was held in Astana, Kazakhstan, on 30 September 2016, the latter signed an employment contract (the “Employment Contract”) with the First Respondent valid as from 1 January 2017 until 31 December 2019. In accordance with this Employment Contract, the Appellant was entitled to receive a monthly remuneration of EUR 41,500.

6. In addition, according to the Appellant, on the same date, i.e. 30 September 2016, he signed with the First Respondent two side agreements, which were attached as annexes to the Employment Contract. Pursuant to the first side agreement (Annex I), the Appellant was entitled to receive EUR 150,000, to be paid in three equal instalments on 30 March 2017, 30 March 2018 and 30 March 2019. Pursuant to the second side agreement (Annex II), the Appellant was entitled to receive EUR 50,000 on 30 October 2016. According to the Appellant, it was however agreed that this latter payment would be postponed until the actual start of the Employment Contract in January 2017.

7. In addition, according to the Appellant, a representation contract was signed on the same day between the First Respondent and the Player’s agent, Mr Jim Solbakken, who was present at the meeting.

8. According to the Appellant, the above-mentioned contracts, in particular his Employment Contract and its annexes, were signed by Mr Sayan Khamitzhanov in his capacity of General Manager of the First Respondent at the time of the relevant events.

9. The First Respondent denies having signed any contract with the Appellant and/or the Player’s agent.

10. On 7 October 2016, the Appellant signed an employment contract with the Croatian football club NK Rudeš (“Rudeš”) covering the period between 7 October 2016 and 15 June 2017 (the “Rudeš Contract”). As a result, in October 2016, i.e. after the signature of the Employment Contract with the First Respondent, the Appellant registered with Rudeš. According to the Appellant, he registered with Rudeš upon invitation to do so from the First Respondent, in order for the Appellant to continue training before the start of the Employment Contract with the First Respondent on 1 January 2017.

11. The Appellant played four matches with Rudeš between October and November 2016.

12. On 12 December 2016, the Rudeš Contract was terminated.

13. On 16 January 2017, the Appellant’s counsel sent to the First Respondent a formal notice, inviting it to “take immediate steps to remedy its breaches of contract in full, including but not limited to: i) registering the Employment Contract with the [Professional Football League of Kazakhstan]; ii) taking all necessary steps to ensure the Player is registered with the [Football Federation of Kazakhstan]; and iii) making arrangements for the Player to join the other members of the Astana first team on the Pre-season Tour”, and informing the First Respondent that “in the absence of such confirmation (…) the Player will have no option but to enforce the terms of the Employment Contract against Astana before the competent body”.

14. In the absence of any reaction from the First Respondent, the Appellant’s counsel sent a second formal notice to the First Respondent on 23 January 2017, granting it a 48-hour deadline to provide him “with the details of the schedule for the remainder of Astana’s pre-season tour (…) and (…) make arrangements for him to travel to join the rest of Astana’s squad in Dubai immediately”, and informing the First Respondent that in the absence of receipt of the above, he “will have no option but to take action before FIFA, including requesting the imposition of Sporting Sanctions on Astana for its unilateral termination of the Employment Contract without just cause”.

15. On 30 January 2017, the Appellant’s counsel sent a last formal notice to the First Respondent informing him that, in the absence of any confirmation within the next 24 hours that the First Respondent “intends to perform its obligations under the Employment Contract with immediate effect”, the Appellant will “take action before FIFA to recover damages and to request the imposition of Sporting Sanctions on Astana in accordance with Article 17 of the FIFA Regulations on the Status and Transfer of Players” and “seek employment opportunities with other football clubs”.

16. On 14 February 2017, in the absence of any reaction by the Club to the notices sent, the Appellant filed a claim against the First Respondent before the FIFA Dispute Resolution Chamber (the “FIFA DRC”) requesting payment for a total amount of EUR 1,544,000, corresponding to the compensation for the loss of income as consequence of the First Respondent’s unilateral breach of the Employment Contract. In addition, the Appellant requested to be awarded interests on the claimed amount, and that the First Respondent be sanctioned and ordered to pay the procedural costs.

17. On 24 August 2018, the FIFA DRC issued a decision (the “Appealed Decision”) holding that: “1. The claim of the Claimant, Etzaz Hussain, is rejected”.

18. The grounds for the Appealed Decision were communicated to the Appellant on 16 November 2018, indicating in essence that: “[I]t was up to the [Appellant] to prove the existence of the employment contract on the basis of which compensation for breach of contract by the [First] Respondent is claimed. (…). [D]espite having been invited to do so, the [Appellant] did not provide the relevant employment contract in its original form signed by the hand of the parties. On account of these considerations, (…) the fact that the [Appellant] had only submitted a copy of the disputed contract was insufficient to establish the existence of the alleged contractual relationship. (…) For the sake of completeness, (…) the signature of Mr. Khamitzhanov on the disputed document looks rather different than the signature on other documents provided during the course of the proceedings as well as documents contained in the Transfer Matching System. (…) Furthermore, (…) the side agreement does not contain the essential element of the signature of both the employer and the employee, as a result of which such document cannot be considered as valid and binding upon the parties. (…) [T]he members of the Chamber had to conclude that the documents presented by the [Appellant] did not prove beyond doubt that the [First] Respondent and the [Appellant] had validly entered into an employment contract. (…) As a consequence, (…) there was no possibility for the Chamber to enter into the question whether or not such alleged employment contract had been breached by the [First] Respondent”.

III. PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT

19. On 10 December 2018, in accordance with Article R47 of the Code of Sports-related Arbitration (2017 edition) (the “CAS Code”), the Appellant filed his Statement of Appeal against the Club and FIFA with the Court of Arbitration for Sport (the “CAS”) challenging the Appealed Decision. In his Statement of Appeal the Appellant appointed as arbitrator Mr Mika Palmgren, Attorney-at-law in Turku, Finland.

20. On 17 December 2018, FIFA requested the CAS Court Office to be excluded from the present proceedings in light of the fact that they “relate to a dispute between the Appellant and the club FC Astana (the First Respondent) in connection with the execution of a contract signed by the Appellant and the First Respondent” and “that FIFA (…) acted in the matter at stake as the competent deciding body of the first instance and was not a party to the dispute”. Moreover, “(…) from the Appellant’s statement of appeal it would appear that the only reason for which the Appellant has called FIFA as a party in the present procedure is that the said player is requesting the imposition of sporting sanctions on the First Respondent”. FIFA therefore informed the CAS Court Office: “we reserve our right to claim against the Appellant for the legal costs incurred by FIFA as a consequence of the unnecessary involvement in the present procedure”.

21. On 20 December 2018, the Appellant informed the CAS Court Office that “FIFA is correct that the reason it is called as a party in the proceedings is because the Appellant is seeking the imposition of sporting sanctions” and that “we understand it is well-established in CAS jurisprudence that if an appellant does not name FIFA as a party to an appeal, then the CAS has no power to rule on the imposition of sporting sanctions”. The Appellant concluded that “the CAS should have the ability to make determinations in this regard and if this can only be achieved by FIFA being named/ involved in the proceedings, then the

Appellant does not agree to FIFA’s request to be excluded. If, however, we have misunderstood the position or FIFA confirms that the CAS has the power to impose sporting sanctions even where FIFA is excluded from the proceedings, then the Appellant is happy to reconsider his position”.

22. On 7 January 2019, the Appellant filed his Appeal Brief with the CAS Court Office, pursuant to Article R51 of the CAS Code.

23. On 8 January 2019, the CAS Court Office invited the Respondents to file their Answers.

24. On 11 January 2019, the Second Respondent informed the CAS Court Office that, pursuant to Article R55 of the CAS Code, it wished the deadline to file its Answer to be fixed once the Appellant paid its share of the advance of costs, and that it agreed to the First Respondent’s proposal to appoint Dr Anna Bordiugova, Attorney-at-law in Kyiv, Ukraine, as arbitrator.

25. On 14 January 2019, the First Respondent confirmed that it agreed to nominate Dr Bordiugova as arbitrator, jointly with the Second Respondent.

26. On 31 January 2019, the Appellant informed the CAS Court Office that he had paid the advance of costs.

27. On 1 February 2019, the CAS Court Office invited the Second Respondent to file its Answer within twenty days upon receipt of its letter and that the deadline for the First Respondent to file its Answer had remained 20 days from the receipt of the CAS Court Office’s letter of 8 January 2019.

28. On 8 February 2019, the CAS Court Office acknowledged receipt of the First Respondent’s Answer filed on 4 February 2019, pursuant to Article R55 of the CAS Code.

29. On 19 February 2019, pursuant to Article R54 of the CAS Code, the CAS Court Office, on behalf of the President of the Appeals Arbitration Division, informed the Parties that the Panel appointed to decide the present case was constituted as follows: President: Prof Luigi Fumagalli, Attorney-at-Law, Milan, Italy Arbitrators: Mr Mika Palmgren, Attorney-at-Law, Turku, Finland Dr Anna Bordiugova, Attorney-at-Law, Kyiv, Ukraine

30. On 26 February 2019, the Second Respondent filed its Answer pursuant to Article R55 of the CAS Code.

31. On 27 February 2019, the CAS Court invited the Parties to indicate whether they wished a hearing to be held in this matter.

32. On 5 March 2019, the Appellant confirmed that he preferred that a hearing be held.

33. On 6 March 2019, the First Respondent informed the CAS Court Office that it believed that the written submissions would suffice for the Panel to issue an award, but that it would

participate in the hearing if the Panel would decide to convene such hearing. The Second Respondent did not provide its position in this regard.

34. On 8 March 2019, the CAS Court Office informed the Parties that the Panel had decided to hold a hearing in this matter.

35. On 28 March 2019, after having consulted the Parties, the CAS Court Office confirmed that a hearing would be held on 11 June 2019 in Lausanne, Switzerland.

36. On 3 April 2019, the CAS Court Office informed the Parties that Ms Stéphanie De Dycker, Attorney-at-law in Signy, Switzerland, had been appointed as ad hoc Clerk to assist the Panel in the present matter.

37. On 24 May 2019, the Appellant requested the production of documents from the First Respondent and invited the Panel “if it deems it appropriate, to exercise its power under Article 44.2 of the CAS Code to summon Mr. Khamitzhanov to the hearing for examination”.

38. On 31 May 2019, the First Respondent sent copies of documents as requested by the Appellant but informed the CAS Court Office that it was not in a position to confirm, at that time, the participation of Mr Khamitzhanov at the hearing.

39. On 5 June 2019, the CAS Court Office sent to the Parties an Order of Procedure, which the Parties returned duly signed to the CAS Court Office on 6, 7 and 9 June 2019.

40. On 9 June 2019, the Appellant sent to the CAS Court Office new pieces of evidence requesting their admission into the case file.

41. A hearing was held in Lausanne on 11 June 2019. In addition to the Panel, Ms Kendra Magraw, CAS Counsel, and the ad hoc Clerk, the following persons attended the hearing: For the Appellant: Mr Etzaz Hussein, Appellant Mr Stuart Baird and Mr Matthew Bennett, Counsels For the First Respondent: Mr Paul Anthony Ashworth, Executive Director Mr Gazinur Alimov, Head of Legal Department Ms Daria Solenik, Interpreter For the Second Respondent: Mr Mario Flores Chemor and Ms Imen Larabi, Legal Counsels

42. At the outset of the hearing, the Parties confirmed that they had no objection to the constitution and composition of the Panel. The Panel informed the Parties that, in light of their disagreement, it had decided to accept only one of the additional pieces of evidence submitted by the Appellant on 9 June 2019, namely an extract of legal doctrine, because it was publicly available and had already been cited in the Appeal Brief.

43. The Panel heard evidence from the following persons, in order of appearance: i. Mr Jim Solbakken: a football agent for over 20 years, and who had known the

Appellant since the Appellant was 16–years-old. In September 2016, he entered into contact with Mr Sergey Barkovskyy, whom he knew as the First Respondent’s scout, and arranged a meeting with the Appellant and Mr Barkovskyy on 23 September 2016. Mr Barkovskyy confirmed the interest of the Club in registering the Appellant at the next available opportunity. After receiving a formal employment offer for the Appellant from the First Respondent through Mr Barkovskyy, he travelled with the Appellant to Astana on 28 September 2016 in view of finalising an employment contract with the Club. He and the Appellant had productive meetings with Mr Barkovskyy and the First Respondent’s Sporting Director, Mr Kultaeff, and, on 30 September 2016, they signed the Employment Contract in presence of the General Manager of the First Respondent, Mr Sayan Khamitzhanov. During their visit in Astana, it was agreed that the Appellant would join on a temporary basis Rudeš, which was presented to him as a partner club of the First Respondent, so as to continue training before the start of the Employment Contract on 1 January 2017. He returned to Oslo on 1 October 2016 and the Appellant stayed in Astana for a few more days before travelling to Croatia to be registered with Rudeš. Thereafter, he assisted the Appellant and the First Respondent to complete the Appellant’s temporary registration with Rudeš. As the start date of the Employment Contract approached, he contacted Mr Barkovskyy to enquire about the situation and learned that there was an internal dispute within the First Respondent between its officials, including Mr Khamitzhanov, and the coaches about whether or not the Appellant was wanted on the team; ii. Mr Etzaz Hussain: heard by the Panel as a witness, he confirmed the facts regarding the signature of the Employment Contract, as evidenced by Mr Solbakken’s witness examination. He added that at the hotel in Astana, he underwent a medical examination by the Head Physiotherapist of the Club, which included an examination of his blood pressure and of his joints; iii. Ms Fiona Marsh M.Sc.: an expert in the scientific examination of documents and handwriting, who compared the signatures of Mr Khamitzhanov on the Employment Contract to the signatures of Mr Khamitzhanov on some reference documents (“known signatures”) in view of determining whether the same person who made the

reference signatures (“known signatures”) wrote the signatures on the Employment Contract (“questioned signatures”). Ms Marsh declared that she had found that there were both similarities and differences between the known and the questioned signatures, and that either: (i) the Employment Contract was signed by the same person who wrote the known signatures; or (ii) the questioned signatures are attempts to copy the normal signature of Mr Khamitzhanov by someone familiar with his signature. It therefore confirmed that it was a real possibility that the signature on the Employment Contract was genuine signature of Mr Khamitzhanov. In any event, Ms Marsh would not qualify the differences between the signature on the Employment Contract and the known signatures as manifest differences.

44. All witnesses were invited by the President of the Panel to tell the truth subject to the sanctions of perjury under Swiss law. The Parties and the Panel had the opportunity to examine and cross-examine the witnesses.

45. The Parties then had full opportunity to present their case, submit their arguments and answer the questions posed by the Panel. At the end of the hearing, the Parties confirmed that they were satisfied with the hearing and that their right to be heard was respected.

IV. THE PARTIES’ SUBMISSIONS

46. The following summary of the Parties’ positions is illustrative only and does not necessarily comprise each and every contention put forward by the Parties. The Panel, however, has carefully considered all the submissions made by the Parties, even if no explicit reference is made in what immediately follows.

47. The Appellant’s submissions may be summarized as follows:

• In light of a series of factual elements evidenced by the case file (i.e.: the employment offer by Mr Barkovskyy, the alleged First Respondent’s scout, to the Appellant on 26 September 2016; the communications from other agents confirming the First Respondent’s interest in the Appellant; the Appellant and his agent’s visit to Astana on 29-30 September 2016; their clear and detailed recollection of their meetings in Astana, including with Mr Khamitzhanov at the Revolving Restaurant at the Beijing Palace Soluxe Hotel, where, according to the Appellant, the Employment Contract was signed; their witness statements in this respect; the expert opinion on the signature of the Employment Contract; the email and WhatsApp exchanges with the alleged First Respondent’s scout covering inter alia travel arrangements and the subsequent release of the Appellant’s International Transfer Certificate from his previous club; the recordings of conversations between Mr Solbakken and the alleged First Respondent’s scout in January 2017), the Employment Contract is presumed to be valid and this is sufficient for the Panel to find in his favour, unless the First Respondent can prove otherwise. In order to rebut the presumption of validity of the Employment Contract, the First Respondent should demonstrate beyond reasonable doubt or, alternatively, to the Panel’s comfortable satisfaction, that it is invalid. In particular, the presumption of validity of the Employment Contract is not rebutted by the mere allegation of the First Respondent that Mr Khamitzhanov did not sign it and that, as a result, the copy of the Employment Contract on file is a falsified document. On the contrary, according to the case law of the FIFA DRC, the authenticity of Mr Khamitzhanov’s signature shall be presumed until evidence to the contrary is produced, unless evident and manifest differences between the signatures at stake can be ascertained.

• In light of the above, the independent handwriting expertise submitted by Ms Marsch supports the fact that Mr Khamitzhanov, the General Manager of the First Respondent at the time, did sign the Employment Contract and, in any case, that there is no evident and manifest difference between the signatures she examined. In addition, the use of an old or forged seal does not per se invalidate the Employment Contract and there was no reason to doubt that the individuals, with whom the Appellant and his agent were in contact, validly represented the First Respondent or that the “.gmail” address that was used to send the contractual documents to the Appellant was the true email address of the First Respondent.

• As a result, the First Respondent unilaterally terminated the Employment Contract and therefore is liable to pay compensation to the Appellant and is subject to sporting sanctions, in accordance with Article 17 of the FIFA Regulations on the Status and Transfer of Players (the “FIFA RSTP”).

48. The Appellant therefore requested the Panel to decide as follows: I. “The Appeal is admissible and well-founded; and II. The Decision is annulled and replaced with a new decision which declares that: (a) the Employment Contract is valid; (b) the First Respondent unilaterally breached the Employment Contract without just cause; (c) the First Respondent is liable to pay compensation to the Appellant as a consequence of the First Respondent’s unilateral breach of the Employment Contract; (d) interest is payable on such compensation; (e) the First Respondent shall be banned from registering players, either nationally or internationally, for two entire consecutive registration periods pursuant to Article 17 (4) of the FIFA Regulations on the Status and Transfer of Players; and III. the First Respondent shall pay in full, or in the alternative, a contribution towards: i.) the costs and expenses, including the Appellant’s legal costs and expenses, pertaining to these appeal proceedings before the CAS; and ii.) the costs and expenses, including the Appellant’s legal costs and expenses, pertaining to the proceedings before the DRC; and IV. the Appellant is not liable to pay procedural costs awarded against him in the Decision”.

49. The First Respondent’s submissions may be summarized as follows:

• It never concluded any employment contract with the Appellant, on the date of 30 September 2016 or any other date. The copy of Employment Contract submitted by the Appellant contains signatures that are similar to the signature of Mr Khamitzhanov but are not true signatures of its former General Manager. Moreover, the persons with whom the Appellant and his agent were in contact were not authorized representatives of the First Respondent.

• The alleged contract and other agreements were sent from the personal address of one of the contact persons of the Appellant, it contained a seal impression that was no longer valid, and the Appellant could not have undergone a normal medical assessment at the hotel (where the Player was staying when in Astana), because for a due medical appraisal of a professional player appropriate facilities are required.

• As admitted by the Appellant, after signing the alleged Employment Contract with the First Respondent, the Appellant signed another employment contract with Rudeš, which was valid as from the date of signature, on 7 October 2016, until 15 June 2017. Therefore, the Employment Contract with the First Respondent, even if the Panel considers it valid – quod non –, was terminated by the Appellant’s signature of the

employment contract with Rudeš, in accordance with Article 18 paragraph 5 of the FIFA RSTP.

50. The First Respondent therefore requests the Panel to decide as follows: “dismiss in total the Appeal Brief as ill-grounded with respect to both, the facts and the law and issue. (…) and (…) order the Appellant to pay [the costs of legal representation and legal assistance], in an amount to be determined at the discretion of the CAS but no less than CHF 50’000”.

51. The Second Respondent’s submissions may be summarized as follows:

• With respect to the requests made under sections II (a) to (d) of the Appellant’s prayers for relief, the Second Respondent lacks standing to be sued in accordance with Article 75 of the Swiss Civil Code. Indeed, since these requests concern a contractual dispute between the Player and the Club, for which the role of the FIFA was that of an adjudicative first-instance body rather than a party to the dispute, the Second Respondent is not personally obliged by the disputed rights.

• In addition, with respect to the request by the Appellant to impose sporting sanctions upon the First Respondent, in accordance with Article 17 paragraph 4 of the RSTP, the Appellant lacks standing to appeal, because he has no legitimate interest in requesting the imposition of sporting sanctions.

• In any event, the Appealed Decision is correct, as it follows the jurisprudence of the FIFA DRC and its procedural rules.

52. The Second Respondent therefore requests the Panel to decide as follows: “In light of all of the above considerations, we request for the present appeal against FIFA to be rejected and the relevant decision to be confirmed in its entirety. All costs related to the present procedure as well as the legal expenses of FIFA shall be borne by the Appellant”.