AEL Podosfairo Dimosia LTD v. Dossa Momade Omar Hassamo Junior

II. FACTUAL BACKGROUND

3. Below is a summary of the relevant facts and allegations based on the Parties’ written submissions, pleadings, and evidence adduced in these proceedings. References to additional facts and allegations found in the Parties’ written submissions, pleadings, and evidence will be made, where relevant, in connection with the legal analysis that follows. While the Sole Arbitrator has considered all the facts, allegations, legal arguments, and evidence submitted by the Parties in the present proceedings, this Award refers only to the submissions and evidence it deems necessary to explain its reasoning.

A. Facts

4. On 28 May 2019, an employment contract was concluded between the Club and the Player (the “First Employment Contract”) for the 2019/2020 as well as the 2020/2021 football seasons, with a termination date of 31 May 2021 (although this is referred to as the First Employment Contract for the purposes of this Award, the Parties had already signed at least one contract for previous seasons, including the 2018/2019 football season – referred to as the “Previous Employment Contract” as and where applicable).

5. According to Clause 1(3)(1) of the First Employment Contract, the Club should have paid the Player a total salary of EUR 100,000 net for the 2019/2020 football season. This was to be paid in ten equal instalments (of EUR 10,000 net) commencing on 31 August 2019 and on the final day of every month until 31 May 2020.

6. In addition, the Player should have been paid the amount of EUR 100,000 net for the 2020/2021 football season, payable in 10 equal monthly instalments of EUR 10,000 net commencing on 31 August 2020 until the end of the football season, i.e. 31 May 2021. The monthly payment of the Player’s salary was payable at the end of each month in accordance with the First Employment Contract.

7. Also on 28 May 2019, the Parties agreed to sign a Protocol Agreement, in order to settle the amount of EUR 65,000, which was outstanding from the 2018/2019 season in relation to the Player’s Previous Employment Contract. This amount concerned outstanding bonuses due to the Player, based on the previous employment relationship. It was agreed that the said amount

would be paid in ten monthly instalments of EUR 6,500 commencing on 31 August 2019 until 31 May 2020.

8. On 29 May 2019, the Parties signed a separate, additional employment agreement (the “Additional Employment Contract”), inter alia, the terms of which were:

- The Player would be entitled to the amount of EUR 25,000 net if the Club won the Cyprus Championship;

- The amount of EUR 15,000 net if the Club won the Cypriot Cup;

Or

- EUR 15,000 net if the Club participated in European Competitions;

- One return plane ticket for the Player, his wife and child; and

- The use of a car.

9. In accordance with Clause 2.1 of the First Employment Contract, the provisions of a Standard Employment Agreement negotiated between the CFA and the Cyprus Football Players Association (“PASP”) regulate the First Employment Contract between the Parties. In accordance with Clause 2.2 of the First Employment Contract - “The terms of the standard employment contract constitute an integral part of the present contract having full and direct implementation”.

10. In accordance with Clause 2.3 of the First Employment Contract – “in case of conflict, the terms of the standard employment agreement shall take precedence over the terms of the present contract”.

11. The Parties signed the Standard Employment Agreement, which was attached as an appendix to the First Employment Contract regulating the Parties’ employment relationship in accordance with Cypriot national law and the CFA’s Regulations.

12. On 19 August 2019, the Player had been paid by the Club the amount of EUR 5,000, as an advance of his salary for the month of August 2019.

13. On 23 August 2019, the Club paid the instalment of EUR 6,500 to the Player as agreed under the terms of the Protocol Agreement.

14. On 30 September 2019, the Club paid the remaining amount of EUR 5,000 as settlement of the outstanding salary for August 2019.

15. On 7 November 2019, the Player sent a notice to the Club through his legal representative in relation to his unpaid salaries for the months of September 2019 and October 2019, putting the Club in default for a period of 15 days in accordance with Article 12bis and Article 14bis of the FIFA Regulations on the Status and Transfer of Players (“RSTP”).

16. Furthermore, also on 7 November 2019, the Player put the Club in default, with the same notice period of 15 days, in relation to the outstanding amounts concerning the Protocol Agreement, i.e. for each payment since August 2019.

17. On 24 November 2019, the Player unilaterally terminated the First Employment Contract with the Club because of the non-payment of the salaries for September 2019 and October 2019.

18. On 26 November 2019, the Club paid the Player his salaries for the outstanding months of September 2019 and October 2019.

19. On the same date, the Club also paid the Player the instalment of EUR 6,500 for the month of September 2019, as per the terms of the Protocol Agreement.

B. The Proceedings before of the FIFA Dispute Resolution Chamber

20. On 25 December 2019, the Player lodged a claim against the Club in front of the FIFA Dispute Resolution Chamber (“DRC”) claiming the outstanding amount of the Protocol Agreement and also compensation for termination of the First Employment Contract with just cause in accordance with Article 17 of the FIFA RSTP.

21. The claim of the Player was notified to the Club on 21 January 2020 with FIFA inviting the Club to submit its position in relation to the Player’s case on 10 February 2020. In the FIFA DRC proceeding, the Club was identified as AEL Limassol as the respondent.

22. On 10 February 2020, the Club requested an extension to submit its response.

23. On 11 February 2020, FIFA informed the Club that the Club’s request for an extension had been rejected and that the investigation stage of the case was now closed.

24. However, on the same date, the Club filed a new (parallel) claim against the Player, regarding the same facts and contracts that are at the basis of the present dispute.

25. On 12 February 2020, the Club responded to the FIFA letter dated 11 February 2020 requesting that FIFA reconsider its decision and permit the Club to partake in the proceedings.

26. Again, on the same date, FIFA responded stating that no further submissions would be admitted to the file.

27. On 14 February 2020, the Club replied to FIFA submitting its defence and a counterclaim against the Player.

28. On 18 February 220, Mrs Vanessa Plavjanikova, FIFA Counsel, who had previously informed the Parties that the investigation phase of the case had been closed, invited the Player to submit

his observations in relation to the Club’s submissions, to be submitted no later than 28 February 2020.

29. On this date, FIFA informed the Club that it would be up to the FIFA DRC to decide on the admissibility of the Club’s 14 February 2020 submission.

30. On 11 March 2020, FIFA came back to the Parties, answering a request for an extension from the Player’s lawyer, informing the Parties that the letter of 18 February 2020 had been sent in error, and invited the Parties to disregard such correspondence. FIFA submitted the case to the FIFA DRC without taking into consideration the position of the Club.

31. On 8 May 2020, the FIFA DRC issued its decision (the “Appealed Decision”) without having considered the Club’s position, which included the following in the operative part:

“1. The claim of the Claimant, Dossa Momade Omar Hassamo Junior [the Player], is partially accepted.

2. The [Club], has to pay to the [Player] the amount of EUR 222,000, plus interest at the rate of 5% p.a. as follows:

- on the amount of EUR 52,000 as from 1 October 2019 until the date of effective payment;

- on the amount of EUR 170,000 as from 25 December 2019 until the date of effective payment.

3. Any further claim lodged by the [Player] is rejected”.

32. The grounds of the Appealed Decision were notified to the Parties on 9 June 2020.

C. The Decision of the FIFA Dispute Resolution Chamber

33. With regard to the Club’s position, the FIFA DRC took note that on 21 January 2020, FIFA invited the Club to provide its position on the matter by 10 February 2020, and that on 10 February 2020, i.e. the date of the deadline, the Club filed an unsubstantiated request for a deadline extension.

34. Furthermore, the FIFA DRC took into account that on 11 February 2020, the FIFA Administration, both (a) informed the Club that it could not grant the requested deadline extension and (b) closed the investigation phase of the matter, and that on the same date, the Club filed a new (parallel) claim against the Player, regarding the same facts and contracts that are at the basis of the present dispute.

35. In this regard, the FIFA DRC recalled the contents of Article 16 (11) of the FIFA Procedural Rules, according to which deadline extensions may be awarded only once, provided a substantiated request is submitted before the expiry of the original deadline.

36. The FIFA DRC then turned its attention to the contents of the Club’s correspondence of 10 February 2020, and observed that the Club requested a deadline extension, but failed to motivate, i.e. substantiate, why it merited such an extension. In other words, the Club limited itself to merely referencing Article 16 (11) of the FIFA Procedural Rules.

37. The FIFA DRC found that merely referencing Article 16 (11) of the FIFA Procedural Rules is not enough, and that the party in question must, even if briefly, motivate such request. In the FIFA DRC’s view, awarding the Club a deadline extension in the case at hand would be to accept a “loop” argument, whereby a party is granted a deadline extension due to the mere fact that the applicable rules allow deadline extensions to be granted. The FIFA DRC emphasised that such an interpretation, as proposed by the Club, was in sheer contradiction with the clear and unequivocal contents of Article 16 (11) of the FIFA Procedural Rules, according to which parties must substantiate their deadline extension requests.

38. Accordingly, the FIFA DRC concluded that the FIFA Administration acted correctly on the basis of Article 9 (3) of the FIFA Procedural Rules by closing the investigation phase of the matter, as the Club had failed both to adequately request a deadline extension and to file its position. In addition, the FIFA DRC noted that the parallel claim filed by the Club against the Player on 11 February 2020 was nothing more than a counterclaim, which should have been filed within the same time limit applicable to the response in line with Article 9 (3) of the FIFA Procedural Rules.

39. As such, the FIFA DRC concluded that the Club’s parallel claim was to be considered as an attempt to circumvent the FIFA Procedural Rules, and as it was not timely filed, it could not be taken into account. Likewise, the FIFA DRC emphasised that the same conclusion must apply to the submission filed by the Club on 14 February 2020, which was filed late and thus could not be considered, as per Article 9 (3) and (4) of the FIFA Procedural Rules.

40. Consequently, the FIFA DRC decided that the Club, for its part, failed to present its response to the claim of the Player, in spite of having been invited to do so. In this way, the FIFA DRC considered that the Club renounced its right to defence and thus accepted the allegations of the Player.

41. Furthermore, as a consequence of the aforementioned consideration, the FIFA DRC concurred that, in accordance with Article 9 (3) of the FIFA Procedural Rules, the FIFA DRC was to make its decision upon the basis of the documents on file; in other words, upon the statements and documents presented by the Player.

42. With regard to the substantive issues, at the time of the termination of the First Employment Contract, the total amount of EUR 59,742 was yet to be paid by the Club. The FIFA DRC observed that the Player granted the Club in writing, on 7 November 2019, a deadline of 15 days to cure its default.

43. It was undisputed that the Club had failed to pay the Player his salaries of September 2019 and October 2019 in line with the First Employment Contract, as well as the amounts due under the Protocol Agreement, which had matured early in line with the acceleration clause therein.

44. The FIFA DRC, on taking into account the facts of the case, and the longstanding jurisprudence in this respect, as well as the contents of Article 14bis of the FIFA Regulations, decided that the Player had just cause to unilaterally terminate the First Employment Contract on 24 November 2019 and that the Club was to be held liable for the early termination of the First Employment Contract with just cause by the Player.

45. In this regard, the FIFA DRC recalled that the Club paid the Player EUR 26,500 two days after the termination of the First Employment Contract by the Player and considered that such late payment could not change the legal stance of the Player vis-à-vis the termination; the FIFA DRC concluded that payment could only affect the Player’s right to terminate the contract, had payment been made before, and not after, the termination of the contract took place. The FIFA DRC did however highlight that the payments made would be taken into account for the calculation of the outstanding remuneration due to the Player.

46. The FIFA DRC also observed that the outstanding remuneration at the time of termination was equivalent to two salary payments under the First Employment Contract, i.e. September 2019 and October 2019, amounting to EUR 20,000, plus EUR 58,000 corresponding to payments owed under the Protocol Agreement. From such sum, the EUR 26,500 that was paid by the Club to the Player on 26 November 2019 should be deducted.

47. In accordance with the general legal principle of pacta sunta servanda, the FIFA DRC decided that the Club was liable to pay the Player the amounts which were outstanding under the First Employment Contract and the Protocol Agreement at the time of the termination, i.e. EUR 52,000.

48. In addition, and taking into account the request of the Player and the constant practice of the FIFA DRC, the FIFA DRC decided to award the Player interest at the rate of 5% on the outstanding amount of EUR 52,000 as of 1 October 2019 until the date of effective payment.

49. The FIFA DRC then focussed its attention on the calculation of the amount of compensation for the breach of contract. Article 17 (1) of the FIFA RSTP sets out that the amount of compensation that shall be calculated, in particular and unless otherwise provided for in the contract at the basis of the dispute, with due consideration for the law of the country concerned, the specificity of sport and further objective criteria, including, specifically, the remuneration and other benefits due to the player under the existing contract and/or the new contract, and depending on whether the contractual breach falls within the protected period.

50. With regard to this provision and the case at hand, the FIFA DRC held that it first of all had to clarify as to whether the pertinent employment contract contained a provision by means of which the Parties had beforehand agreed upon an amount in the event of a breach of contract.

In this regard, the FIFA DRC established that no such compensation clause was included in the First Employment Contract.

51. Therefore, the FIFA DRC determined that the amount of compensation payable by the Club to the Player had to be assessed in application of the other parameters set out in Article 17 (1) of the FIFA RSTP. The FIFA DRC recalled that said provision provided for a non-exhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable, meaning, other objective criteria may be taken into account at the discretion of the deciding body.

52. The FIFA DRC then turned its attention to the remuneration and other benefits due to the Player under the First Employment Contract, which criterion was considered to be essential. The FIFA DRC deemed it important to emphasise that the wording of Article 17 (1) of the FIFA RSTP allowed the FIFA DRC to take into account both the existing contract and any new contract in the calculation of the amount of compensation.

53. The FIFA DRC then went on to calculate the monies payable to the Player under the terms of the First Employment Contract as from its date of termination with just cause until the date that it was set to end, i.e. 24 November 2019, until 31 May 2021, and concluded that the Player would have received in total EUR 170,000 as remuneration had the First Employment Contract been executed until its expiry date. Consequently, the FIFA DRC concluded that the amount of EUR 170,000 served as the basis for the final determination of the amount of compensation for breach of contract in the case at hand.

54. The FIFA DRC then verified whether the Player had signed an employment contract with another club during the relevant period of time, by means of which he would have been enabled to reduce his loss of income, and recalled that the Player did not sign any new contracts within the relevant period.

55. The FIFA DRC concluded that, having taken into account all of the relevant considerations and the specificities of this case, the FIFA DRC decided to partially accept the Player’s claim and concluded that the Club must pay the amount of EUR 170,000 as compensation for breach of contract.

56. The Club was ordered to pay the Player EUR 220,000, plus interest at the rate of 5% p.a. on the amount of EUR 52,000 as from 1 October 2019 until the date of effective payment, and also on the amount of EUR 170,000 as from 25 December 2019 until the date of effective payment.

III. PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT

57. On 22 June 2020, the Club filed a Statement of Appeal with the Court of Arbitration for Sport (“CAS”) in accordance with Article R47 et seq. of the Code of Sports-related Arbitration (2019 edition) (the “Code”). The Player was named as a Respondent. In the Statement of Appeal, the Appellant requested that the dispute be referred to a sole arbitrator.

58. On 30 June 2020, the Respondent stated inter alia that it did not agree to refer the dispute to a sole arbitrator.

59. On 2 July 2020, the Respondent informed the CAS Court Office that he did not intend to pay his share of the advance of costs for this proceeding.

60. On 6 July 2020, FIFA renounced its right to intervene in the arbitration, further to Article R41.3 of the Code.

61. On 13 July 2020, after having been granted an extension further to Article R32 of the Code, the Appellant filed its Appeal Brief in accordance with Article R51 of the Code.

62. Also on 13 July 2020, the Parties were informed that the Deputy President of the CAS Appeals Arbitration Division, having considered the positions of the Parties and the circumstances of the case, had decided to refer the dispute to a sole arbitrator further to Article R50 of the Code.

63. On 25 August 2020, in accordance with Articles R50 and R54 of the Code and on behalf of the Deputy President of the CAS Appeals Arbitration Division, the CAS Court Office informed the Parties that Mr Gareth Farrelly, Solicitor in Liverpool, United Kingdom, had been appointed as the Sole Arbitrator in this proceeding.

64. On 10 October 2020, after having been granted several extensions further to Article R32 of the Code, the Respondent filed his Answer in accordance with Article R55 of the Code.

65. There was further correspondence between the CAS Court Office and the Parties concerning the COVID-19 pandemic, the health and wellbeing of those involved, the restriction of travel at this time, and subsequent extensions for the filing of evidence.

66. On 14 October 2020, the Parties were informed that the Sole Arbitrator had decided to hold a hearing by video conference in accordance with Articles R44.2 and R57 of the Code.

67. On 23 October 2020, both the Appellant and Respondent signed and returned the Order of Procedure in this appeal.

68. On 8 December 2020, a hearing was held by video-conference. At the outset of the hearing, all Parties confirmed that they had no objection as to the constitution and composition of the Panel.

69. The following persons attended the hearing, in addition to the Sole Arbitrator and Mrs Kendra Magraw, CAS Counsel:

- For the Appellant:

- Mr Christoforos Florou, Lawyer;

- Mr Lysandros Lysandrou, Lawyer;

- Mr Demetrios Giannelis, Ex-Technical Manager of the Club.

- For the Respondent:

- Mr Sami Dinç, Counsel;

- Mr Dossa Momade Omar Hassamo Junior, Respondent.

70. During the hearing, the Parties had the opportunity to present their cases, submit their arguments and answer all the questions posed by the Sole Arbitrator. At the end of the hearing, the Parties and their counsel expressly declared that they did not have any objections with respect to the procedure adopted by the Sole Arbitrator and that their right to be heard had been fully respected.

IV. SUBMISSIONS OF THE PARTIES

71. This section of the Award does not contain an exhaustive list of the Parties’ contentions, its aim being to provide a summary of the substance of the Parties’ main arguments. In considering and deciding upon the Parties’ claims in this Award, the Sole Arbitrator has accounted for and carefully considered all of the submissions made and evidence adduced by the Parties, including allegations and arguments not mentioned in this section of the Award or in the discussion of the claims below.

A. The Appellant

72. In its Statement of Appeal and Appeal Brief, the Appellant submitted the following requests for relief:

“The Appellant respectfully requests the Court of Arbitration for Sport to rule as follows:

i) The decision awarded to the Respondent is erroneous and therefore the FIFA DRC’s decision shall be dismissed and withdrawn.

ii) The FIFA DRC should accept the defence and counterclaim of the Appellant as being admissible.

iii) The FIFA DRC wrongly concluded that the Appellant renounced its right to a defence and thus accepted the allegations of the Respondent.

iv) The decision that the employment agreement was terminated without just cause by the Respondent and therefore the FIFA DRC’s conclusions are erroneous and without legal basis.

v) The decision that the Respondent shall bear the cost of the FIFA and the cost of the present arbitration procedure.

vi) The decision that the Respondent pay the legal fees and/or real expenses of the Appellant’s legal representatives in relation to the procedure in front of CAS

vii) The decision that the Appellant is entitled to a counterclaim and in particular the Appellant shall be awarded by the Respondent the amount of €170,000 as compensation for the termination of the contract without just cause by the Respondent or any fair compensation in accordance with Article 17 of the FIFA RSTP, plus legal interest”.

73. The detailed submissions of the Club, in essence, sought to address these issues:

i. Did the Appellant renounce its right to a defence in the FIFA DRC proceeding and thus accept the allegations of the Respondent?

ii. Is the CAS competent to consider the Appellant’s position since the FIFA DRC did not take the Club’s position into account in the Appealed Decision?

iii. Should the legal issues of the First Employment Contract and the Protocol Agreement be considered in totality or separately?

iv. Did the Respondent terminate the contractual relationship between the Parties with or without just cause?

74. The Appellant’s positions on the above issues will be summarized in turn.

i. Did the Appellant renounce its right to a defence in the FIFA DRC proceeding and thus accept the allegations of the Respondent?

- The FIFA DRC concluded that the Club had failed to present its response to the Player’s claim within the deadline provided and for this reason the Club had renounced its right to defend the claim. This conclusion breached the essential human rights of the Appellant and its right to a fair trial. FIFA had given the Club until 10 February 2020 to submit its position. The Club requested an extension on this date. However, FIFA responded on 11 February 2020 stating that the extension had not been granted. This response came after the deadline, without providing the Appellant with at least one day to submit its defence.

- The Club had requested an extension through its lawyers as they had done in other FIFA cases and therefore there was a legitimate expectation that an extension would be granted for at least one day. A previous letter from FIFA clearly stated that an “extension is automatically extended for ten (10) additional days in accordance with Article 16 par 11 of the Procedural Rules”.

- It was submitted that the Club had submitted its defence and counterclaim within the ten days provided for within Article 16 (11) of the FIFA Procedural Rules. Consequently, the

FIFA DRC decision on this matter was unreasonable and contravened the Appellant’s right to a fair trial.

ii. Is the CAS competent to consider the Appellant’s position considering the FIFA DRC did not take the Club’s position into account in the Appealed Decision?

- It is the Appellant’s position that even if the FIFA DRC decision is admissible in relation to the points raised above, and even if the Appellant renounced its right to defend the claim, it is submitted that the CAS is entitled to consider the facts of the case, even if any such arguments were not a part of the previous case file, as CAS has full power to review the facts and the law.

- In accordance with Article R57 (1) of the Code:

“The Panel has full power to review the facts and the law. It may issue a new decision which replaces the decision challenged or annul the decision and refer the case back to the previous instance. The President of the Panel may request communication of the file of the federation, association or sportsrelated body, whose decision is the subject of the appeal. Upon transfer of the CAS file to the Panel, the President of the Panel shall issue directions in connection with the hearing for the examination of the parties, the witnesses and the experts, as well as for the oral arguments”.

- In CAS 2019/A/6367, it was held, inter alia, that “According to Article 57(1) of the CAS Code, CAS proceedings are de novo proceedings. Consequently, the Parties – in principle – are not restricted when filing their legal and factual submission before the CAS. Therefore, a new submission or a new document shall be admitted in the CAS proceedings even if it was not part of the case file before the previous instances”.

- In CAS 2015/A/3993, the panel took the same position, stating:

“5.10 Furthermore, it is important to note that, according to R57 para. 3 of the CAS Code, the Panel has a discretionary option, not an obligation, to exclude such evidence presented by a party.

5.11 The Appellant submitted that since, in the absence of a hearing before the FIFA DRC, the Appellant was unable to dispute elements which he did not think had to be debated, the submissions of new evidence and arguments before CAS should not be deemed inadmissible (in particular, bearing in mind the indisputable nature of the evidence and arguments in question).

5.12 First of all, the Panel notes that Article 57 para. 1 of the CAS Code gives the Panel full power to review the facts and the law and to issue a de novo decision superseding, entirely or partially, the decision appealed against.

5.13 This means that the Panel, within certain limits, is allowed to admit, inter alia, new evidence and new legal arguments.

5.14 However, also in accordance with R57 para. 3 of the Code, “The Panel has discretion to exclude evidence presented by the parties if it was available to them or could reasonably have been discovered by them before the appealed decision””.

iii. Should the legal issue of the First Employment Contract and the Protocol Agreement be considered in totality or separately?

- It was submitted that the legal issues arising from the Protocol Agreement should be considered separately, that the Protocol Agreement constituted a separate agreement from the First Employment Contract. Any breach of the Protocol Agreement does not affect the provisions of the Parties’ employment relationship as defined in the First Employment Contract.

- Furthermore, it was averred that the First Employment Contract specifically provided through its terms and conditions, the circumstances under which the First Employment Contract could be terminated. The Appellant had fully complied with these contractual obligations.

- In addition, the Protocol Agreement did not provide the right for the Respondent to terminate the First Employment Contract, and therefore he was not entitled to terminate the First Employment Contract with just cause. It was submitted that the termination letter submitted on 24 November 2019 was terminating only the First Employment Contract and not the Protocol Agreement.

- If this was accepted to be the case, the Respondent would then be liable for the early termination of the First Employment Contract without just cause. This would mean that the Appellant would then be entitled to compensation. Article 17 (1) of the FIFA RSTP provided guidance as to how this compensation would be calculated. The First Employment Contract did not specifically provide for compensation to be payable in the event of a breach of contract. Any amount of compensation was to be determined with due consideration for the law of the country concerned, the specificity of sport and further objective criteria, including, in particular, the remuneration and other benefits due to the player under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, and depending on whether the contractual breach falls within the protected period.

- On this non-exhaustive criteria, and previous jurisprudence, it was submitted that the amount of compensation the Appellant is entitled to is the remaining remuneration under the First Employment Contract.

iv. Did the Respondent terminate the contractual relationship between the Parties with or without just cause?

- The Appellant submitted that the Respondent terminated the First Employment Contract without just cause. The unilateral termination was based on Article 14bis of the FIFA RSTP.

- The Appellant’s position was that the termination of the First Employment Contract was made against the provisions set out in the Standard Employment Agreement, therefore the termination was made without just cause. In particular, Article 9 of the Standard Employment Agreement signed between the Parties stated:

“9.2 The Player shall be entitled to terminate the Employment Agreement in writing to the Club if the Club:

9.2.1 Shall be guilty of serious or persistent breach of the terms and conditions of this Contract,

9.2.2 Fails to pay any due payables or other benefits, allowances or bonuses to the Player within 30 days since the date that the Club has been put in default in writing by the Player”.

- It was submitted that this provision had been negotiated and agreed between the CFA and the PASP (i.e. the Cyprus Football Players’ Association, a member of FIFPro). In accordance with Article 14bis (3) of the FIFA RSTP, “the terms of such an agreement shall prevail”.

- With regard to the present case, and applying Article 9.2.2 of the Standard Employment Agreement, the Respondent was required to put the Appellant on notice for a period of 30 days. The Respondent would only be entitled to unilaterally terminate the First Employment Contract if the Appellant failed to pay the outstanding salaries within the deadline of 30 days.

- In this case, the Respondent had put the Appellant in default on 7 November 2019. He terminated the First Employment Contract on 24 November 2019. This was 18 days after the default notice had been sent, and therefore the deadline provided for in the Standard Employment Agreement had not expired.

- On 26 November 2019, the Appellant paid the outstanding salaries to the Respondent.

B. The Respondent

75. In his Answer, the Respondent submitted the following requests for relief:

i) “To reject the allegations of the Appellant;

ii) To reject the counterclaim of the Appellant;

iii) To ratify the decision of the FIFA Dispute Resolution Chamber, dated 8 May 2020;

iv) To state that the Appellant is responsible for the payment of the whole CAS administration costs and the Arbitrator fees; and

v) To condemn the Appellant to pay the legal fees in the amount of CHF20,000 and other expenses of the First Respondent [sic] in connection with proceedings”.

76. The submissions of the Respondent, in essence, sought to address the Appellant’s case as follows:

- The default notice was sent to the Appellant on 7 November 2019. The Club was given a final payment term of 15 days in line with the mandatory provision of Article 14bis of the FIFA RSTP. The Appellant neither made any payment nor provided any answer to the Respondent within the given term and the Respondent had no other remedy but to unilaterally terminate his employment relationship with the Appellant on 24 November 2019, after waiting 18 days following the default notice.

- It was evident that the termination was in line with the provisions set out in the FIFA RSTP. As of the date of the default notice, 7 November 2019, there was a debt corresponding to 2-months of salary payments (in the amount of EUR 20,000) arising from the First Employment Contract and in addition to this amount, the accelerated debt of EUR 58,500 arising from the Protocol Agreement which was also overdue.

- The Respondent waited until the end of the given time limit of 15 days to terminate the First Employment Contract, and in fact longer, waiting until the 24 November 2019. On this date, the Respondent unilaterally terminated his employment relationship with the Appellant based on both the non-payment of the overdue payables and the silence of the Appellant.

- The Respondent submitted that the Appellant did not dispute any of these facts. Rather, the Appellant alleged that Article 9.2.2 of the Standard Employment Agreement had to be considered in relation to the termination ceremony of the Respondent which regulates a 30-day notice before a possible unilateral termination based on non-payment.

- The Respondent strongly objects to this position taken by the Appellant, based on Article 14bis (2) and Article 18 (6) of the FIFA RSTP which state as follows:

- Article 14bis (2) of the FIFA RSTP:

“2. In the case of a club unlawfully failing to pay a player at least two monthly salaries on their due dates, the player will be deemed to have a just cause to terminate his contract, provided that he has put the debtor club in default in writing and has granted a

deadline of at least 15 days for the debtor club to fully comply with its financial obligation(s). Alternative provisions in contracts existing at the time of this provision coming into force may be considered” (emphasis added by Respondent).

- Article 18 (6) of the FIFA RSTP:

“6. Contractual clauses granting the club additional time to pay to the professional amounts that have fallen due under the terms of the contract (so-called “grace periods”) shall not be recognised. Grace periods contained in collective bargaining agreements validly negotiated by employers’ and employees’ representatives at domestic level in accordance with national law shall, however, be legally binding and recognised. Contracts existing at the time of this provision coming into force shall not be affected by this prohibition” (emphasis added by Respondent).

- It was submitted that Articles 14bis (2) and 18 (6) of the FIFA RSTP clearly define that the time that a player has to allow a club to cure its non-payment is limited to 15 days in order to deem that the player has just cause to terminate the employment relationship. In addition to this, and even more importantly, any provision which seeks to extend this period shall not be valid at all. Therefore, Article 9.2.2 of the Standard Employment Agreement shall not be recognised and the valid rule to be implemented on the present dispute is Article 14bis of the FIFA RSTP.

- With regard to the Appellant’s submissions that the FIFA Regulations are not applicable, both its responses before FIFA DRC and CAS are based on the FIFA Regulations and law. The only issue that the Appellant alleges is different than the provisions of FIFA Regulations is the time limit which has to be given before a unilateral termination based on the non-payment of wages, which the Appellant argues is 30 days instead of 15 days. In essence, the application of the national provisions contradicts the mandatory provisions of FIFA RSTP. Therefore, it should not be applicable.

- The FIFA DRC has previously decided on this particular point. In decision No. 03170536-e, it was stated that:

“20. (…) the Chamber wished to point out, as a principle, that when deciding a dispute before the DRC, FIFA’s regulations prevail over any national law chosen by the parties. In this regard, the Chamber emphasised that the main objective of the FIFA regulations is to create a standard set of rules to which all the actors within the football community are subject and can rely on. This objective would not be achievable if the DRC would have to apply the national law of a specific party on every dispute brought to it. In this respect, the DRC wished to point out that it is in the interest of football that a player’s remuneration is based on uniform criteria rather than on provisions of national law that may vary considerably from country to country. Therefore, the Chamber deemed that it is not appropriate to this case to apply specific aspects of a particular law but rather the Regulations on the Status and Transfer of Players, general principles of law, and, where existing, the Chamber’s well-established jurisprudence”.

- The Respondent argued that, as determined in the decision cited above, if there were no mandatory rules of FIFA, then different law and regulations would be implemented in every dispute and there would be no standard and uniform implementation in football. This would create chaos and unlawful exploitation of the rights of the football players.

- It is telling that the Appellant never provided any explanation, response, payment or reminder to the Respondent following the receipt of the default notice sent on 7 November 2019 until the termination date of 24 November 2019, which corresponds to 18 days. There was no response. This demonstrates that the Appellant is only fishing and insincere in its allegations. A party that was interested in fulfilling its contractual obligations would clearly be in contact with the counter party and seek to express itself and its position. On 27 November 2019, the Appellant did send a letter. This was after the payment of the outstanding two-month salaries on 26 November 2019, which did not affect the Respondent’s termination of the First Employment Contract that had taken place on 24 November 2019.

- With regard to the overdue amounts and compensation, the Respondent submitted that the calculations had been undertaken correctly by the FIFA DRC. In accordance with Article 17 of FIFA RSTP, the residual value of the contract has to be decided in full in cases where the terminating party does not sign a new contract. Article 17 of the FIFA RSTP states:

“Article 17 – Consequences of terminating a contract without just cause

The following provisions apply if a contract is terminated without just cause:

1. In all cases, the party in breach shall pay compensation (…). Bearing in mind the aforementioned principles, compensation due to a player shall be calculated as follows:

i. in case the player did not sign any new contract following the termination of his previous contract, as a general rule, the compensation shall be equal to the residual value of the contract that was prematurely terminated.

ii. in case the player signed a new contract by the time of the decision, the value of the new contract for the period corresponding to the time remaining on the prematurely terminated contract shall be deducted from the residual value of the contract that was terminated early (the “Mitigated Compensation”). Furthermore, and subject to the early termination of the contract being due to overdue payables, in addition to the Mitigated Compensation, the player shall be entitled to an amount corresponding to three months salaries (the “Additional Compensation”). In case of egregious circumstances, the Additional Compensation may be increased up to a maximum of six monthly salaries. The overall compensation may never exceed the rest value of the prematurely terminated contract”.

- Finally, the Respondent submitted that the payments arising out of the Protocol Agreement are also a part of the employment relationship between the Parties and the

obligations arising from the Protocol Agreement are also a part of the trust between the Parties. It is clear that the financial obligations towards the Respondent arising from both the First Employment Contract and the Protocol Agreement, which were signed on the very same day, have to be considered during the evaluation of the termination. Conversely, Article 8 of the Protocol Agreement refers to the laws and regulations of FIFA as well as the appointment of FIFA and CAS as the judicial bodies. On this basis, the two agreements could not be considered as separate in any way.