Al Hilal Khartoum v. Diego Garzitto

II. FACTUAL BACKGROUND — A. Background Facts

3. Below is a summary of the relevant facts and allegations based on the parties’ written submissions, pleadings, the evidence taken and the submissions made at the hearing. Additional facts and allegations found in the parties’ written submissions, pleadings and evidence may be set out, where relevant, in connection with the legal discussion that follows. While the Sole Arbitrator has considered all the facts, allegations, legal arguments and evidence submitted by the parties in the present proceedings, he refers in his Award only to the submissions and evidence it he considers necessary to explain his reasoning.

4. On 28 December 2011, the Appellant and the Respondent concluded a one-year employment contract (hereinafter the “First Contract”) by which the Coach was engaged as the head coach of the senior team of the Club from the period from 1 January 2012 until 31 December 2012.

The relevant part of the Contract reads as follows:

“1.2. RULES AND REGULATION [sic]

Refers to the rules and regulations in:

- The ALHILAL Football Club;

- The Sudan Football Association’s constitution and rules;

- CAF constitution and rules;

- FIFA constitution and rules.

Which shall together with this agreement regulate the HEAD Coach’s obligation [sic], duties and performance.

3. DURATION

The period of the employment shall be for one year starting on 1st January 2012 until 31th December 2012.

4. RENUMERTION [sic]:

4.1 SALARY

The HEAD COACH shall be paid a monthly basic net salary of the sum of US$ 10,000/=Only Ten Thousand US Dollars by the last day of each month.

4.2 SIGNING ON FEE

The HEAD COACH shall be paid a once off sum of US$ 50,000 (only fifty thousand US Dollars in advance upon signed the contract”

4.3. Bonuses […]

5. RENEWAL

“THE CLUB and the HEAD COACH reverse the right and shall have option and right of renewal of the contract on the terms and conditions to be agreed upon, and/or refusal to renew the contract. These rights shall be expressed in winning [sic] by the CLUB and the HEAD COACH not later than two months prior to the end of hid [sic] agreement.

9. BREACH AND TERMINATION

Should the HEAD COACH commits any breach of this agreement and fail to remedy such breach within 14 (fourteen) days after registered post of notice by THE CLUB or its attorneys forthwith, or to take action against the HEAD COACH for specific performance of his obligations under the agreement, or to prohibit the HEAD COACH joining another club affiliated to the League for the remainder of the contractual period.

Likewise should THE CLUB commits such breach the prevision of clause 11 shall apply MUTATIS MUTANDI.

In the event the Head coach wants to cancel this contract for whatsoever reason the parties agree that the HEAD COACH will pay the club amount of $ 50,000/= (only fifty thousand US DOLLARS) with a condition club must be notified by writing notice before 45 days.

In the events [sic] club is electing and wants to cancel this contract the parties agree that the club will pay the head coach amount of three months’ salary:

A) Nothing if the club terminates the contract during the first year.

B) Three months’ salary if the club terminates the contract at any time after two seasons.

11. JURISDICTION

The parties consent to the jurisdiction of the Sudan FA and FIFA”.

5. During the season 2012, under the direction of the Respondent, the Club won the Sudanese Premier League.

6. On 25 November 2012, the Club paid the Coach an amount of USD 73,000, together with SDG 238,000 (Sudanese pounds) through a cheque, in concept of the remainder of all his entitlements under the First Contract.

7. On 8 December 2012, the Coach apparently (this is disputed by the Appellant) concluded a one-year employment contract with the Club (hereinafter the “Second Contract”), valid from 1 January 2013 until 31 December 2013.

The relevant part of the Second Contract reads as follows:

“Article 4 – DURATION OF THE CONTRACT

The present contract is granted and accepted by the both parties for a duration of One (1) Year sports season from 01/01/2013 up to 31/12/2013. At the expiration of the present contract Mr. Diego Garzitto will be free of any commitment.

Article 5 – REMUNERATION

5.1 The Parties agreed for an amount of USD 600,000 (US Dollars six hundreds thousands [sic]) as a total Contract Amount to be paid as follows:

i. Monthly salary of 10.000 (USD Ten Thousands [sic]) will be paid before the 7th in the month.

ii. An advance [sic] payment of USD 50.000(USD Fifty thousands [sic]) to be paid upon the signature of the Contract on JANUARY 1st 2013;

iii. An amount of USD 100,000 (USD One hundred thousands [sic]) to be paid via bank transfer on JUNE 1st, 2013;

iv. An amount of USD 100,000 (USD One hundred and eighty [sic] thousands [sic]) to be paid via bank transfer on SEPTEMBER 1st, 2013;

v. An amount of USD 100,000 (USD One hundred and eighty [sic] thousands [sic]) to be paid via bank transfer on NOVEMBER 1st, 2013;

vi. The remaining balance of USD 130,000 (USD One hundred thirty [sic] thousands [sic]) to be paid via bank transfer on DECEMBER 1st, 2013.

Article 8 – GOVERNING LAW AND LANGUAGE

7.1 […]

7.2 […]

7.3 The validity and interpretation of this Contract and the legal relations of the Parties to it shall be governed and construed in accordance with the Rules and Regulations of the ALHILAL FOOTBALL CLUB, The Sudan Football Association rules and regulations, CAF and FIFA constitution and rules.

Article 10 – THE EARLY BREAK OF THE CONTRACT

The retreat by the club of all or any of the definition of function planned to the present contract and attributed, or the non-full payment by the employer of his obligations will be considered as an one-sided break of the present contract.

This break will have the effect of returning the indebted club of damages as follows:

- Compensations corresponding to the monthly fixed salary multiplied by the number of six (6) months in the contract;

- Coverage of the airplane ticket return for 2 persons on the airplane company of Mr. Diego Garzitto’s choice”.

Article 11 – COMPETENT JURISDICTION

Before any procedure raising national jurisdictions, for the formation, the execution and the possible break of the present contract, the parties suit expressly that any dispute will be subjected to the competent commission, as well as to the commission of the FIFA player’s status or the arbitration court of the Sport”.

8. On 17 April 2013, the Club sent a letter to the Coach by which it notified him the termination of their contractual relationship. In its correspondence, the Club stated the following:

“J’ai le regret de vous informer que le conseil d’administration d’Al Hilal a décidé lors de sa réunion du 17/4/2013, de mettre un terme à vous [sic] services de directeur technique à partir de 18/4/2013. On a parié beaucoup sur vous et sur l’équipe qui vous assiste pour gagner le premier championnat extérieur à savoir le championnat de clubs champions.

Malheureusement la sortie précoce de l’équipe a créé une grande tension et une hostilité grandissante entre vous et le public (les fans d’Al Hilal) qui ont boycotté les matchs de l’équipe dans le championnat local ont attisé cette hostilité. Ainsi le conseil d’administration ne sera pas en mesure d’assurer votre sécurité personnelle dans ces conditions tellement hostiles et difficiles.

Tout en vous remerciant de [sic] travail que vous avez accompli lors de la période passée le conseil D’ [sic] administration vous souhaite bonne chance et plein succès pour le [sic] suite de votre carrière”.

Which could be freely translated into English as follows (translation provided by the Appellant and not contested by the Respondent):

“I regretfully inform that the board of Al Hilal decided at its meeting on 17/04/2013 to terminate your services as technical director from 18/04/2013. We were counting a great deal on you and the team around you to win the first foreign competition, namely the competition of club champions.

Unfortunately, the early exist of the team gave rise to considerable tension and an increasing hostility between you and the public (the fans of Al-Hilal) which boycotted matches of the team. The mediocre results achieved by the team in the local championship worsened this hostility. Consequently, the board will not be able to ensure your personal safety in these hostile and difficult conditions.

Whilst thanking you for the work you have accomplished previously, the board wishes you good luck and much success for the rest of your career”.

9. Also on 23 April 2013, the Club sent a letter to the SFA in the following terms:

“1. With all respect Al-Hilal Club Board of Directors Council express [sic] its best regards and good wishes to the SFA Board Directors.

2. In the abovementioned subject, we would like to inform you that the club is in the process of terminating the contract of the Coach, according to the renewed contract of 2012.

3. The club has already settled some of its liabilities regarding the said contract, which amounted to 50,000 USD.

4. According to the said contract the salary of 4 months is due in favor of the Coach.

5. When we met with the Coach to discuss the arrangements of termination, we were surprised by a different contract which has not been signed or stamped by the club and the Coach pretended having entitlements which do not exist according to the contract entered into between us.

6. Therefore, the SFA is kindly requested to intervene in order to put in order the termination of the contract as per the law.

7. We hereby deposit the Coach’s dues at the SFA’s custody or as instructed by your good selves”.

B. Proceedings before the FIFA Players’ Status Committee

10. On 16 May 2013, the Respondent lodged a claim before the FIFA Players’ Status Committee against the Appellant for terminating the contract without any valid reason, requesting FIFA to condemn the Club to pay him the following amounts: “(i) USD 540,000 as a compensation for breaching the contract without any valid reason; (ii) USD 1,500 in regard of the legal costs; (iii) USD 2,200

representing one flight ticket; (iv) USD 38,000 corresponding to the cheque of “238.000 Sudanese Pound” as well as CHF 5,000 as reimbursement of advance costs”.

11. On 5 December 2013, the Club rejected the Coach’s claim in its entirety. In this respect, the Club argued that “no contract was found deposited with the Association to justify those amounts of money which were stated in the claim”. Furthermore, the Club stated that “the previous Board asserted in press interviews that he did not sign with Coach Garzitto the contract referred to in the letter”.

12. On 7 January 2014, the Coach submitted his comments regarding the Club’s answer and reiterated his previous statements. Likewise, the Coach argued that the Club’s former President, Mr. El Bireir, confirmed to the press having signed the Second Contract with the Coach.

13. On 22 January 2014, the Club reiterated its previous statements of defence and emphasized that it did not find any contract that asserted the claim raised by the Coach, since, according to the Club, the only contract in its possession was the one executed in December 2012, i.e. the First Contract.

14. On 23 April 2014, the Single Judge of the FIFA Players’ Status Committee rendered the following Decision concerning the aforementioned dispute:

1. “The Claim of the Claimant, Diego Garzitto, is partially accepted.

2. The Respondent, Al Hilal Club, has to pay to the Claimant, Diego Garzitto, within 30 days as from the date of notification of the present decision, the amount of USD 30,000 as outstanding salary as well as the amount of USD 1,700 as the cost of a flight ticket.

3. Furthermore, the Respondent, Al Hilal Club, has to pay to the Claimant, Diego Garzitto, within 30 days as from the date of notification of the present decision, the amount of USD 369,000 as compensation for breach of contract.

4. Any further claims lodged by the Claimant, Diego Garzitto, are rejected.

5. If the aforementioned amounts are not paid within the aforementioned deadline, an interest rate of 5% per year will apply as of the expiry of the fixed time limit and the present matter shall be submitted, upon request, to the FIFA’s Disciplinary Committee for consideration and formal decision.

6. The final costs of the proceedings in the amount of CHF 18,000 are to be paid to FIFA, within 30 days as from the date of notification of the present decision, as follows:

6.1 The amount of CHF 6,000 has to be paid by the Claimant, Diego Garzitto. Given that the latter already paid an advance of costs in the amount of CHF 5,000 at the start of the present proceedings, the Claimant, Diego Garzitto has to pay the remaining amount of CHF 1,000.

6.2 The amount of CHF 12,000 has to be paid by the Respondent, Al Hilal Club.

6.3 The abovementioned two amounts of CHF 1,000 and CHF 12,000 have to be paid to the following bank account with reference to case nr. 13-01459/lde […].

7. The Claimant, Diego Garzitto, is directed to inform the Respondent, Al Hilal Club immediately and directly of the account number to which the remittance under points 2 and 3 above is to be made and to notify the Player’s Status Committee of every payment received”.

15. On 8 May 2014, the findings of the Decision passed by the Single Judge of the Players’ Status Committee were notified to the parties.

16. On 17 May 2014, the Appellant requested FIFA to notify it the grounds of the Decision passed by the Single Judge of the Players’ Status Committee of FIFA.

17. On 19 August 2014, the FIFA notified the parties the grounds of the Decision passed by the Single Judge of the FIFA Players’ Status Committee on 23 April 2014.

III. PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT

18. On 15 September 2014, the Appellant filed a Statement of Appeal before the CAS against the Respondent and FIFA with respect to the decision rendered by the Single Judge of the FIFA Players’ Status Committee on 23 April 2014 (hereinafter “the Appealed Decision”), requesting the following:

“The Club hereby respectfully requests CAS to rule that:

(i) The Appeal of the Club against the Decision is admissible.

(ii) The Decision is set aside.

(iii) All claims of the Coach against the Club are rejected.

(iv) The entirety of the arbitration costs shall be borne by the Respondents.

(v) The Respondents shall make a substantial contribution to the legal and other costs of the Appellant”.

19. On 23 September 2014, FIFA sent a letter to the CAS Court Office requesting its exclusion as a Respondent in the present procedure arguing that the same was related to a contractual matter between the Club and the Coach in connection with the execution of an employment contract signed by and between the aforesaid parties, and thus the matter did not concern FIFA. Furthermore, FIFA alleged that the Single Judge of the Players’ Status Committee acted solely as the competent deciding body in the first instance and was not a party to the dispute, not to mention the fact that the Appealed Decision was not of disciplinary nature.

20. On the same day of 23 September 2014, the Appellant sent a letter to the CAS Court Office requesting a twenty-day extension of the deadline for filing of the Appeal Brief, on the basis that it intended to instruct an expert opinion from a Sudanese counsel and that due to language

barriers it had some difficulties to communicate with its legal counsel. In this respect, on the same date, the CAS Court Office notified the parties that the deadline was suspended until the other parties submitted their positions in this regard.

21. On 24 September 2014, in light of FIFA’s letter dated 22 September 2014, the Appellant informed the CAS Court Office that it withdrew its appeal against FIFA as the latter was only included as a respondent ex abundanti cautela, notwithstanding the non-disciplinary nature of the present matter.

22. On 24 September 2014, the CAS Court Office informed the parties that the Appellant withdrew its appeal against FIFA and, therefore, the Coach should be considered as the sole Respondent.

23. On 29 September 2014, the CAS Court Office notified the parties that, in the absence of any objection from the Respondent on the Appellant’s request for an extension of its deadline to file the Appeal Brief, the deadline had been extended by twenty days.

24. On 13 October 2014, the Appellant requested another extension of the deadline to file the Appeal Brief until 23 October 2014.

25. On 14 October 2014, the CAS Court Office invited the Respondent to inform whether he agreed with the Appellant’s request for a deadline extension to file its Appeal Brief, informing that the Respondent’s silence would be considered as an approval.

26. The Respondent did not file any communication towards the Appellant’s request to extend the deadline to file the Appeal Brief.

27. On 20 October 2014, the CAS Court Office notified the parties that the Appellant’s deadline to file its Appeal Brief was extended.

28. On 23 October 2014, the Appellant filed its Appeal Brief reiterating the prayers for relief previously submitted with its Statement of Appeal. The Appellant filed with its Appeal Brief a legal opinion on “Contractual formalities, applicable law in contractual obligations, employment contracts & liquidated damages in Sudanese Law”. In addition, pursuant to Article R44.3 of the CAS Code, the Appellant asked the Sole Arbitrator to request the Respondent to produce the original version of the Second Agreement and to instruct an independent expert to assess the authenticity of the signature of Mr. Al-Birair.

29. On 3 November 2014, pursuant to Article R54 of the CAS Code and on behalf of the Deputy President of the CAS Appeals Arbitration Division, the CAS Court Office informed the parties that Mr. José Juan Pintó, attorney-at-law in Barcelona (Spain), had been appointed as the Sole Arbitrator in this case. No objections were raised as to the appointment of the referred arbitrator to rule the present dispute.

30. On 12 November 2014, the Respondent submitted his Answer to the Appeal Brief, which was drafted in French. Furthermore, the Respondent informed the CAS by e-mail that he

could not provide the original version of the Second Contract because it had been previously filed before FIFA within the first instance proceedings.

31. On 13 November 2014, the CAS Court Office advised the Respondent that the language of the proceedings was English and thus all the correspondence and submissions should be sent in English.

32. Notwithstanding the above, on 17 November 2014, the CAS Court Office invited the Appellant to inform whether it agreed with the filing of the answer in French, taking into account that the language of the proceedings is English.

33. On 19 November 2014, the CAS Court Office requested FIFA to lodge a copy of its file related to the present matter and, if possible, to send the originals of the two employment contracts concluded between the parties.

34. On 22 November 2014, the Appellant informed the CAS that it did not agree with the filing of the Answer in French and requested that the Respondent be ordered to produce an English translation of his Answer to the Appeal Brief and of any exhibit that was not in English.

35. On the 25 November 2014, the CAS Court Office invited the Respondent to file a translation into English of his Answer to the Appeal Brief as well as of the exhibits that were not yet translated in English.

36. On 26 November 2014, the Respondent filed an English version of his Answer to the Appeal Brief, together with the requested translation in English of his exhibits. The Respondent’s Answer to the Appeal Brief contained the following requests for relief:

“145. The Coach rejects the Appeal Brief of the Club in its absolute totality.

146. The Coach asks the CAS that the FIFA decision be confirmed

147. The Coach asks the Club the application to immediate payment of amounts calculated by FIFA.

148. The Coach asks the Club the application of the check payment (exhibit 29) in USD.

149. The Coach asks the club the application of repayment of all instruction fees.

150. The Coach asks the Club the application of damages payment at the discretion of the CAS”.

37. On 5 December 2014, the Appellant requested the CAS to be authorized to produce further evidence.

38. On the same 5 December 2014, the CAS Court Office invited the Respondent to inform the CAS whether he agreed or not with the request of the Appellant with regard to the new evidence.

39. The same 5 December 2014, the Respondent informed the CAS Court Office that he did not agree with the Appellant’s request.

40. On 9 December 2014, the CAS Court Office, on behalf of the Sole Arbitrator, informed the parties that the Appellant’s request to file additional evidence was denied in accordance with Article R56 of the CAS Code due to the absence of exceptional circumstances.

41. On the same 9 December 2014, the Appellant resubmitted its request to file witness evidence in order to contest the witness evidence produced by the Respondent together with his Answer to the Appeal Brief.

42. On 11 December 2014, the CAS Court Office invited the Appellant to provide the list of witnesses it proposed, together with a written statement of each of them, and to justify, in connection with each witness, the exceptional circumstance potentially allowing to their acceptance.

43. On 15 December 2014, the Appellant sent a letter to the CAS Court Office, providing the list of witness proposed together with their witness statements, explaining the exceptional circumstances that, under its point of view, were leading to the admission of these new evidence.

44. On 17 December 2014, the FIFA lodged before the CAS the original FIFA file, and informed the CAS that it was not in possession of the original version of any of the employment contracts that had been concluded between the parties of the procedure.

45. On the same 17 December 2014, the Respondent requested the CAS to be allowed to file an answer to the witness statements filed by the Appellant.

46. On 18 December 2014, the CAS Court Office informed the parties that the Sole Arbitrator had denied the Respondent’s request to reply the witness statements produced by the Appellant, without prejudice to his right to contest such statements at the hearing.

47. On 13 January 2015, the Respondent informed the CAS Court Office that he had been able to recover an original copy of the Second Contract and thus was able to present it at the hearing along with the original signature of the Club’s President Mr. Al-Birarir.

48. On 19 January 2015, the CAS Court Office invited the Appellant to state whether it agreed to the production of the original copy of the Second Contract at this stage in the proceedings.

49. On 21 January 2015, the Appellant informed the CAS that it did not agree to the production of the purported original of the Second Contract, on the basis that there were no exceptional circumstances which would warrant the admission of this document at this stage in the proceedings.

50. On 22 January 2015, the CAS Court Office informed the parties that the Sole Arbitrator had decided not to accept the production of the Second Contract as, in his view, there were no exceptional circumstances leading to its admission, pursuant to Article R56 of the CAS Code.

51. The hearing in the present case took place in Lausanne on 11 February 2015. In addition to the Sole Arbitrator the following persons attended the hearing:

a) For the Appellant:

1. Mr. Ross Wenzel.

2. Mr. Vincent Jäggi.

3. Mr. Nicolas Zbinden.

b) For the Respondent:

1. Mr. Diego Garzitto.

2. Mr. Raoul Savoy.

52. During the hearing, the Sole Arbitrator examined the following witnesses, in order of appearance:

- Mr. Anthony Garzitto, Fitness Coach (by videoconference, pursuant to article R44.2 of the CAS Code). - Mr. Abdou Karim Dieng, FIFA Agent (by videoconference, pursuant to article R44.2 of the CAS Code).

53. Mr. William Sternheimer, Managing Counsel and Head of Arbitration for CAS, and Mr. Yago Vázquez Moraga, ad hoc clerk, assisted the Sole Arbitrator at the hearing.

54. At the outset of the hearing, the Sole Arbitrator invited the parties to try to reach an agreement in this case. However, after the corresponding private negotiations, the parties were not able to reach any agreement and thus the hearing was resumed. In addition, at the beginning of the hearing and upon the invitation of the Sole Arbitrator, taking into account that both parties understood French, the parties agreed that the hearing was simultaneously held in English (the Appellant) and French (the Respondent), allowing also the witness to be examined in French.

55. After the opening statements of the parties, the Appellant renounced to examine the witnesses he had initially proposed, substituting them by their written statements filed within the proceedings, which was accepted by the Respondent.

56. During the hearing, the parties had the opportunity to present their case, to submit their arguments, and to answer the questions posed by the Sole Arbitrator. At the end of the hearing both parties expressly declared that they did not have any objection with the procedure and that their right to be heard had been respected.

57. Both parties countersigned the order of procedure issued by the CAS Court Office.

IV. SUMMARY OF THE PARTIES’ SUBMISSIONS

58. 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 Sole Arbitrator, however, has carefully considered all the submissions made by the parties, even if no explicit reference is made in what immediately follows.

IV.1 THE APPELLANT

59. The Appellant’s submissions, in essence, may be summarized as follows:

A. As to the facts

60. On 28 December 2011, the Club and the Coach entered into an employment contract for the period from 1 January 2012 until 31 December 2012. Under clause 5 of this contract, the parties could renew it in writing no later than two months prior to the end of the initial term agreed.

61. On 28 November 2012, the Club paid to the Coach an amount of USD 73,000 which constituted the remainder of all the Coach’s entitlements under the First Contract.

62. Within the negotiations held afterwards to renew the First Contract, the Coach requested a higher salary. However, in view of the “modest results of the football team under his leadership” the Appellant did not agree to such request. Ultimately, the Coach and the Club did not enter into any written agreement or other correspondence to renew the First Contract.

63. Despite the absence of a formal extension of the First Contract, the Coach remained with the Club as its head coach in the beginning of 2013, under the same terms and conditions. However, on 17 April 2013, the Club decided to terminate the tacitly extended First Contract due to the team’s poor results in the national championship.

64. On 23 April 2013, the Appellant informed the SFA of the termination of the tacitly renewed First Contract, explaining that it had already paid the Coach USD 50,000 under the renewed contract and that, additionally, four monthly salaries were still due to the Coach, which would be deposited before the SFA. In addition, the Club informed the SFA that the Coach had surprisingly produced an unsigned and unstamped contract within the context of the termination discussions and sought to claim entitlements which were not provided for in the First Contract.

65. The annual compensation provided for in the Second Contract amounted to USD 600,000, which was more than three and a half times the annual remuneration under the First Contract.

B. With regard to the validity of the Second Contract

66. The alleged Second Contract was discovered by the Appellant for the first time during the discussions surrounding the termination of the First Contract.

67. Mr. Al-Birair, former President of the Club, has categorically denied that he had signed this Second Contract. Furthermore, Mr. Imad Eltayeb Mohamed Saleh, who is the Secretary General of the Club, also stated that he “never negotiated or was aware of the 2013 contract upon which Mr. Garzitto is now relying”.

68. It is difficult to understand why the Club would have increased the remuneration under the First Contract by nearly four times (USD 170,000 to USD 600,000) taking into account that “the Club performance in 2012 was mediocre”.

69. There are several formal differences between the First Contract and the Second Contract that are particularly noteworthy:

- the alleged contract does not contain the Club logo, - the signature page of alleged contract does not have the Club’s seal, - the alleged contract does not have the initials of the parties in any of its pages, as the First Contract does in every page, - there are no witnesses to the signatures notwithstanding the fact that this is a de facto requirement pursuant to Sudanese law and forms part of the Club’s standard and constant contractual practice, - the structure and drafting of the two contracts contain few or no similarities, - pursuant to an express provision in the alleged Second Contract, it was supposedly executed in five original copies and shared with the SFA, the French Football Federation and FIFA; however, neither the Club nor any of these entities was sent a copy at the time, - there are a number of errors and discrepancies in the Second Contract; in particular (i) its final page refers to the agreement being entered into in Omdurman on 1 January 2013 while the first page refers to it being entered into I Khartoum on 8 December 2012 and (ii) in the signature block, the name of the former President (Mr. Al Amin Al- Birair) is wrongly spelt (“Mr. El Ameen Al Brair”).

70. It makes no sense that the Club, rather to modify and existing employment agreement, had produced an entirely different (and generic) template to document a salary increase.

71. The Respondent bears the initial burden of proving that the alleged Second Contract is valid and authentic. For this purpose, it is not sufficient to produce a contract which purports to be signed by or on behalf of the Club. Taking into account the evidence (sworn statement from Mr. Al-Birair) and the arguments provided by the Appellant, the Coach has not met his burden to establish that it is a valid and binding contract entered into between the parties.

72. Under Sudanese law, a person wishing to rely on a contract that has not been witnessed bears the burden of proof vis à vis the validity of the contract in question.

73. Even if the Sole Arbitrator considered that it is the Club which has the burden of proving that the alleged Second Contract is not valid and authentic, the Club has already met that burden. In particular, the Appellant cannot go beyond as it does not have an original copy of the contract and thus it is unable to arrange for an expert report to prove that the signature is not that of Mr. Al-Birair.

74. Taking into account the circumstances of the case, the Club is in a position of Beweisnotstand, a principle of Swiss Law that reflects the general principle of negativa non sunt probanda. In situations of Beweisnotstand, the party which contests a fact (that the other party has the burden of proving) is required to “substantiate and explain in detail why it deems the facts submitted by the other party to be wrong” (CAS 2011/A/2384).

75. If the Sole Arbitrator considers that the Club bore the burden of proving that the alleged Second Contract is not a valid and binding contract, the Coach should, as a result of the Beweisnotstand in which the Club is, do more than simply refute that allegation out of hand. The Coach has a duty to provide further evidence to demonstrate that the Second Contract is valid and authentic.

C. With regard to the Club’s liability to the Coach under the First Contract

76. The terms of the First Contract are applicable to this dispute. However, taking into account that such contract was tacitly renewed (thus becoming an open-ended employment contract) and that it was terminated before two seasons had elapsed since it was executed, Clause 9 (“Breach and Termination”) is not applicable.

77. According to Sudanese Law, where the parties to a fixed-term contract continue to perform that contract after the expiry of its initial term, it automatically mutates into a contract without fixed duration. In addition, the situation is the same under Swiss Law (article 334 al.2 of the Swiss Code of Obligations).

78. Under Sudanese employment law, the notice period required to terminate an open-ended employment contract which does not contain a provision regarding the length of such period is one month. Under Swiss law, such notice period would be two months.

79. In the present case, the Club terminated the Coach’s employment contract on 17 April 2013, and thus the default notice period of one month means that the contract would have terminated on 17 May 2013. Therefore, under the First Contract, the Club owed the Coach the following amounts in respect of 2013:

- an initial one-off payment of USD 50,000, - four months’ salaries (January to April 2013, inclusive),

- a pro rata amount of the Coach’s salary for the period from 1 May 2013 until 17 May 2013 (i.e. the end of the default notice period under Sudanese law) in the amount of USD 5,484.

80. In addition to the one-off payment of USD 50,000, the Club already paid to the Coach four monthly salaries (USD 40,000) and thus it only neglected to pay the Coach the abovementioned USD 5,484 (i.e. the pro rata amount covering the first seventeen days of May), which the Club intends to pay to the Coach.

D. The compensation which would be owed under the alleged Second Contract

81. Subsidiarily, even if the Sole Arbitrator considers that the Second Contract is valid and authentic, the Single Judge of the FIFA Players’ Status Committee erred in the calculation of the compensation due to the Coach, as it disregarded the liquidated damages provision under article 10 of such contract.

82. There is nothing in the FIFA regulations, in Sudanese law or in Swiss law that invalidates such a liquidated damages provision in the event that it is not reciprocal. This has been also confirmed by the CAS case law (CAS 2013/A/3411; CAS 2009/A/1909) that has established that liquidated damages provisions of this nature are also valid and enforceable.

83. Therefore, pursuant to art. 17 para. 2 of the FIFA Regulations on the Status and Transfer of Players, which provides that the amount of compensation may be “stipulated in the contract or agreed between the parties”, clause 10 of the alleged contract should be applied in case the Sole Arbitrator finds that the alleged Second Contract is valid, and thus the damages due to the Coach in the event of an unilateral termination of the contract will be limited to six monthly salaries (i.e. USD 60,000) and two airplane tickets.

IV.2 THE RESPONDENT

84. The Respondent’s submissions, in essence, may be summarized as follows:

A. As to the facts

85. On 16 December 2011, the Respondent entered into an employment contract with the Appellant. At the same time, Mr. Frédéric Anikine and Mr. Anthony Garzitto also entered into respective employment agreements, as goalkeeper coach and as fitness coach, respectively.

86. During the season 2012, under the direction of the Respondent, the Appellant won the national Championship of Sudan. In addition, in that season, the Club reached the semi-finals of the Orange CAF Confederation Cup. Therefore, the season 2012 cannot be described as “mediocre”, as suggested by the Appellant.

87. In light of the successful season 2012, the Club wanted to hire the Coach for the season 2013. The President of the Club at that time (Mr. Al-Birair) was convinced about the Coach’s experience and thus he had to accept all the conditions imposed by the Respondent to sign a new contract.

88. In November 2012, the Respondent received from the Appellant the sum of USD 73,000 and a cheque of SDG 238,000 to fully settle the salary payments related to the First Contract. This cheque has never been paid since “it had been post-dated to July 2014”.

89. The President of the Appellant (Mr. Al-Birair), supported by a Sudanese businessman called Mr. Abubaker Alaskalani, made a contract proposal that was accepted by the Respondent and that included an annual salary of USD 600,000. This new contract was discussed and prepared during the month of December, before the departure of the Respondent to France to rest. Indeed, the signing of the new contract took place in January 2013 at the President of the Appellant’s place, just before the departure of the team to Ethiopia, for a training camp.

90. The new contract was signed before the President of the Appellant, Mr. Al-Birair, the Sports Director of the Club, Mr. Khaled Bakheet, the advisor to the President, Mr. Ali Gagarine, a translator (Mr. Ali Hassan), the FIFA Agent Mr. Abdou Karim Dieng, the Fitness Coach of the team, Mr. Anthony Garzitto, and before the physiotherapist of the team, Mr. Jean-Charles Déléan. On the day of the signing of the new contract and pursuant to article 5 of such contract, the Appellant paid to the Respondent USD 50,000 (signing-on fee) and USD 10,000 (salary of January 2013).

91. On the same day, both Mr. Jean-Charles Déléan (the physiotherapist) and Mr. Anthony Garzitto (the fitness coach) entered into new employment contracts with the Appellant. Afterwards, during the training camp in Ethiopia, Mamadu Sow (assistant coach) also entered into a new employment agreement with the Appellant.

92. The Coach did not receive his salaries as provided in article 5 of the new employment contract.

93. On 17 April 2013, the Club decided to unilaterally terminate the Second Contract, as well as the 2013 employment contracts of its technical staff (Mr. Jean-Charles Déléan, Mr. Anthony Garzitto and Mr. Mamadu Sow), who did not receive their salaries either.

94. By means of two settlement agreements dated 27 April 2014, the Appellant undertook to pay USD 51,000 USD to Mr. Anthony Garzitto, and USD 24,000 to Mr. Jean-Charles Déléan. However, the Appellant has not fulfilled these obligations.

95. On May 2014, the President of the Club proposed the Coach to sign a new contract, which was refused by the Respondent. Within the conversations held in this regard, the President of the Club recognized that he had been misled by his advisor and member of the Board of Directors of the Club, Mr. Abubaker Alaskalani, who actually had committed himself to pay the salary of the Coach agreed in the Second Contract.

96. It makes no sense that the Appellant is denying having signed the Second Contract with the Respondent and that, at the same time, has recognized (by means of the settlement agreements signed with them on 27 March 2014) that the new employment agreements in 2013 of Mr. Anthony Garzitto and Mr. Jean-Charles Déléan, who were part of the Coach’s technical staff, are valid.

97. It is worth noting that the amount that the Appellant undertook to pay to Mr. Anthony Garzitto (USD 51,000) in the settlement agreement was higher than the total annual remuneration agreed in his 2012 employment contract (USD 48,000). This fact demonstrates that the 2013 employment contract of Mr. Anthony Garzitto was indeed a new contract and not an extension of the 2012 employment contract.

98. The written statement of Mr. Al-Birair dated 29 September 2014 that the Appellant has filed with its appeal is contradictory with what Mr. Al-Birair had previously declared to the press.

99. The written statement of Mr. Imad Eltayeb Mohamed Saleh produced by the Appellant is irrelevant because he was not a member of the Appellant Committee from 2011 to 2013.

B. As to the law

100. Sudanese law does not apply to the present case, which falls under the jurisdiction of FIFA.

101. Article 17 para. 1 and 2 of the FIFA Regulations on the Status and Transfer of Players are not applicable to the present case, as those provisions are only applicable to unilateral breaches of a player towards his club, which is not the case in the present matter. In any case, article 10 of the Second Contract already provides for compensation in case of unilateral breach of the contract.