Istanbul Spor AS v. Club Estoril Praia & Racine Coly & CAS 2023/A/10247 Racine Coly v. Club Estoril Praia

III. FACTUAL BACKGROUND

6. Below is a summary of the main relevant facts and allegations based on the Parties’ written submissions, oral pleadings and evidence adduced during these proceedings. Additional facts and allegations may be set out, where relevant, in connection with the legal discussion that follows. Although the Sole Arbitrator has considered all the facts, allegations, legal arguments and evidence submitted by the Parties in the present proceedings, it refers in this award (the “Award”) only to the submissions and evidence it considers necessary to explain its reasoning.

A. Background Facts

7. On 5 July 2021, the Player and Club Estoril concluded an employment contract (the “Player Contract”) valid until 30 June 2024.

8. The Player’s salary was agreed as follows (Clause 2 of the Player Contract):

“1. For the rendering of the activity mentioned in the previous Clause, the First Party undertakes to pay the Player the following global gross amounts: a) € 145. 000 ,00 for the activity rendered by the Player until the end of the sporting season 2021/2022 and the cession of the rights foreseen in the Eight Clause, amount which shall be paid in 12 (twelve) equal monthly instalments, in the gross amount of € 12.083,33, each, to be paid until the 5th day of the following month, which include the proportional amounts concerning vacation and Christmas allowances

and food allowance b) € 150.000,00 for the activity rendered by the Player until the end of the sporting season 2022/2023 and the cession of the rights foreseen in the Eight Clause, amount which shall be paid in 12 equal monthly instalments, in the gross amount of € 12.500,00, each. to be paid until the 5th day of the following month (…). c) € 155.000,00 for the activity rendered by the Player until the end of the sporting season 2023/2024 and the cession of the rights foreseen in the Eight Clause, amount which shall be paid in 12 equal monthly instalments, in the gross amount of € 12.916,167 each, to be paid until the 5th day of the following month (…).

2. The First Party also undertakes to pay the Second Party and his immediate family 1 (one) air ticket per sporting season, between Portugal and Senegal, round trip, for his exclusive use.

3. If the First Party’s main team finishes the 2021/2022 season in a position in the league table that determines that it will compete in the II Professional Football League in the 2022/2023 season, this sports employment contract will cease all effects on June 30th of 2022, pursuant to article 41, paragraph 1, al. d) of the collective labour agreement executed by the Professional Players’ Union and the Football League, without the need for any communication between the Parties.

4. If the First Party’s main team finishes the 2022/2023 season in a position in the league table that determines that it will compete in the II Professional Football League in the 2023/2024 season, this sports employment contract will cease all effects on June 30th of 2023, pursuant to article 41, paragraph 1, al. d) of the collective labour agreement executed by the Professional Players’ Union and the Football League, without the need for any communication between the Parties.”

9. In Clause 10 of the Player Contract, the parties stipulated notification requirements in case of a contractual breach:

“The Parties agree, following any violation of the present Sporting Employment Agreement and previously to any other initiative, to notify the other party in order to find a consensual solution to the dispute within 30 (thirty) days counting from the day of the notification, without which the violation will not be considered as a reason for the termination of the Agreement by any of the parties being this clause considered indispensable for the execution of the present Agreement and made in the mutual interest of the parties.”

10. In Clause 15 of the Player Contract, the consequences of an unlawful termination of the employment are addressed as follows:

“Should one of the Parties terminate the present Contract invoking just cause and this is not acknowledged in Court, the Party which terminated the Contract illegally must compensate the other Party for the damages caused, agreeing the Parties that the amount of the penalty clause is:

a) If the First Party [Club Estoril] terminates the Contract illegally, it is obliged to pay to the Player compensation corresponding to the amount of the remunerations due until the term of the Contract, although it may deduct from the compensation the amounts that the Player should receive for the rendering of the same activity to another sporting entity during the period of time corresponding to the term of the terminated Contract; b) If the Second Party [the Player] terminates the Contract illegally, namely due to the violation of the previous Clause, his transfer to a third Club depends on the payment to the First Party of the amount of € 10.000.000,00 regardless of the right of the First Party to demand from the Player the payment of the compensation foreseen in the labor legislation. To this extent, it is assumed that any Club which executes an employment contract with the Player induced him to terminate this Contract without just cause, with the consequent damages to the First Party.”

11. In May 2022, the Player travelled to Senegal after the end of the 2021-22 season.

12. On 27 May 2022, Club Estoril submitted documents relating to the Player (including an “Expression of Interest”, the Player Contract and a letter with explanations, the “Player Documents”) to the Portuguese embassy in Senegal.

13. In June 2022, Club Estoril purchased a flight ticket for the Player.

14. On 18 June 2022, the Player asked Club Estoril to speak with his agent because of an alleged problem with the completion of the necessary paperwork allowing him to return to Portugal. His return flight to Portugal had been scheduled for 20 June 2022 (with Club Estoril having paid the respective ticket).

15. On 21 June 2022, the Player requested Club Estoril’s in-house counsel to send the Player Documents to the Portuguese embassy in Senegal once again. The Player did not report to work on 27 June 2022, as ordered by Club Estoril.

16. In June, July and August 2022, Club Estoril contacted the Player several times regarding his return to Portugal and the status of his visa required for the return.

17. On 22 August 2022, the Senegalese authorities issued the Player’s visa.

18. On 31 August 2022, the Player was enrolled in the Portuguese League.

19. On 20 October 2022, Club Estoril sent a “notice of fault” to the Player opening disciplinary proceeding against him and inviting him to file his position.

20. On 26 October 2022, the Player replied in writing denying the charges.

21. On 27 October 2022, the Player sent a default notice to Club Estoril requesting his salaries for August and September 2022 and the provision of accommodation.

22. On 9 December 2022, Club Estoril issued a “final decision” deeming that the charges

against the Player had been proven and that the appropriate disciplinary sanction was the immediate dismissal of the Player for just cause (hereinafter the “Termination”).

23. On 8 February 2023, the Player sent a default notice to Club Estoril alleging that the Termination by Club Estoril was without just cause and requesting overdue salaries and compensation.

24. By e-mail to the Player’s legal counsel of 17 February 2023, Club Estoril offered to hold a meeting “on a day, time and place that you consider convenient, in order to better address the issue at hand and perhaps find a consensual solution to the dispute.” A meeting was held on 24 February 2023 without that any settlement of the matter could be reached.

25. On 24 February 2023, Club Estoril filed a claim against the Player before the Portuguese Tribunal Arbitral do Desporto (“TAD”) requesting compensation on the basis that lawfully terminated the Player Contract for just cause. The Player did not participate in these proceedings.

26. On 26 February 2023, the Player filed a claim against Club Estoril before the FIFA Football Tribunal, requesting outstanding salaries and compensation.

27. On 21 July 2023, Istanbul Spor sent an e-mail to Club Estoril, transmitting the form of the “Proof of Last Contract End Date” (the “POLCED”). On the same day, Club Estoril returned the Stamped POLCED, signed by its General Manager Guilherme Müller, and stating as follows:

“By signing this document, I confirm that the employment contract between Estoril Praia – Futebol, SAD, and the Player RACINE COLY has ended on 09.12.2022.”

28. On 24 July 2023, Istanbul Spor and the Player signed a professional player contract (the “Subsequent Player Contract”), based on the signed and stamped POLCED sent by Club Estoril to Istanbul Spor.

B. The Proceedings before the FIFA Football Tribunal

29. On 26 February 2023, the Player filed a claim against Club Estoril before the FIFA Football Tribunal, requesting outstanding salaries and salary compensation (totaling EUR 242,500.00) for the 2022-23 and 2023-24 seasons, together with a declaration that the termination of the Player Contract by Club Estoril was without just cause.

30. On 10 April 2023, Club Estoril filed a counterclaim against the Player, requesting compensation in the amount of EUR 242,500.00 due to the Player’s breach, and a penalty of EUR 10,000,000.00 to fall due upon the Player’s registration with a third club occurring until 30 June 2024.

31. Upon FIFA’s invitation, Istanbul Spor intervened in the proceedings.

32. On 16 October 2023, the Dispute Resolution Chamber of the FIFA Football Tribunal

passed its decision (the “Appealed Decision”). On 30 November 2023, FIFA notified to the Parties the grounds of the Appealed Decision.

33. The operative part of the Appealed Decision reads as follows:

“1. The claim of the Claimant / Counter-respondent, Racine Coly, is admissible. 2. The claim of the Claimant / Counter-respondent, Racine Coly, is rejected. 3. The counterclaim of the Respondent / Counter-claimant, Estoril Praia, is admissible. 4. The counterclaim of the Respondent / Counter-claimant, Estoril Praia, is partially accepted. 5. The Claimant / Counter-respondent must pay to the Respondent / Counterclaimant the following amount(s): - EUR 161,250 as compensation for breach of contract without just cause plus 5% interest p.a. as from 10 April 2023 until the date of effective payment. 6. The intervening party, Istanbulspor, is jointly and severally liable for the payment of the compensation under point 5 above.”

34. With respect to its finding that the Termination declared by Club Estoril was justified, the Appealed Decision explained as follows:

“91. The foregoing having been established, the Chamber moved to the substance of the matter, and took note of the fact that the parties strongly dispute the justice of the early termination of the Contract by Estoril on 9 December 2022.

92. In this context, the Chamber went on to analyse the allegation of Estoril – disputed by the Player – that the temporary absence of the latter for a period of approximately 6 months, without authorisation or justification, consisted of a breach of contract on his part.

93. In this scenario, the Chamber recalled its long-standing jurisprudence, according to which only a breach or misconduct which is of a certain severity justifies the termination of a contract. In other words, only when there are objective criteria which do not reasonably permit to expect the continuation of the employment relationship between the parties, a contract may be terminated prematurely. Hence, if there are more lenient measures which can be taken in order for an employer to assure the employee’s fulfilment of his contractual duties, such measures must be taken before terminating an employment contract. A premature termination of an employment contract can only be an ultima ratio.

94. The Chamber underlined that, in accordance with its well-established jurisprudence, a longlasting absence of a Player from his club without authorisation and without any other justification consists of a valid reason to suspend the payment of the Player’s salaries and is to be considered as an unjustified breach of the employment contract by the Player.

95. With the above in mind and after having carefully analysed the parties’ submissions, the Chamber concluded that the Player’s absence of approximately 6 months was indeed a long one and no substantial evidence of such absence having been authorised by the club or otherwise justified by any other particular circumstances was provided by the Player in his submissions to the Chamber.

96. In particular, the Player is unspecific in his submissions as to what “vicissitudes” he experienced for not being able to return and therefore failed to properly substantiate his argumentation. The Chamber acknowledges in this respect that both parties recognise that for a period of around 3 months there were issues in obtaining the renewal of the Player’s visa. However, at the same time, the Chamber underlines that the Player acknowledges that on 22 August 2022 he was in possession of a valid visa to return to Portugal. As from that moment on, the Player should have returned to Portugal, but he failed to do so, instead sending a default notice in October 2022 for the salaries of August and September 2022; salaries that would presumably been paid if the Player would have returned to Portugal as soon as his visa was obtained. Given the circumstances, the Chamber finds that the Player had no justification not to return to Portugal as from 22 August 2022, and also considers that by that time Estoril had no outstanding obligations towards the Player.

97. Furthermore, Estoril provides evidence that a disciplinary proceeding was conducted, including a written submission and hearing, which the Player attended via video conference and was assisted by a legal representative. In this proceeding the Player admitted that he had not returned from Senegal but adduces that it is due to his lack of sufficient means to purchase a flight which costs “around EUR 1,000 – 1,200”. However, the Chamber observed that Estoril had already purchased a flight ticket for the Player in June 2022, reason for which the Chamber deemed that this was no longer the obligation of the Club in August 2022.

98. The Chamber noted that during the said disciplinary proceeding or in this claim, the Player had neither provided any evidence of attempting to return to Portugal nor that his absence was consented or authorised by Estoril.

99. Therefore, the Chamber understood that the Player indeed committed a severe breach of the employment contract and that the suspension of the payment of his remuneration for the months he was absent, and the subsequent termination of the Contract by Estoril, was indeed justified and the termination of the contract by Estoril was with just cause.”

35. Regarding the consequences of Club Estoril’s justified Termination, the Appealed Decision found that Clause 15 of the Player Contract could not be taken into account for establishing the payable compensation, because it lacked both reciprocity and proportionality. As a consequence, the Appealed Decision determined the amount of compensation in accordance with the criteria listed in Art. 17 (1) of the FIFA Regulations on the Status and Transfer of Players (“FIFA RSTP”) as follows:

105. As a consequence, the Chamber determined that the amount of compensation payable by the Player to Estoril had to be assessed in application of the other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that said provision provides for a non-exhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable. 106. Bearing in mind the foregoing as well as the claim of Estoril, the Chamber proceeded with the calculation of the monies payable to the Player under the terms of the contract until its term. Consequently, the Chamber concluded that the amount of EUR 242,500 (i.e. the residual value from December 2022 until June 2024) serves as the basis for the determination of the amount of compensation for breach of contract. 107. In continuation, the Chamber verified whether the Player had signed an employment contract with another club during the relevant period of time. According to the constant practice of the Chamber as well as art. 17 par. 1 of the Regulations, such remuneration under a new employment contract shall be taken into account in the calculation of the amount of compensation for breach of contract due by a player to his former club. In particular, the Chamber explained that its standard practice is to calculate the average between the player’s remuneration with his former club and his remuneration with the new club, for the exact same period of time comprised between the early termination of the employment contract with the old club and the original expiry date of such contract. 108. In this respect, the Chamber noted indeed, the Player found new employment with Istanbulspor. In accordance with the pertinent employment contract, for the overlapping period (i.e. September 2023 – June 2024), the Player is entitled to EUR 80,000. 109. Thus, the Chamber concluded that between the date of early termination of the Player’s contract with his former club and its original expiry date, the average between his remuneration with Estoril and his current remuneration amounts to EUR 161,250 [242,500 + 80,000 / 2]. 110. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the Chamber decided that the Player must pay the amount of EUR 161,250 to Estoril, which was to be considered a reasonable

and justified amount of compensation for breach of contract in the present matter.”

IV. THE PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT

36. By e-mail of 19 December 2023, the Appellant filed its Statement of Appeal with the Court of Arbitration for Sport (the “CAS”) against the Appealed Decision, pursuant to Article R47 et seq. of the Code of Sports-related Arbitration (the “CAS Code”) (the “10241 Appeal”). The Appellant requested the appointment of a sole arbitrator.

37. On 21 December 2023, the Second Respondent filed his Statement of Appeal with the CAS against the Appealed Decision (the “10247 Appeal”). The Second Respondent also requested the appointment of a sole arbitrator, to be appointed from the CAS Football List.

38. On 29 December 2023, relating to the 10241 Appeal, the CAS Court Office informed that it had not received the Appellant’s Statement of Appeal in hard copy or via the CAS e- Filing platform (access to which had been granted to the Appellant on 20 December 2023). The Appellant was requested to provide the CAS Court Office with proof of its filing of the Statement of Appeal via courier or the CAS e-Filing platform. On the same day, the Appellant uploaded the Statement of Appeal to the CAS e-Filing platform.

39. By correspondence of 1 January 2024, the Appellant explained that it had dispatched seven copies of the Statement of Appeal via courier (through the DHL Express Service Point) on 20 December 2023. It submitted by e-mail copies of a delivery receipt and photos as evidence that the shipment had been dispatched on 20 December 2023.

40. On the same day, the Appellant filed its Appeal Brief relating to the 10241 Appeal.

41. On 9 January 2024, the Second Respondent filed his Appeal Brief relating to the 10247 Appeal.

42. On 15 January 2024, the CAS Court Office informed the Appellant that it had not received the Statement of Appeal via courier. The Appellant was requested to provide an update of its submission of the Statement of Appeal by courier within three days.

43. By e-mail of 17 January 2024, the Appellant informed the CAS Court Office that due to a human error provoked by the intensity of the holiday season, the shipment containing its copies of the Statement of Appeal was not forwarded from the DHL Service Point to DHL. On the same day, the CAS Court Office requested the Appellant to produce all records which demonstrated that the shipment was kept among the “Lost-Returned, Undeliverable” shipments. The Appellant provided its response on 19 January 2024.

44. By letters of 25 January 2024, the First Respondent requested that the 10241 Appeal and the 10247 Appeal be submitted to panels of three arbitrators, respectively. For both cases, the First Respondent nominated Mr Efraim Barack as arbitrator.

45. On the same day, the Appellant submitted two translations as Exhibits 11 and 12, requesting that these exhibits be admitted to the record. While the First Respondent objected the admissibility of the additional exhibits, the Second Respondent agreed to admit them to the case file.

46. By letter of 26 January 2024, the CAS Court Office informed the Parties of the consolidation of the 10241 Appeal and the 10247 Appeal (jointly referred to as the “Appeals”), following the Parties’ respective agreement.

47. By letter of 30 January 2024, FIFA renounced its right to request its possible intervention in the present arbitration proceedings.

48. On 12 February 2024, the Second Respondent submitted his Answer in the 10241 Appeal.

49. On 16 April 2024, the First Respondent submitted its Answer for both Appeals.

50. On 17 April 2024, 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 the panel appointed to decide the present matter was constituted as follows:

Sole Arbitrator: Ms Annett Rombach, Attorney-at-Law, Frankfurt am Main, Germany

51. On 24 April 2024, the CAS Court Office informed the Parties that the Sole Arbitrator had decided to hold a hearing by videoconference in this matter. In the following days, the Sole Arbitrator and the Parties conferred in respect of a suitable hearing date.

52. On 15 May 2024, the CAS Court Office informed the Parties that the online hearing was scheduled to take place on 4 July 2024.

53. On 28 May 2024, the CAS Court Office transmitted the Order of Procedure to the Parties. The Second Respondent and the Appellant returned duly signed copies of the Order of Procedure on 2 and 3 June 2024, respectively.

54. On 1 and 3 July 2024, the First Respondent sent comments on the Order of Procedure to the CAS Court Office. The CAS Court Office informed the First Respondent that any comments on the Order of Procedure shall be made directly in the document.

55. On 2 July 2024, the CAS Court Office sent the Parties a tentative hearing schedule.

56. Also on 2 July 2024, the First Respondent submitted a decision of the Portuguese Court of Arbitration for Sport dated 27 May 2024, allegedly addressing the same claims as the present proceedings (“TAD Decision”). The First Respondent requested that the TAD Decision be taken into consideration against the Player.

57. On 4 July 2024, an online hearing took place. At the outset of the hearing, all Parties confirmed that they had no objections to the constitution and composition of the panel.

58. In addition to the Sole Arbitrator and Mr Björn Hessert, Counsel to the CAS, the following persons attended the video hearing:

For Istanbul Spor: Mr Sercan Teker, Counsel Ms Anıl Gürsoy Artan, Counsel

For Club Estoril: Mr João Lobão, Counsel Mr Ricardo Magalhães Tavares, Counsel

For Mr Coly: Mr Racine Coly, Second Respondent Mr Pedro Macieririnha, Counsel Mr Joaquim de Almeida Pizarro, Counsel

Witnesses: Ms Andreia Cunha, Club Estoril Praia Mr Vasco Varão, Club Estoril Praia Mr Francisco Costa, Club Estoril Praia

59. The hearing began at 9:30 am and ended at 6:40 pm without any technical interruption or difficulty. The Parties were given the opportunity to present their cases, to make their submissions and arguments and to answer questions posed by the Sole Arbitrator. The First Respondent submitted new documentary evidence, which was shared with all Parties and on which the Parties were given the opportunity to comment. After the Parties’ final and closing submissions, the hearing was closed and the Sole Arbitrator reserved her detailed decision for this Award.

60. At the end of the hearing, the Parties expressly confirmed that they had no objections in relation to their respective rights to be heard and that they had been treated equally in these arbitration proceedings.

61. On 10 July 2024, upon a respective reminder by the CAS Court Office, the First Respondent submitted a duly signed copy of the Order of Procedure.

62. On 10 October 2024, the Appellant filed a submission introducing the decision rendered by the Second Chamber of the Court of Justice of the European Union on 4 October 2024, (C-650/22, hereinafter the “Diarra Decision”). Both Respondents were invited by the CAS Court Office to comment on the Diarra Decision. The first Respondent filed comments on 31 October 2024.

63. On 10 January 2025, the Appellant submitted further information on the Diarra Decision, more specifically a link to the FIFA Circular No. 1917 dated 23 December 2024 (“FIFA Interim Regulations”). The First Respondent filed comments on 15 January 2025.

64. In reaching the present decision, the Sole Arbitrator has carefully taken into account all the evidence and the arguments presented by the Parties, even if they have not been summarised in the present Award.

V. THE POSITIONS OF THE PARTIES

65. The following outline of the Parties’ positions is illustrative only and does not necessarily comprise every submission advanced by the Parties. The Sole Arbitrator confirms, however, that she has carefully considered all the submissions made by the Parties, whether or not there is specific reference to them in the following summary.

A. Istanbul Spor’s Position and Request for Relief

66. Istanbul Spor submits the following in substance: On the admissibility of its Statement of Appeal: • The Statement of Appeal must be considered to have been filed on time. The Appellant dispatched seven copies of the Statement of Appeal on 20 December 2023, and it was only due to a “human error” at the DHL Service Point that the shipment was not delivered to the CAS, but wrongly categorized as an “undeliverable” parcel and held mistakenly at the DHL Service Point amongst the “Lost-Refunded-Undeliverable” shipments. The Appellant only found out about the mistake on 15 January 2024, upon CAS’s information that no courier shipment

had been received by it. On the merits of its Appeal:

• Club Estoril is not entitled to any compensation, because its termination of the Player Contract was not supported by just cause. While it is true that the Player was absent from Club Estoril for 60 days, his absence was Club Estoril’s fault, not the Player’s. Club Estoril bore responsibility for the Player’s work permit and visa and it failed to provide both so that the Player could not return to Portugal.

• The Player’s only responsibility in respect of obtaining his visa for Portugal was to submit the visa documents to the Portuguese authorities in Senegal, while all subsequent actions should have been undertaken by Club Estoril.

• Club Estoril sent incorrect documents to the Player, which resulted in significant errors in his visa application.

• The visa eventually granted to the Player, covering the period from 18 August 2022 to 15 December 2022 (i.e. a duration of less than 4 months), did not guarantee the continuation of the contractual relationship until the designated expiry date of the Player Contract, which was 30 June 2024.

• The fact that Club Estoril asked the Player for a mutual termination of the Player Contract during the visa application process, indicates that it had no desire to continue the employment relationship with the Player. Consequently, it did not unfold sufficient efforts in obtaining the Player’s visa.

• Club Estoril failed to honor Clause 10 of the Player Contract, which required that it puts the Player on notice before termination. For the same reason, the termination was not supported by just cause. As a result of the unjust termination, the Player became a “free agent”.

• Article 17 (2) of the FIFA RSTP is inapplicable because the Appellant neither provoked the alleged breach nor the termination of the Player Contract. Club Estoril should not benefit from the protection of Article 17 (2) of the FIFA RSTP under the circumstances of the present case. The Appealed Decision completely ignored the Appellant’s arguments presented during the first instance proceedings.

• Before signing the Subsequent Player Contract with the Player, the Appellant had been informed by the Player that his contract with Club Estoril had been mutually terminated due to “family reasons”.

• The Appellant even confirmed the termination of the Player Contract with Club Estoril, which sent the signed and stamped POLCED indicating that the Player Contract had ended already in December 2022. The Appellant communicated with Club Estoril through the official e-mail addresses registered in the FIFA Transfer Matching System (“TMS”).

• The Appellant understood from the information received from the Player and Club Estoril that there was no unilateral termination of the Player Contract between the

Respondents. Only upon its reassurance of the absence of a unilateral termination, the Appellant initiated contract negotiations with the Player. That the Appellant believed in a natural expiration of the Player Contract is also evidenced by the request for the International Transfer Certificate (“ITC”), in which it chose the option “contract expired” (instead of “unilaterally terminated”).

• In accordance with Annex, Title IV, Article 11 (2) a) of the FIFA RSTP,1 and upon a respective request by the Portuguese Football Federation, the First Respondent confirmed that the Player Contract between the Player and Club Estoril had “expired”. Both the Portuguese Football Federation and the First Respondent had an obligation to notify the Appellant of the unilateral termination of the Player Contract.

• It would be unfair to sanction the Appellant under Article 17 (2) FIFA RSTP. The Appellant fully met its obligations when it contracted the Player. The Appellant applied the principle of “bona fides” during the conclusion of the Subsequent Player Contract and obtained confirmation from all parties involved in the Player’s transfer that, to the best of their knowledge, the transfer was a free transfer due to the natural expiry of the Player Contract.

• Even if Club Estoril’s termination was justified (quod non), the calculation of damages should consider “net” instead of “gross” amounts. Otherwise, Club Estoril would be unjustly enriched by receiving unpaid taxes under the guise of compensation. The compensation amount determined in the Appealed Decision (EUR 242,500.00 gross) should be reduced to EUR 126,100.00 net (after a 48% tax deduction).

• According to Turkish tax law, the tax deduction on payments to athletes is 35%. The net amount of the Player’s gross salary under the Subsequent Player Contract (EUR 80,000.00) would be EUR 52,000.00 (EUR 80,000.00 minus 35%). In conclusion, the compensation payable to Club Estoril would be at maximum of EUR 89,050.00 ([126,100.00 + 52,000.00] / 2). On the impact of the Diarra Decision and the FIFA Interim Regulations:

• The Diarra Decision held that a new club cannot be held jointly and severally liable for a contract termination if it played no role in such termination. This decision, protecting the free movement of workers and competitions of undertakings, is binding on FIFA and also impacts the present case, as it applies retroactively. Since Istanbul Spor bears no responsibility for the termination of the Player Contract, Article 17 (2) FIFA RSTP is inapplicable.

• On 1 January 2025, the FIFA Interim Regulations entered into force. They included a revision of Article 17 (2) of the FIFA RSTP, which now reads as

Annex, Title IV, Article 11 (2) of the FIFA RSTP reads as follows: Where the player was a professional at his former club, upon notification of the ITC request, the former association shall immediately request the former club to confirm whether or not: a) the employment contract has expired; or b) an early termination was mutually agreed.

follows: “[…] A player’s new club shall be held jointly liable to pay compensation if, having regard to the individual facts and circumstances of each case, it can be established that the new club induced the player to breach their contract.”

67. In its Appeal Brief, Istanbul Spor requests the following relief:

“1. Acceptance of our appeal and deciding that the annulment of the DRC decision subject to appeal, 2. Deciding that the termination is a termination without just cause and rejection of the claims of the First Respondent, 3. In case the termination is deemed a termination with just cause: a. Deciding that, due to the malicious and intentional actions of the First and Second Respondents, the joint and several liability of the Appellant regarding compensation is lifted under Article 17/2 of the RSTP, and determining that, based on official documents such as the ITC carrying the approval of FIFA and Turkiye and Portugal Footbal Federations, and the POLCED with the approval of the First Respondent, the Appellant is not liable for compensation, b. Deciding that the Appellant has no any responsibility (including all the sanctions) due to the relevant termination and decision, c. Deciding that the responsibility for compensation is solely the responsibility of the Second Respondent due to culpable actions of him, d. Due to the incorrect calculation of the compensation amount based on gross figures, deciding that the amounts should be calculated as net in accordance with the relevant tax regulations and the compensation amount is 89,050 Euros, e. Deciding that this new compensation amount, in line with the responsibility for his wrongful actions, will be paid solely by the Second Respondent, f. In the event that only the Second Respondent is held responsible for compensation, deciding that sanctions applicable to the Second Respondent for fulfilling this responsibility should be determined in a way that does not harm the Appellant, g. In the event that the Appellant is held responsible for damages, a decision should be made that allows the Appellant to recover the compensation amount from the Second Defendant, based on the bad faith and conduct contrary to the principle of good faith by the Second Defendant. 4. To impose on the First and the Second Respondent the obligation to cover the entire CAS administration costs, arbitrators' fees, legal expenses, and attorney fees incurred in relation to the DRC and CAS decisions.”

B. Club Estoril’s Position and Request for Relief

68. Club Estoril submits the following in substance:

On the admissibility of Istanbul Spor’s Statement of Appeal:

• Istanbul Spor’s Statement of Appeal is inadmissible, because it did not upload its submission to the CAS e-Filing Platform, or submitted it for courier delivery, within due time. On the merits of the Appeals:

• The Player was obligated to return to Estoril by 27 June 2022 but failed to do so. He failed to provide any evidence about the initiation of the required visa procedures in Senegal before this date. Club Estoril had provided the Player with the relevant documents and support to obtain the visa, but the Player undertook no effort to contact the Portuguese embassy in Senegal. The first time the Player informed Club Estoril about a problem with his visa was two days before his return flight to Portugal.

• The Player failed to provide any justification for his absence from Club Estoril between 27 June 2022 and 20 October 2022 (i.e. more than 60 days). For this reason, Club Estoril was entitled to send the Player a notice of fault on 20 October 2022.

• Club Estoril paid the Player’s flight ticket to Senegal (including extra baggage, which it was not contractually obligated to do), and his return ticket for the flight from Senegal to Portugal, scheduled for 20 June 2022.

• Club Estoril was not obligated to pay the Player an extra ticket, and the Player never asked for one after he had finally obtained his visa. The Player’s assertion that he could not afford a flight ticket for appr. EUR 1,000.00 is not credible. After his departure from Portugal for summer break, he had received EUR 20,000.00 (net) in salaries and holiday allowance.

• The Player’s behavior was consistent with a total reluctance to return to Club Estoril and perform his duties, and all the reasons given were merely tenuous excuses not to comply with the Player Contract.

• Club Estoril fully complied with the requirements of Clause 10 of the Player Contract. At first, it tried to help the Player with the issuance of his visa, then offered the Player a mutual termination of the employment relationship, then initiated disciplinary proceedings in order to allow the Player to present his version and only – as an ultima ratio – did it decide to terminate the Player Contract for just cause.

• Having given cause for the termination of the Player Contract, the Player must indemnify Club Estoril for the total amount of EUR 242,500.00 corresponding to the residual amount the Player would have received had he fulfilled his contractual

obligations. • The TAD Decision confirmed the validity of Club Estoril’s claims and must be taken into account by the Sole Arbitrator.

69. Club Estoril requests the following relief:

“I. Estoril SAD requests to the honourable Court of Arbitration of Sport to immediately reject the appeal lodged by ISTANBUL SPOR AS on the procedure CAS 2023/A/10241 Istanbul Spor AS v. Club Estoril Praia & Racine Coly as it was not timely presented;

II. Estoril SAD requests to the honourable Court of Arbitration of Sport to DISMISS the appeals lodged by ISTANBUL SPOR AS on the procedure CAS 2023/A/10241 Istanbul Spor AS v. Club Estoril Praia & Racine Coly (if it is considered to have been timely filed) AND DISMISS the appeal lodge by the Player Racine Coly on the procedure CAS 2023/A/10247 Racine Coly v. Estoril Praia – Futebol, SAD;

III. Estoril SAD requests to the honourable Court of Arbitration of Sport to CONFIRM the decision passed by the FIFA Tribunal on the employmentrelated dispute concerning the player Racine Coly Ref. Nr. FPSD-9398, and consequently:

a. Recognize that Estoril SAD had just cause to terminate the Player’s sport employment contract; and;

b. Recognize that in light of FIFA Nr. FPSD-9398 Decision the Player shall be liable to pay EUR 161,250 to Estoril SAD as compensation for breach of contract without just cause plus 5% interest p.a. as from 10 April 2023 until the date of effective payment;

c. Recognize that ISTANBULSPOR, is jointly and severally liable for the payment of the compensation of EUR 161,250 to Estoril SAD as compensation for breach of contract without just cause plus 5% interest p.a. as from 10 April 2023 until the date of effective payment;

IV. To condemn the PLAYER and/or ISTANBULSPOR to pay of the whole CAS Administration costs and the Sole Arbitrator’s fee;

V. PLAYER and/or ISTANBULSPOR shall reimburse ESTORIL SAD legal fees in relation to this procedure in amount of EUR 20.000,00”

C. The Player’s Position and Request for Relief

70. The Player submits the following in substance:

On the admissibility of Istanbul Spor’s Statement of Appeal:

• Istanbul Spor’s Statement of Appeal is inadmissible, because it did not upload its submission to the CAS e-Filing Platform, or submitted it for courier delivery, within due time. On the merits of the Appeals:

• The Player’s absence from Club Estoril is not attributable to him. Club Estoril had failed to obtain a valid work permit for the Player, although it was contractually obligated to do so. Had Club Estoril obtained a valid work permit for the Player, the Player could have returned to Portugal without a visa.

• Club Estoril refused to pay for the Player’s and his family’s air travel from Senegal to Portugal, despite being contractually obliged to do so. Instead, Club Estoril sent a flight ticket to the Player for 20 June 2022 knowing that he would not be able to use it due to the expiration of his visa before the respective return date.

• The Player lacked the financial resources to buy a ticket on his own after he had obtained a visa.

• It is established CAS jurisprudence that it is a club’s responsibility to arrange for their players’ visas and work permits.

• The Player was prevented from returning to Portugal because he had no housing in Estoril. Club Estoril was obliged to pay for the Player’s accommodation throughout the duration of the Player Contract for which purpose it had entered into a lease agreement with a landlord. However, Club Estoril did not pay the respective rents, water and electricity charges for the months of June, July and August 2022. Consequently, the landlord terminated the lease agreement based on non-payment.

• Club Estoril’s termination of the Player Contract was not supported by just cause. The Player did not breach the Player Contract. Club Estoril failed to honor the procedure for finding an amicable solution under Clause 10 of the Player Contract. It was the Player who was entitled to terminate the Player Contract as a result of the club’s breaches.

71. In his Statement of Appeal in the 10247 Appeal, the Player requested the following relief:

“The Appellant hereby respectfully requests the Court of Arbitration for Sports to:

a) Accept the present appeal against the Decision of FIFA Football Tribunal passed on 16 October 2023, regarding an employment-related dispute concerning the player Racine Coly, with the composition Frans DE WEGER (The Netherlands), Chairperson Mario FLORES CHEMOR (Mexico), member Roy VERMEER (The Netherlands), member, with the Ref. FPSD 9398, which ruled that: (Exhibit 1).

1. The claim of the Claimant / Counter-respondent, Racine Coly, is admissible. 2. The claim of the Claimant / Counter-respondent, Racine Coly, is rejected. 3. The counterclaim of the Respondent / Counter-claimant, Estoril Praia, is admissible. 4. The counterclaim of the Respondent / Counter-claimant, Estoril Praia, is partially accepted. 5. The Claimant / Counter-respondent must pay to the Respondent / Counter-claimant the following amount(s): - EUR 161,250 as compensation for breach of contract without just cause plus 5% interest p.a. as from 10 April 2023 until the date of effective payment. 6. The intervening party, Istanbulspor, is jointly and severally liable for the payment of the compensation under point 5 above. 7. Any further claims by any of the parties are rejected. b) Set aside the Appealed Decision. c) To carry out an Award with the following provisions: The claim of the Appellant towards the Dispute Resolution Chamber of FIFA was admissible; The Appellant hasn’t terminated the employment contract with the Respondent without just cause; To condemn the Respondent Club to pay to the Appellant the following amounts regarding outstanding salaries: i) August 2022, in the gross amount of 12 500,00 €, overdue on 5 September 2022; ii) September 2022, in the gross amount of 12 500,00 €, overdue on 5 October 2022; iii) October 2022, in the gross amount of 12 500,00 €, overdue on 5 November 2022; iv) November 2022, in the gross amount of 12 500,00 €, overdue on 5 December 2022. TOTAL = 50.000,00 € plus interest at 5% rate since the overdue dates until effective payment. The Panel shall condemn the Respondent Club to pay to the Appellant the compensation in the total amount of 242 500,00 €, plus interest at 5% rate since 9 December 2022 until effective payment, for termination of the contract without just cause.

All according to the Sporting Employment Contract signed by the parties, the FIFA Statutes and regulations, as well the specificity of sport, under penalty of imposition of disciplinary measures to the Respondent if the above obligation is not observed. d) Condemn the Respondent Coach to pay the whole CAS administration and Arbitrators fees”

72. In his Appeal Brief, the Player adjusted his prayers for relief as follows:

“The Appellant hereby respectfully requests the Court of Arbitration for Sports to:

a) Accept the present appeal; b) Set aside the Appealed Decision in full; c) To carry out an award as follows:

• The Panel shall declare that the termination of the Contract signed between the parties was unilaterally terminated by the Respondent without just cause.

• The Panel shall condemn the Respondent Club to pay to the Appellant the following amounts regarding outstanding salaries: i) August 2022, in the gross amount of 12 500,00 €, overdue on 5 September 2022; ii) September 2022, in the gross amount of 12 500,00 €, overdue on 5 October 2022; iii) October 2022, in the gross amount of 12 500,00 €, overdue on 5 November 2022; iv) November 2022, in the gross amount of 12 500,00 €, overdue on 5 December 2022. TOTAL = 50.000,00 € plus interest at 5% rate since the overdue dates until effective payment. The Panel shall condemn the Respondent Club to pay to the Appellant the compensation in the total amount of 242 500,00 €, plus interest at 5% rate since 9 December 2022 until effective payment, for termination of the contract without just cause.

• The Appellant must not pay to the Respondent the following amount(s):

• EUR 161,250 as compensation for breach of contract without just cause plus 5% interest p.a. as from 10 April 2023 until the date of effective payment.

• The intervening party, Istanbulspor is not jointly nor severally liable for the payment of the compensation under point 5 of the appealed decision and 297 above.

• Condemn the Respondent to pay the whole CAS administration and the Arbitrators fees;

• Grant to the Appellant a contribution towards its legal fees and other expenses incurred in connection with the proceedings, taking in account the complexity and outcome of the proceedings, as well as the conduct and the financial resources of the parties.”