Smouha SC v. Abdul Aziz Yusif, Asante Kotoko FC, Fédération Internationale de Football Association (FIFA), Ismaily Sporting Club

II. FACTUAL BACKGROUND

7. Below is a summary of the main relevant facts, as established on the basis of the parties’ written submissions and the evidence examined in the course of the present appeals arbitration proceeding and at the hearing. This background is made for the sole purpose of providing a synopsis of the matter in dispute. Additional facts may be set out, where relevant, in connection with the legal analysis.

A. Background Facts

8. On 31 December 2012, the Player and Asante Kotoko entered into an employment contract for a period of three years, valid as from the date of signing until 30 December 2015.

9. On 17 July 2014, Ismaily presented a written offer to Asante Kotoko to acquire the services of the Player for an amount of USD 100,000 as well as “20% from the next transfer”, which offer was accepted on the same day.

10. Also on 17 July 2014, the Player signed a document named “Formal Offer for: Abdul Aziz Yusif” (the “Formal Offer”) sent to him by Ismaily, according to which the Player was offered an employment contract for a period of five sporting seasons for a total remuneration of USD 570,000.

11. On 20 July 2014, Ismaily informed Asante Kotoko that it would pay the amount of USD 100,000 “once the player passes the medical test scheduled once he reaches Egypt as we are preparing his papers to enter the country nowadays”.

12. On 1 August 2014, Asante Kotoko informed Smouha that its management had accepted their “offer of ABDUL AZIZ YUSIF for a transfer fee of USD 100,000 (one hundred thousand dollars) and 20% as onward transfer”.

13. On 2 August 2014, Ismaily informed Asante Kotoko that the Player had received the visa to enter Egypt, confirming its interest in the Player and stating that “the money transfer once the player passes his medical check”.

14. On 11 August 2014, Smouha paid the transfer fee of USD 100,000 to Asante Kotoko.

15. On an unknown date, Smouha and the Player concluded an employment contract for a period of three years for a total remuneration of USD 973,230.

B. Proceedings before FIFA’s Dispute Resolution Chamber

16. On 28 July 2015, Ismaily lodged a claim against the Player for breach of contract with the FIFA Dispute Resolution Chamber (the “FIFA DRC”). Ismaily also called Smouha and Asante Kotoko as respondents, arguing that they induced the Player to breach his employment contract with Ismaily. Ismaily claimed an amount of USD 615,000 (USD 570,000 corresponding to the value of the formal offer and USD 45,000 for the specificity of sport) from the Player and requested that Smouha and Asante Kotoko were to be held jointly and severally liable. Finally, Ismaily requested the FIFA DRC to impose sporting sanctions on the Player, Smouha and Asante Kotoko.

17. The Player, Smouha and Asante Kotoko replied to Ismaily’s claim arguing that its arguments were unjustified and that the claim had to be rejected.

18. On 13 October 2016, the FIFA DRC rendered its decision (the “Appealed Decision”), with the following operative part:

“1. The claim of [Ismaily] against [the Player] and [Smouha] is partially accepted.

2. The claim of [Ismaily] against [Asante Kotoko] is rejected.

3. [The Player] is ordered to pay to [Ismaily] within 30 days as from the date of notification of this decision, compensation for breach of contract in the amount of USD 615,000 plus 5% interest p.a. on said amount as from 28 July 2015 until the date of effective payment.

4. [Smouha] is jointly and severally liable for the payment of the aforementioned compensation.

5. In the event that the aforementioned amount is not paid within the above-mentioned time limit, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision.

6. [Ismaily] is directed to inform [the Player] and [Smouha] immediately and directly of the account number to which the remittance is to be made and to notify the Dispute Resolution Chamber of every payment received.

7. A restriction of four months on his eligibility to play in official matches is imposed on [the Player]. This sanction applies with immediate effect as of the date of notification of the present decision. The sporting sanction shall remain suspended in the period between the last official match of the season and the first official match of the next season, in both cases including national cups and international championships for clubs.

8. Any further claim lodged by [Ismaily] is rejected”.

19. On 10 January 2017, the grounds of the Appealed Decision were communicated to the parties, determining, inter alia, the following:

- As to whether the Formal Offer established a final and binding employment contract between Ismaily and the Player, the FIFA DRC “recalled its well-established jurisprudence which dictates that in order for an employment contract to be considered as valid and binding, apart from the signature of both the employer and the employee, it should contain the essentialia negotii of an employment contract, such as the parties to the contract and their role, the duration of the employment relationship, the remuneration and the signature of both parties.

- With the above in mind, the Chamber acknowledged that the Formal Offer consisted of a document dated 17 July 2014, drafted on [Ismaily’s] headed paper, signed by [the Player] and stamped by [Ismaily]. According to such document, the parties established that the contract period would last five years and that [the Player] would be entitled to receive a total salary of USD 570,000. Moreover, the Chamber wished to underline that, from the contents of the Formal Offer, it is evident that the agreement of the parties related to the rendering of [Player’s] services as a football player against the payment of a salary by [Ismaily].

- Consequently, the Chamber continued that all the essentialia negotii are included in the Formal Offer, in order to be considered as a valid employment contract concluded between [Ismaily] and [the Player].

- Furthermore, and as to the argument of the Respondents that the Formal Offer was not a valid contract as it was not registered either at the [EFA] and/or on TMS, the Chamber wished to emphasize that, as a general rule, the registration of an employment contract at a federation and/or on TMS does not constitute a condition for its validity. In this regard, the Chamber considered relevant to recall its jurisprudence in accordance with which the validity of an employment contract cannot be made conditional upon the execution of (administrative) formalities, such as, but not limited to, the registration procedure in connection with the international transfer of a player, which are of the sole responsibility of a club and on which a player has no influence”.

- As to the question of the alleged breach of contract without just cause by the Player, “the Chamber was eager to highlight that based on the parties’ respective statements and the documentation available on file, it was undisputed that [the Player] never joined [Ismaily] in order to offer his services to the latter in accordance with the relevant employment contract. Also, it is undisputed that, in August 2015, [the Player] signed an employment contract with [Smouha] covering partially the same period of time as the employment contract the [Player] signed with [Ismaily]. By acting as such, the Chamber concurred that [the Player] had acted in breach of the employment contract concluded with [Ismaily] and is therefore to be held liable for breaching the contract without just cause”.

- After having established that the Player’s breach took place within the “protected period” as defined in item 7 of the “Definitions” section of the FIFA Regulations on the Status and Transfer of Players (the “FIFA RSTP”), the FIFA DRC turned its attention to the question of the consequences of such breach.

- “In doing so, the Dispute Resolution Chamber established that, in accordance with art. 17 par. 1 of the Regulations, [the Player] is liable to pay compensation to [Ismaily]. Furthermore, in accordance with the unambiguous contents of article 17 par. 2 of the Regulations, the Chamber established that [the Player’s] new club, i.e. [Smouha], shall be jointly and severally liable for the payment of compensation. In this respect, the Chamber was eager to point out that the joint liability of [the Player’s] new club is independent from the question as to whether the new club has induced the contractual breach. This conclusion is in line with the well-established jurisprudence of the Chamber and has been repeatedly confirmed by the CAS. Notwithstanding the aforementioned, the Chamber recalled that according to art. 17 par. 4 sent. 2 of the Regulations, it shall be presumed, unless established to the contrary, that any club signing a professional who has terminated his contract without just cause has induced that professional to commit a breach. In any event, the Chamber determined that it would attend to the question of the possible inducement to breach of contract by [Smouha] at a later stage of its deliberations, i.e. after having discussed the issue of the compensation due to [Ismaily]”.

- As to the compensation for breach of contract to be paid, “the DRC established, on the one hand, that the total value of the [Player’s] employment agreement with [Ismaily] for the remaining contractual period amounted to USD 570,000. On the other hand, the members of the Chamber established that should [the Player] have stayed with [Smouha] until the end of the contract concluded with [Ismaily], i.e. for five years, he would have been entitled to receive an amount equivalent to USD 1,622,050.

- Subsequently, the members of the DRC noted that [Ismaily] is requesting the amount of USD 615,000 as compensation for breach of contract.

- Consequently, on account of the above-mentioned considerations, the Chamber decided that [the Player] must pay the amount of USD 615,000 to [Ismaily] as compensation for breach of contract, which is considered by the Chamber to be a reasonable and fair amount. Furthermore, [Smouha] is jointly and severally liable for the payment of the relevant compensation […].

- In addition and with regard to [Ismaily’s] request for interest, the Chamber decided that [Ismaily] is entitled to 5% interest p.a. on said amount as of 28 July 2015 until the date of effective payment”.

- As to whether sporting sanctions were to be imposed on any of the respondents, and with reference to Article 17(3) FIFA RSTP, “the Dispute Resolution Chamber recalled that the breach of contract by [the Player] had occurred during the applicable protected period. Consequently, the Chamber decided that, by virtue of art. 17 par. 3 of the Regulations, [the Player] had to be sanctioned with a restriction of four months on his eligibility to participate in official matches.

- In continuation, the Chamber focused on the issue of inducement by [Smouha] and held that, considering the small time frame between the signature of the Formal Offer by [the Player] and the signature of the contract between [the Player] and [Smouha] as well as the fact that the Formal Offer was never executed, it could not be reasonably expected from [Smouha] to have been aware that [the Player] had signed another contract, i.e. the Formal Offer, covering the same period. In view of the above, the Chamber decided that the issue of inducement as regard [Smouha] is not to be further considered.

- Furthermore, as to [Ismaily’s] claim with respect to [Asante Kotoko], the Chamber was eager to recall that, in accordance with art. 17 par. 2 of the Regulations, if a professional is required to pay compensation, it is the new club to be held jointly and severally liable for such payment. Moreover, the Chamber also recalled that, according to art. 17 par. 4 sent. 2 of the Regulations, it is the new club to be presumed, unless established to the contrary, to be held liable for the inducement to the breach of contract. On account of the above, the Chamber considered that [Asante Kotoko], being the [Player’s] former club, cannot be held liable for the breach of contract by [the Player] for lack of regulatory basis. Consequently, the DRC decided to reject [Ismaily’s] claim with respect to [Asante Kotoko]”.

III. PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT

20. On 31 January 2017, Smouha lodged a Statement of Appeal, pursuant to Article R48 of the CAS Code of Sports-related Arbitration (edition 2017) (the “CAS Code”). In this submission, Smouha nominated Prof. Petros Mavroidis, Professor of Law, Neuchatel, Switzerland, as arbitrator.

21. On 10 February 2017, Smouha filed its Appeal Brief, pursuant to Article R51 of the CAS Code. This document contained a statement of the fact and legal arguments giving rise to the appeal. Smouha challenged the Appealed Decision, submitting the following requests for relief:

“1. State that the FIFA Dispute Resolution Chamber has wrongly interpreted the legal situation currently existing in the case at stake as regards their particular situation.

2. As a consequence of the above, declare that the decision taken by the FIFA Dispute Resolution Chamber of FIFA on 13 October 2016 as regards Smouha SC (point 4 of the decision) is purely and simply cancelled and that Smouha SC are consequently relieved of any obligations whatsoever with respect to the case under review.

3. Order to FIFA to compensate Smouha SC for the legal costs incurred as a consequence of the wrong interpretation stated under point 1”.

22. On 7 March 2017, the Player filed its Answer, pursuant to Article R55 of the CAS Code. The Player did not submit any specific requests for relief, but the Panel infers from his submission that he requested Smouha’s appeal to be dismissed.

23. On 8 March 2017, the CAS Court Office informed the parties that another appeal had been filed against the Appealed Decision by the Player. The parties were therefore requested to indicate whether they would agree to consolidate the present procedure with CAS 2017/A/5019 Abdul Aziz Yusif v. Ismaily SC.

24. On 9 and 13 March 2017 respectively, Smouha and FIFA indicated to agree with the consolidation, whereas Ismaily objected.

25. On 14 March 2017, the CAS Court Office informed the parties that in light of Ismaily’s objection, and in accordance with Article R52 para. 4 of the CAS Code, the issue of the

consolidation would be submitted to the President of the CAS Appeals Arbitration Division, or her Deputy. The CAS Court Office also informed the parties that Asante Kotoko had failed to file an Answer within the prescribed time limit, but that, pursuant to Article R55 par. 2 of the CAS Code, the Panel could nevertheless proceed with the arbitration and deliver an award.

26. On 3 April 2017, FIFA filed its Answer, pursuant to Article R55 of the CAS Code. FIFA submitted the following request for relief:

“1. That the CAS rejects the present appeal and confirms the presently challenged decision passed by the Dispute Resolution Chamber (hereinafter: the DRC) on 13 October 2016 in its entirety.

2. That the CAS orders the Appellant to bear all the costs of the present procedure.

3. That the CAS orders the Appellant to cover all legal expenses of FIFA related to the proceedings at hand”.

27. On 4 May 2017, Ismaily filed its Answer, pursuant to Article R55 of the CAS Code. Ismaily submitted the following request for relief:

“a) Reject the Appeal filed by the Appellant Smouha SC.

b) In application or [sic] article 17.2 fully confirm the decision rendered on the 13th of October 2016 by the FIFA DRC.

c) Condemn the Appellant to the payment of the whole CAS administration costs and Panel fees.

d) Fix a sum to be paid by the Appellant to Ismaily in order to cover its defence fees and costs in the amount of CHF 25,000”.

28. On 8, 9 and 12 May 2017 respectively, upon being invited by the CAS Court Office to express their views in this respect, FIFA indicated that it did not consider it necessary to hold a hearing, whereas Smouha and Ismaily indicated that they wished a hearing to be held. The Player and Asante Kotoko did not submit their views in this respect.

29. On 4 July 2017, the CAS Court Office informed the parties that, given the similarities between the present case and the procedure CAS 2017/A/5019 Abdul Aziz Yusif v. Ismaily SC, the Division President decided to submit the present procedure to a Panel composed of three arbitrators. The procedure CAS 2017/A/5019 Abdul Aziz Yusif v. Ismaily SC would be referred to a sole arbitrator, who would also act as President in the present case.

30. On 25 July 2017, following the nomination by Ismaily and FIFA of Mr Mark Hovell, solicitor in Manchester, United Kingdom, as arbitrator, the CAS Court Office requested the Player and Asante Kotoko to confirm whether they agreed with the nomination and that their silence would be deemed as acceptance.

31. On 27 July 2017, the Player confirmed his agreement with the appointment of Mr Hovell as arbitrator. Asante Kotoko remained silent in this respect.

32. On 24 August 2017, pursuant to Article R54 of the CAS Code, and on behalf of the President of the CAS Appeals Arbitration Division, the parties were informed that the arbitral tribunal appointed to decide the present matter was constituted by:

• Mr Manfred Nan, Attorney-at-Law, Arnhem, the Netherlands, as President;

• Prof. Petros Mavroidis, Professor of Law, Neuchatel, Switzerland; and

• Mr Mark Andrew Hovell, Solicitor, Manchester, United Kingdom, as arbitrators

33. On 29 August 2017, the CAS Court Office informed the parties that the Panel had decided to hold a hearing.

34. On 8, 11 and 12 September and 23 October 2017 respectively, FIFA, Ismaily, Smouha and the Player returned duly signed copies of the Order of Procedure to the CAS Court Office. Asante Kotoko failed to return a duly signed copy of the Order of Procedure.

35. On 5 November 2017, counsel for the Player informed the CAS Court Office that he and the Player encountered great difficulty in securing a flight to Switzerland and requested the hearing to be postponed.

36. On 6 November 2017, the CAS Court Office informed the parties that it is their own responsibility to make the necessary arrangements to attend the hearing at the date and time scheduled and that the hearing could not be postponed. The Player and his counsel were nevertheless informed that they were authorised to attend the hearing by video-conference.

37. On 7 November 2017, a hearing was held in Lausanne, Switzerland. At the outset of the hearing, each party present confirmed that it had no objection to the constitution and composition of the Panel.

38. In addition to the Panel, Mrs Delphine Deschenaux-Rochat, Counsel to the CAS, and Mr Dennis Koolaard, Ad hoc Clerk, the following persons attended the hearing:

For Smouha:

• Mr Amr Khamis Ahmed Ismail, Administrative Director of Smouha;

• Mr Michel Zen Ruffinen, Counsel;

For Ismaily:

• Mr Juan de Dios Crespo Pérez, Counsel;

• Mr Enric Ripoll González, Counsel;

• Mr Nasr Eldin Azzam, Counsel;

For the Player:

- Mr Alhassan-Abu Jones Abdul-Fataahu, Counsel (by telephone);

For Asante Kotoko:

• Mr Richard Osei Akoto (by video conference);

• Mrs Rose Padmore Yeboah (by video conference);

For FIFA:

• Mr Matthijs Withagen, Counsel;

• Mr Ennio Bovolenta;

39. Although the Player and his counsel could not attend the hearing in person due to delays in their flight schedule, counsel for the Player did attend the hearing by telephone.

40. No witnesses or expert witnesses were heard. The parties were afforded full opportunity to present their case, submit their arguments and answer the questions posed by the Panel.

41. During the hearing reference was made to a decision of the Swiss Federal Tribunal that was only available in French. With the agreement of all parties present, FIFA was invited to provide a translation into English, following which the other parties would be permitted to comment on the accuracy of the translation.

42. Before the hearing was concluded, all parties present expressly stated that they did not have any objection with the procedure adopted by the Panel and that their right to be heard had been respected.

43. On 21 November 2017, FIFA provided the Panel with a translation into English of the decision with reference SFT 4A_32/2016 and dated 20 December 2016. Neither of the other parties made any comments on the accuracy of the translation.

44. On 26 June 2018, the CAS Court Office provided the parties with the arbitral award issued in the proceedings with the reference CAS 2017/A/5019 Abdul Aziz Yusif v. Ismaily FC, in which the sole arbitrator overturned the Appealed Decision and determined that the Player was not liable to pay compensation for breach of contract to Ismaily. The parties were invited to comment on the potential impact and/or consequences of such award for the present procedure.

45. On 2 July 2018, Ismaily provided its comments in respect of the CAS Court Office letter dated 26 June 2018. With reference to jurisprudence of the Swiss Federal Tribunal (the “SFT”), Ismaily submitted that a joint and several debtor not involved in the proceedings cannot invoke a judgment which has rejected the claim of the creditor against another joint and several debtor. This limitation of the legal effect on the parties involved corresponds to the substantive legal

situation that in the case of the solidarity debts there exist several single contractual obligations. If the judgment becomes final against one of the joint and several debtors, the SFT must treat it “as a separate judgment” in the assessment of the claim against the other debtor.

46. On 3 July 2018, FIFA provided its comments in respect of the CAS Court Office letter dated 26 June 2018. FIFA emphasised that the present matter solely pertains to the issue of the joint liability for the payment of compensation for breach of contract imposed on Smouha, which is specifically set out in Smouha’s Appeal Brief. FIFA indicated that, “from a strictly procedural and legal point of view, the award rendered in the matter CAS 2017/A/5019 Abdul Aziz Yusif v. Ismaily SC should not have any influence on the award which is yet to be rendered in the present proceedings”. At the same time, FIFA however indicated that, “[o]bviously, to try to defend that the joint liability for the payment of compensation for breach of contract imposed on [Smouha] by the DRC should be maintained where the player does not have to pay the same compensation, appears pointless and we come to the conclusion that point 4. of the relevant decision of the DRC has become obsolete through the conclusions of the Sole Arbitrator as described above”.

47. On 4 July 2018, the Player provided his comments in respect of the CAS Court Office letter dated 26 June 2018. The Player principally objected to the conclusion reached in CAS 2017/A/5019 Abdul Aziz Yusif v. Ismaily SC that the Player was not held to pay compensation to Ismaily, but that still sporting sanctions were imposed on him.

48. On 7 August 2018, Smouha provided its comments in respect of the CAS Court Office letter dated 26 June 2018. Smouha argued that “the point of the same decision against which [Smouha] had appealed in the case CAS 2017/A/4977, namely point 4, may obviously not be upheld since a party (Smouha SC, who, we repeat had furthermore clearly been found by FIFA as not being guilty of having induced the player to any incorrect behavior) may not held be jointly and severally liable for a payment of which the cause has ceased to exist by a Court decision and that is not due any more by the party who had been ordered to pay the amount in question”.

49. The Panel confirms that it carefully heard and took into account in its decision all of the submissions, evidence and arguments presented by the parties, even if they have not been specifically summarised or referred to in the present arbitral award.

IV. SUBMISSIONS OF THE PARTIES

50. Smouha’s submissions, in essence, may be summarised as follows:

- Smouha has at no time been informed by Asante Kotoko that Ismaily had also presented an offer for the Player and that the Player accepted to enter into negotiations with Ismaily. The Player neither informed Smouha on any occasion that he had been or was in negotiations with Ismaily. Only when Ismaily lodged a claim before FIFA, Smouha learned that Ismaily had apparently also made an offer concerning the Player to Asante Kotoko. Smouha was therefore simply not in a position to induce the Player to breach a contract of whatever formal commitment he would have signed previously with another club. This has also been duly accepted by the FIFA DRC in the Appealed Decision, as it

stated that “it could not be reasonably expected from [Smouha] to have been aware that [the Player] had signed another contract, i.e. the Formal Offer, covering the same period” and that “[i]n view of the above, the Chamber decided that the issue of inducement as regards [Smouha] is not to be further considered”.

- FIFA has hence clearly excluded any liability of Smouha with respect of having signed the Player, despite the existence of an alleged contractual commitment that the Player had apparently taken upon himself prior to signing a contract with Smouha. It is not relevant for Smouha to know whether the situation that has led to the Appealed Decision was the responsibility of Asante Kotoko or the Player. Relevant is exclusively the undisputed fact that Smouha had no liability whatsoever in all what happened.

- Rather, the role of Asante Kotoko, the Player and, to some extent, Ismaily should be considered by CAS when looking at the Appealed Decision. The consequences of the Appealed Decision for Smouha are totally incorrect. Smouha therefore requests CAS to review the liability of all the other parties involved in this case and to take appropriate action against those who have effectively violated existing contractual obligations or existing regulations.

- The FIFA DRC seems to sustain in the Appealed Decision that the implementation of Article 17(2) FIFA RSTP towards clubs who have signed a player who would allegedly have committed a breach of contract is in a way “automatic”, irrespective of knowing whether the club in question would have or not induced the player to act as he did. This interpretation of FIFA of the will of its internal legislator is certainly wrong and may certainly not be upheld in the case under review.

51. Ismaily’s submissions, in essence, may be summarised as follows:

- As to Smouha’s insistence on its lack of knowledge about other negotiations, Ismaily maintains that Asante Kotoko did inform Smouha about it, since in his answer dated 23 November 2015, and forwarded to the parties by FIFA on 25 January 2015, the Player stated the following:

“Player signed with [Smouha] because it was the club whom [Asante Kotoko] wished to complete a transfer. In transfers a player cannot ignore the preferences of his current club for a certain new club. [Smouha] was de facto the preferred club by [Asante Kotoko]. A take it or leave it situation for the player”.

- From this statement of the Player it is crystal clear that Asante Kotoko preferred Smouha over Ismaily as future destination for the Player. Being men of football, we all know that if that happened, it is because Asante Kotoko and Smouha had several conversations about it where “Asante Kotoko after request of Smouha ended up committing to convince the Player to breach his agreement with Ismaily”.

- The argument that Smouha was not aware of the situation should not have been considered. The whole position during the FIFA proceedings was based on the nonexistence of a valid employment contract between the Player and Ismaily, instead of demonstrating their lack of knowledge.

- Despite the fact that the Player terminated his employment contract with Ismaily without just cause and the clear content of Article 17(2) FIFA RSTP, Smouha still argues that this provision shall not be applied in the present case. Ismaily maintains that this position is contrary to the longstanding jurisprudence of FIFA and CAS.

- The opinion of the FIFA DRC in respect of the inducement of Smouha is not shared by Ismaily, but in any case, it helped Smouha to not receive sporting sanctions as were imposed on the Player, i.e. a four month suspension. The content of Article 17(2) FIFA RSTP is perfectly clear and Smouha has to be condemned jointly and severally with the Player to pay the established compensation.

52. The Player’s submissions, in essence, may be summarised as follows:

- The Player lodged an independent appeal against the Appealed Decision, calling only Ismaily as a respondent.

- Smouha did not mention the Player’s name among the relief sought from CAS in its Appeal Brief, despite having asked that he and/or Ismaily and/or Asante Kotoko bear the costs of the appeal procedure and also compensate it for the costs in connection with the appeal proceedings. It is against the request of Smouha that CAS orders the Player to pay part of the costs of Smouha’s appeal procedure as well as compensate it.

- Smouha’s appeal has no merit and should be dismissed because i) the Player had no hand in the Appealed Decision and should therefore be absolved of any liability for the payment of any costs and compensation to Smouha; ii) by its own admission, “the basics [sic] decision taken by the FIFA Dispute Resolution Chamber the player Abdul Aziz was wrong “Given [sic] this declaration by the appellants themselves on what basis would the player be held culpable for paying any compensation and costs associated with the appeal procedure of the appellants””; iii) it is trite law that a transfer of a player involves three parties, namely the player, his current club and the prospective new club, all of whom must concur before the transfer can validly take place.

- With reference to Article 17(4) FIFA RSTP, the Player argues that a player can only agree terms with a prospective club if that club has agreed a transfer deal with his current club. Therefore, by making the payment of the transfer fee of USD 100,000 contingent upon the passing of a medical examination by the Player, Ismaily was not acting in good faith. Besides, Ismaily still had not paid Asante Kotoko the agreed transfer fee two weeks after agreeing the transfer deal, compelling a cash-strapped Asante Kotoko to look elsewhere for a willing buyer of the Player. The Player was therefore bound to ignore Ismaily’s offer

and engage with Smouha at the behest of Asante Kotoko since Ismaily had not demonstrated sufficient seriousness to complete the deal.

53. Asante Kotoko did not file any written submissions, but it put forward, inter alia, the following arguments during the hearing:

- Asante Kotoko disassociates it from the present matter as it did not break any contract.

- Smouha was held jointly liable on the basis of the FIFA RSTP and their responsibility was conditional. Asante Kotoko is not guilty in this matter and should be set free.

54. FIFA’s submissions, in essence, may be summarised as follows:

- It is important to note that Smouha is not disputing the Player’s breach of contract, nor the validity of the employment contract signed with Ismaily in the context of the present procedure. Smouha merely challenges the fact that it was held jointly and severally liable for the payment of the compensation for breach of contract awarded to Ismaily, despite the clear wording of Article 17(2) FIFA RSTP.

- The idea of the principle established in Article 17(2) FIFA RSTP is to make sure that, on the one hand, the club victim of the player’s unjustified breach of contract obtains an additional guarantee that it will be paid the relevant compensation as per Article 17(1) FIFA RSTP. On the other hand, it also takes into account the financial but also sportive burden that the decision to award compensation to the club victim of the breach of contract without just cause by the player might place on the latter and which could, potentially, hinder him in his football career. It is, generally speaking, assumed that a club has more financial means than a football player and would therefore be less affected by the decision to be ordered to pay, jointly and severally with the player, compensation for breach of contract than a player. The intention behind Article 17(2) FIFA RSTP is not a punitive one. It is merely a mechanism aimed at ensuring, to the furthest extent possible, that the club victim of the breach of contract without just cause can have recourse against either the player or his new club.

- That being said, should the club victim of the breach choose to claim the relevant compensation from the player’s new club, nothing prevents the new club from demanding a contribution from the player at a later stage. This in accordance with the legal mechanism of joint and several liability, which is a universal principle of law and governed, notably, by Article 51 in combination with Article 143 of the Swiss Code of Obligations (the “SCO”). The right of the new club to seek redress against the player has also been recognised by CAS.

- With regard to this point it is underlined that the SFT has ruled that the joint and several liability principle enshrined in Article 17(2) FIFA RSTP is not per se incompatible with Swiss public order as it does not violate any fundamental right. It also established that the said principle is not excessive. Indeed, the SFT underlined that the new club may, once

established that it must pay the relevant compensation, have recourse against the other debtor who was jointly and severally liable, i.e. the player. Finally, according to the SFT in such case, the new club had not demonstrated that the payment of the compensation for breach of contract would gravely endanger its economic existence.

- Although Smouha dedicates several paragraphs to the fact that it did not have any involvement whatsoever in the events surrounding the Player’s breach of contract, the lack of involvement of Smouha is not contested by anyone; this is a clear established fact, which is not being presently challenged. The fact that Smouha has not anyhow induced the Player to breach his contract with Ismaily is irrelevant in the assessment of the applicability of Article 17(2) FIFA RSTP. With reference to CAS jurisprudence, it is maintained that the joint and several liability of the payment of compensation for breach of contract in case of breach of contract by a player without just cause is independent of a possible inducement for breach of contract by the new club. The joint and several liability principle is, indeed, de facto automatic.

- For the sake of completeness, the only situation in which a player would be condemned to pay compensation for breach of contract without just cause on his own would be one where, in practical terms, the joint and several liability principle cannot be applied since the player did not sign any new contract after the said breach and until the decision of the FIFA DRC was passed.