Vegalta Sendai v. CSKA Moscow, Fédération Internationale de Football Association (FIFA)

V. To grant to the Appellant a contribution towards its legal expenses, incurred in connection with these

arbitral proceedings, not less than 5.000 CHF”.

49. The Appellant’s submissions, in essence, may be summarised as follows:

- By decisions of the FIFA Disciplinary Committee, both Sendai and CSKA were sanctioned, inter alia, for a violation of Article 18bis (1) of the FIFA RSTP, considering that Clause 6 of the Loan Agreement violated the rules concerning third party influence.

- As such, Clause 6 of the Loan Agreement is null and void as it is unlawful and cannot be enforced.

- In an ordered legal system, it is inconsistent if, on the one hand, one of its norms establishes that a behaviour is prohibited and sanctions it while, on the other hand, the same system, based on another norm or legal principle, recognises the same behaviour as valid and effective. This should not be the case.

- In the present case, the FIFA RSTP does not establish the legal consequences of a contravention of Article 18bis (1) of the same regulations, and this gap therefore needs to be filled with the application of Swiss law in order to be able to avoid the inconsistencies that the exclusive application of the FIFA RSTP without any complementary principles can cause.

- Pursuant to Article 19 of the SCO “1. The terms of a contract may be freely determined within the limits of the law. 2. Clauses that deviate from those prescribed by law are admissible only where the law does not prescribe mandatory forms of wording or where deviation from the legally prescribed terms would contravene public policy, morality or rights of personal privacy”.

- However, such contractual freedom is not without limits since Article 20 refers to the nullity of contracts or their clauses, stating that “1. A contract is void if its terms are impossible, unlawful or immoral. 2. However, where the defect pertains only to certain terms of a contract, those terms alone are void unless there is cause to assume that the contract would not have been concluded without them”.

- As Article 18bis (1) of the FIFA RSTP is a mandatory and prohibitive rule, any agreement concluded by the two clubs in contravention there should be considered null and void in application of Article 19 (2) of the SCO.

- This interpretation is the only possible way to provide the applicable law with a systematic and coherent interpretation and to avoid the appearance of severe antinomies.

- Furthermore, and in line with the principle of Ad imposibilia nemo tenetur, a contractual obligation is null and void due to the so-called objective impossibility, if the performance of such obligation is already impossible at the time of the conclusion of the contract or, in time, becomes objectively impossible to perform by the party committed to do so.

- This legal principle is embodied in Article 119 of the SCO.

- In order for the conditions of Article 119 of the SCO to be met, the impossibility of fulfilling the contractual obligations must occur after the date of the conclusion of the contract and must be unrelated to any liability of the debtor.

- In the present case, Sendai was faced with a supervening impossibility, not attributable to it, which prevented it from fielding the Player in at least 50% of the J-League matches in the 2020 season for 45 minutes or more in each of them, which means that Article 119 of the SCO is applicable, leaving Sendai exonerated from the payment of the amount claimed by CSKA based on Clause 6 of the Loan Agreement.

- Since his registration with Sendai, the Player was one of the most relevant players of the team.

- Out of the total of 20 matches in which the Player was fit to play without injury and without having to serve any disciplinary sanctions, the Player played in all 20 matches and in at least 13 of them more than 45 minutes, which is equivalent to 65% of the total number of matches in which the Player was fit to play.

- The Player missed some of the J-League matches in the 2020 season only for injury reasons and based on the medical decision of, inter alia, the team doctor.

- Therefore, and in any case, it must be the number of matches in which the Player had the possibility to participate that should form the basis for the calculation of the percentage of participation in accordance with Clause 6 of the Loan Agreement.

- With regard to the content of Clause 6 of the Loan Agreement, the FIFA PSC was wrong in deciding on the intention of the two clubs based on what was expressly agreed upon in the said contract without taking into consideration other fundamental elements.

- As such, and in accordance with the principle of pacta sunt servanda, in the present case, by reference to Swiss law and Article 119 of the SCO, the appeal must be upheld on the grounds that the performance has become impossible and therefore the obligation contained in Clause 6 of the Loan Agreement was extinguished ex lege by becoming impossible.

- In any case, and if Article 119 of the SCO is not found applicable to this dispute, the rules of contract interpretation must be applied, no matter whether the wording of the provision is clear or not.

B. The Respondents

50. In its Answer, the First Respondent requested the CAS to rule as follows:

i. “The appeal submitted by [Sendai] against [CSKA] and FIFA is dismissed in full.

ii. [The Appealed Decision] is upheld.

iii. The costs of the arbitration are borne by [Sendai] in their entirety.

iv. [Sendai] is ordered to reimburse [CSKA] its legal costs in the amount of CHF 10 000 (Ten thousand Swiss Francs)”.

51. The First Respondent’s submissions, in essence, may be summarised as follows:

- It is correct that the FIFA Disciplinary Committee found CSKA, together with Sendai, to be in breach of Article 18bis of the FIFA RSTP in relation to Clause 6 of the Loan Agreement.

- Clause 6 is to be understood as a condition precedent in the sense of Article 151 of the SCO.

- In this regard, it must be stressed that the principle of contractual freedom is a fundamental legal principle of Swiss law on which the decisions of the FIFA decisionmaking bodies are based.

- In order to decide whether Clause 6 of the Loan Agreement is valid and enforceable, it must be analysed whether such a clause is lawful and does not entail an excessive commitment for Sendai.

- CAS jurisprudence (CAS 2018/A/6027) has already decided that “Article 18bis is not concerned with the issue of the validity and/or the binding nature of the contractual provisions enabling a party to an agreement to exercise undue influence on its counter party-football club. […] It is perfectly possible that said contractual agreed provisions are enforceable under a set of applicable (civil law) rules and at the same time fall foul of Article 18bis of the FIFA Regulations (which at any case does not and cannot determine whether they are illegal, invalid or unenforceable.) […]”.

- Moreover, and also in line with CAS jurisprudence (CAS 2020/A/7158), an infringement of Article 18bis of the FIFA RSTP presupposes, inter alia, a limitation of a club’s independence and that such limitation undermines the integrity of the relevant competition in the sense of Article 2(g) of the FIFA Statutes.

- Clause 6 of the Loan Agreement did not affect or limit Sendai’s independence to the extent that the integrity of a competition could be at risk.

- As such, and even if Clause 6 of the Loan Agreement was considered to be in breach of Article 18bis of the FIFA RSTP, this does not mean that it is to be considered as “unlawful”.

- Moreover, the same clause has been consistently held valid by FIFA’s decision-making bodies.

- Moreover, and in line with the Swiss Federal Tribunal, Clause 6 of the Loan Agreement does not entail an excessive commitment from Sendai as the said club was not subject to CSKA’s arbitrariness, did not give up its financial freedom and did not curtail it to such an extent that the foundation of its financial existence was jeopardised. No evidence to the contrary has been provided by Sendai.

- As such, Clause 6 of the Loan Agreement is enforceable, valid and binding upon the Parties.

- The performance of the said clause does not depend upon the Player’s injury, and whether or not the Player was injured during his stay with Sendai in the 2020 season is irrelevant with regard to Sendai’s payment obligation pursuant to Clause 6 of the Loan Agreement.

- The wording of the clause, which was agreed by the two clubs under the principle of contractual freedom, is clear and specific and does not state that any matches should be excluded from the calculation of the 50% participation. Sendai never suggested any other meaning before signing the Loan Agreement.

- The wording of Clause 6 of the Loan Agreement leaves no room for any other interpretation.

- In any case, Sendai’s assumption that the Player, had he not been injured, would have player at least 50% of the matches in question, is purely hypothetical.

52. In its Answer, the Second Respondent requested the CAS to issue an award on the merits:

(a) “Rejecting the reliefs sought by [Sendai];

(b) Confirming the Appealed Decision; and

(c) Ordering [Sendai] to bear the full costs of these arbitration proceedings”.

53. The Second Respondent’s submissions, in essence, may be summarised as follows:

- Sendai mainly disputes having to pay any amount pursuant to Clause 6 of the Loan Agreement for several reason, mainly its alleged nullity and the alleged non-fulfilment of the condition set out in the said clause.

- As these issues pertain to the strictly horizontal dispute between Sendai and CSKA, FIFA leaves it to the Sole Arbitrator to determine whether or not such an amount is due by Sendai.

- In any case, should the amount in question in fact be due, Sendai does not dispute having failed to pay such an amount to CSKA or that Article 12bis of the FIFA RSTP is applicable based on such failure.

- As CSKA fully complied with the formalities foreseen in Article 12bis of the said regulations, the FIFA PSC was entitled to impose a warning on the Appellant.

- Sendai does not specifically contest the disciplinary sanction in its appeal to the CAS, but only generically requests the annulment of the Appealed Decision.

- For Article 12bis of the FIFA RSTP to be applied, a club must a) have delayed a due payment for more than 30 days without a prima facie contractual basis, and b) the creditor must have put the debtor in default in writing and have granted a deadline of at least ten days for the debtor to comply with its financial obligations.

- Both conditions have been met in the present case as the conditional transfer compensation became due on 31 January 2021 and has not yet been paid to CSKA, and because CSKA, on 19 March 2021, put Sendai in default, granting the latter a ten-day deadline to comply with the payment of the said conditional transfer compensation.

- Based on the above, the FIFA PSC correctly imposed a proportionate sanction on Sendai in accordance with Article 12bis (4) of the FIFA RSTP, which is in fact the less severe of the possible sanctions set out in the said article, and noting that Sendai was not a repeat offender.

V. JURISDICTION

54. Article R47 of the CAS Code provides, inter alia, as follows:

“An appeal against the decision of a federation, association or sports-related body may be filed with CAS if the statutes or regulations of the said body so provide or if the parties have concluded a specific arbitration agreement and if the Appellant has exhausted the legal remedies available to it prior to the appeal, in accordance with the statutes or regulations of that body”.

55. With respect to the Appealed Decision, the jurisdiction of the CAS derives from Article 58 (1) of the FIFA Statutes. In addition, neither the Appellant nor the Respondents objected to the jurisdiction of the CAS, and all Parties confirmed the CAS jurisdiction when signing the Order of Procedure.

56. It follows that the CAS has jurisdiction to decide on the appeal of the Appealed Decision.

VI. ADMISSIBILITY

57. Article R49 of the CAS Code provides, inter alia, as follows:

“In the absence of a time limit set in the statutes or regulations of the federation, association or sports-related body concerned, or in a previous agreement, the time limit for appeal shall be twenty-one days from the receipt of the decision appealed against.[…]”.

58. It follows from Article 58 of the FIFA Statutes (2020 edition), inter alia, that:

“Appeals against final decisions passed by FIFA’s legal bodies and against decisions passed by confederations, members or leagues shall be lodged with CAS within 21 days of receipt of the decision in question”.

59. The grounds of the Appealed Decision were notified to the Appellant on 6 September 2021, and the Appellant’s Statement of Appeal was lodged on 25 September 2021, i.e. within the statutory time limit of 21 days set forth in Article R49 of the CAS Code and in Article 58 of the FIFA Statutes, which is not disputed.

60. Furthermore, the Statement of Appeal and the Appeal Brief complied with all the requirements of Articles R48 and R51 of the CAS Code.

61. It follows that the appeal is admissible.

VII. APPLICABLE LAW

62. Article R58 of the CAS Code provides as follows:

“The Panel shall decide the dispute according to the applicable regulations and the rules of law chosen by the parties or, in the absence of such a choice, according to the law of the country in which the federation, association or sports-related body which has issued the challenged decision is domiciled or according to the rules of law, the application of which the Panel deems appropriate. In the latter case, the Panel shall give reasons for its decision”.

63. Article 57 (2) of the FIFA Statutes determines the following:

“The provisions of the CAS Code of Sports-related Arbitration shall apply to the proceedings. CAS shall primarily apply the various regulations of FIFA and, additionally, Swiss Law”.

64. The Sole Arbitrator further notes that Clause 15 of the Loan Agreement states as follows:

“This Agreement is subject to and governed by and in accordance with the FIFA Regulations. Any and all disputes will be handled by the competent FIFA body. In the event that FIFA shall not be competent to hear any particular dispute arising out of or in connection with this Agreement, such dispute shall be finally settled in accordance with the Rules of the Code of Sports-related Arbitration of the Court of Arbitration for Sport (CAS), located in Lausanne, Switzerland, the language of the proceedings shall be English, and the decision of the CAS shall be fin and binding on the parties hereto”.

65. Based on the above, and with reference to the filed submissions, the Sole Arbitrator is satisfied that the various regulations of FIFA are primarily applicable and that Swiss law is subsidiarily applicable should the need arise to fill a possible gap in the various regulations of FIFA.

VIII. MERITS

66. Initially, the Sole Arbitrator notes that the factual circumstances pertaining to this dispute are undisputed by the Parties.

67. In rendering this award, the Sole Arbitrator has therefore taken into account the following non-exhaustive list of factors and considerations:

- On 19 March 2020, Sendai and CSKA, among others, entered into the Loan Agreement regarding the loan of the Player, which agreement stated, inter alia, as follows in Clause 6:

“In case the PLAYER during the Loan Periods participates in less than 50% (Fifty percent) matches for SENDAI In the J-League sporting season 2020, provided that only the matches in which the PLAYER played 45 (Forty-five) or more minutes shall be taken into account, SENDAI shall pay CSKA a conditional transfer compensation in the amount of 100,000 (One hundred thousand) Euros NET, i.e. exclusive of any solidarity contributions, training compensations, taxes, levies or bank commissions, etc., no later than 31 January 2021”.

- The Player ended up participating in less than 50% of Sendai’s matches in the J1 League in the sporting season 2020, however, according to Sendai, the Player was not fit to participate in 11 matches of the said season due to an injury.

- On 23 July 2020, the FIFA DC rendered the FIFA DC Decisions and found Sendai and CSKA in breach of Article 18bis (1) of the FIFA RSTP since the said clause was found to prevent “Sendai from freely making a decision as to which players to select in a match with the aim of achieving the best result possible, given that Sendai is instigated to select a certain player because of the possible negative financial impact that not doing would involve”.

- Both clubs were fined by the FIFA DC and were warned about their future conduct in the same regard.

- Following CSKA’s claim against Sendai for the payment of EUR 100,000 pursuant to Clause 6 of the Loan Agreement, the FIFA PSC rendered the Appealed Decision, which read, inter alia, as follows:

“1. The claim of [CSKA] is accepted.

2. [Sendai] has to pay to [CSKA], the following amount:

- EUR 100,000 as outstanding payment plus 5% interest p.a. as from 1 February 2021 until the date of effective payment.

3. A warning is imposed on [Sendai]. […]”.

68. While it is not disputed that Sendai and CSKA freely decided to enter into the Loan Agreement, the two clubs now disagree on whether Clause 6 of the same agreement is to be considered null and void and unlawful as a result of the FIFA DC Decision, and consequently, not enforceable.

69. Furthermore, and in case the said clause is not considered null and void and unlawful, the two clubs are in disagreement with regard to the alleged payment obligation of Sendai since the latter submits that, inter alia, the conditional transfer compensation set out in Clause 6 of the Loan Agreement never fell due as a result of the Player’s injury.

70. Thus, the main issues to be resolved by the Sole Arbitrator are:

a) Is Clause 6 of the Loan Agreement enforceable regardless of the FIFA DC Decisions?

and in the affirmative;

b) Did conditional transfer compensation pursuant to Clause 6 of the Loan Agreement fall due?

A. Is Clause 6 of the Loan Agreement enforceable regardless of the FIFA DC Decisions?

71. To reach a decision on this issue, the Sole Arbitrator has conducted an in-depth analysis of the facts of the case and the information and evidence gathered during the proceedings, including the information and evidence gathered during the proceedings before the FIFA DC and the FIFA PSC.

72. Initially, the Sole Arbitrator notes that the FIFA DC Decisions are not under appeal and thus not a part of these proceedings, and the Sole Arbitrator is therefore not in a position to consider whether Sendai and CSKA did in fact infringe Article 18bis (1) of the FIFA RSTP when entering into Clause 6 of the Loan Agreement. This has already been established by the FIFA DC.

73. As mentioned by the Panel in CAS 2020/A/7417, it seems clear “that the main purpose of article 18bis of the [FIFA RSTP] is to preserve the integrity of the competition as a whole by aiming at strengthening the autonomy of clubs in diverse aspects, including in relation to the transfer of players”.

74. However, and with regard to the question of contractual freedom, the Sole Arbitrator notes that Article 19 and Article 20 of the SCO have the following wording:

“Article 19: 1. The terms of a contract may be freely determined within the limits of the law. 2. Clauses that deviate from those prescribed by law are admissible only where the law does not prescribe mandatory forms of wording or where deviation from the legally prescribed terms would contravene public policy, morality or rights of personal privacy.

Article 20: 1. A contract is void if its terms are impossible, unlawful or immoral. 2. However, where the defect pertains only to certain terms of a contract, those terms alone are void unless there is cause to assume that the contract would not have been concluded without them”.

75. The CAS has confirmed the application of this principle of contractual freedom to football contracts, including excessive self-commitment, as being contrary to this principle (CAS

76. As such, and in general, when negotiating, e.g. a transfer agreement governed by Swiss law, the two clubs are allowed to freely set the essential conditions, the nature and the non-essential elements of the contract they wish to enter into, without being subject to any limitations or conditions, except against entering into an unlawful contract (i.e. one that is against the law, moral standards or customary practice).

77. However, it also follows, inter alia, from Article 60 (2) of the Swiss Civil Code (the “SCC”) that a private association legally established under Swiss law, like FIFA, has the power to selfgovern and to lay down its own rules in articles, which must be done in writing and indicate the objects of the association, its resources and its organisation.

78. As such, FIFA is entitled to lay down its own rules and regulations, but these are subject to and must observe Swiss law, and any prohibitions like those set out in Article 18bis of the FIFA RSTP must be understood and interpreted as an exception to the principle of contractual freedom.

79. In this regard, the Sole Arbitrator notes first of all that the FIFA RSTP does not deal with the possible consequences, inter partes, between contractual parties in case a contractual provision is considered to be in breach of Article 18bis of the same regulations.

80. Moreover, the Sole Arbitrator notes that the Appealed Decision apparently did not take the FIFA DC Decisions into consideration when deciding on CSKA’s claim against Sendai.

81. Furthermore, the Sole Arbitrator notes that the Panel in CAS 2018/A/6027 found that “Article 18bis is not concerned with the issue of the validity and/or the binding nature of the contractual provisions enabling a party to an agreement to exercise undue influence on its counter party-football club. This is a matter to be settled under the applicable law, which is the task of the FIFA Players’s Status Committee when called to examine the validity and the binding nature of the same contractual provisions in the context of a contractual dispute that is brought before the FIFA PSC. It is perfectly possible that said contractual agreed provisions are enforceable under a set of applicable (civil law) rules and at the same time fall foul of Article 18bis of the FIFA Regulations (which at any case does not and cannot determine whether they are illegal, invalid or unenforceable”.

82. The Sole Arbitrator concurs with the Panel in CAS 2018/A/6027 and is thus satisfied that Clause 6 of the Loan Agreement is not to be considered per se “unlawful”, based alone on the FIFA DC Decisions.

83. Moreover, the Sole Arbitrator concurs with CSKA that the said clause does not entail an “excessive commitment” for Sendai, which could have made the clause unenforceable.

84. The Sole Arbitrator notes in this regard, and with reference to 4A_558/2011 of 27 March 2012 from the Swiss Federal Tribunal, that Clause 6 of the Loan Agreement did not make Sendai subject to CSKA’s arbitrariness and that Sendai did not give up its financial freedom or curtailed it to such an extent that the foundations of its financial existence were jeopardised.

85. Based in the above, the Sole Arbitrator finds no legal grounds for setting aside Clause 6 of the Loan Agreement as null and void and unlawful or for any other reasons.

B. Did the conditional transfer compensation pursuant to Clause 6 of the Loan

Agreement fall due?

86. The Sole Arbitrator notes that since Clause 6 of the Loan Agreement is considered to be valid and in force, he now has to address whether the conditional transfer compensation set out in this provision fell due by the end of the 2020 sporting season of the J1 League.

87. While the two clubs do not dispute that the Player did in fact participate “in less than 50% matches for Sendai in the J-League sporting season 2020”, Sendai, on the one side, submits that its payment obligation is null and void in accordance with the legal principle of ad impossibila nemo tenetur as its performance of the contractual obligation, i.e. the fielding of the Player, became in time objectively impossible due to the Player’s injury, over which Sendai had no control. This principle is further embodied in Article 119 of SCO. In the alternative, Sendai submits that it should be the number of matches in which the Player had the possibility to participate that should form the basis for the calculation of the percentage of participation in accordance with Clause 6 of the Loan Agreement, which would bring the participation percentage well above 50%.

88. CSKA, on the other side, submits that whether or not the Player was injured during his stay with Sendai in the 2020 sporting season is irrelevant with regard to the calculation of the percentage of matches in which he did in fact participate and, by extension, irrelevant with regard to the payment obligation of the conditional transfer compensation, which fell due when the Player did not participate in at least 50% of the matches in the J1 League in the said sporting season. The wording of the clause is clear and specific, and it was never suggested by Sendai before the signing of the Loan Agreement that any matches could possibly be excluded when calculating the percentage of the matches in which the Player would eventually have participated.

89. With regard to the possible application of the legal principle of ad impossibila nemo tenetur and Article 119 (1) of the SCO, which reads “An obligation is deemed extinguished where its performance is made impossible by circumstances not attributable to the obligor”, the Sole Arbitrator first of all is not convinced that Clause 6 of the Loan Agreement does in fact set out a contractual obligation for Sendai to field the Player in a certain number of matches during the 2020 sporting season, for which reason the question of whether such an alleged obligation was eventually “made impossible by circumstances not attributable to the obligor” is of no relevance to this dispute.

90. Pursuant to the Loan Agreement, which was signed in March 2020, the Player was loaned for free from CSKA to Sendai for the 2020 sporting season without the two clubs agreeing anything about the contractual future of the Player for the following season(s). As such, the Sole Arbitrator understands that the said clause was agreed on as a sort of incentive for Sendai to field the Player in order to “safeguard” or even “contribute” to the actual and future value of the Player as it is considered important for a player to play regularly.

91. In case the Player, for any reason and as it happened, was eventually fielded “in less than 50% matches for Sendai in the J-League sporting season 2020”, the conditional transfer compensation would fall due, in which situation Sendai would in fact be obligated to pay the agreed amount of EUR 100,000 as a sort of loan fee.

92. Further on, and with regard to the alleged objective impossibility for Sendai to field the Player in a sufficient number of matches due to the Player’s injuries, the Sole Arbitrator notes that pursuant to the information submitted by Sendai, there seem to be at least five matches in the period from July 2020 until September 2020 in which the Player was fielded but did not play at least 45 minutes of each match, even if the Player was not injured at that time.

93. As such, the Sole Arbitrator is not convinced that the alleged objective impossibility was not, at least in part, attributable to Sendai at all.

94. Based on the above, the Sole Arbitrator does not agree with Sendai that the club’s payment obligation pursuant to Clause 6 of the Loan Agreement is to be considered null and void due to Sendai’s alleged objective impossibility to fulfil its alleged obligation.

95. With regard to the actual meaning of the said clause, the Sole Arbitrator agrees with the two clubs that Clause 6 of the Loan Agreement must be interpreted in accordance with the principles of Swiss law in order to decide this matter.

96. In this connection, the Sole Arbitrator notes that Article 18 of the SCO stipulates as follows:

“When assessing the form and terms of a contract, the true and common intention of the parties must be ascertained without dwelling on any inexact expressions or designations they may have used either in error or by way of disguising the true nature of the agreement”.

97. The Sole Arbitrator furthermore observes that this is in line with the consistent CAS jurisprudence on how to interpret contractual clauses, which he fully endorses:

“According to the interpretation given to this article by CAS jurisprudence, “(u)nder this provision, the parties’ common intention must prevail on the wording of their contract. If this common intention cannot be determined with certainty based on the wording, the judge must examine and interpret the formal agreement between the parties in order to define their subjective common intention (Winiger, Commentaire Romand – CO I, Basel 2003, n. 18-20 ad Art. 18 CO). This interpretation will first take into account the ordinary sense one can give to the expressions used by the parties and how they could reasonably understand them (Winiger, op. cit., n. 26 ad art. 18 CO; Wiegand, Obligationenrecht I, Basel 2003, n. 19 ad art. 18 CO). The behaviour of the parties, their respective interest in the contract and its goal can also be taken into account as complementary

means of interpretation (Winiger, op. cit., n. 33, 37 and 134 ad art. 18 CO; Wiegand, op. cit., n. 29 and

By seeking the ordinary sense given to the expressions used by the parties, the real intention of the parties must – according to the jurisprudence of the Swiss Federal Court – be interpreted based on the principle of confidence. This principle implies that a party’s declaration must be given the sense its counterparty can give to it in good faith (’Treu und Glauben’: WIEGAND W., op. cit., n. 35 ad art. 18 CO), based on its wording, the context and the concrete circumstances in which it was expressed (ATF 124 III 165, 168, consid. 3a; 119 II 449, 451, consid. 3a). Unclear declarations or wordings in a contract will be interpreted against the party that drafted the contract (ATF 124III 155, 158, consid. 1b): It is of the responsibility of the author of the contract to choose its formulation with adequate precision (In dubio contra stipulatorem – WINIGER B., op. cit., n. 50 ad 18 CO). Moreover, the interpretation must – as far as possible – stick to the legal solutions under Swiss law (ATF 126 III 388, 391, consid. 9d), under which the accrued protection of the weakest party” (CAS 2005/A/871, pg. 19, para. 4.30)” (CAS 2008/A/1518, paras 46-47 of the abstract published on the CAS website).

98. Based on the above and on the wording of the said clause, which reads “matches for Sendai in the J-League sporting season 2020”, the Sole Arbitrator, on the basis of a good faith interpretation, finds no basis for concluding that it was the mutual intentions of the two clubs, when signing the Loan Agreement, that only matches in which the Player had a possibility to be fielded should be included when assessing the percentage of matches in which the Player ended up being fielded for at least 45 minutes.

99. The Sole Arbitrator notes in this regard that he finds that “matches for Sendai in the J-League sporting season 2020”, as stated in the said clause, most naturally must be understood as referring to all matches in the J1 League during the season in question.

100. Moreover, the Sole Arbitrator notes that the risk of a player suffering from injuries during a season is something both clubs must have been aware of when signing the Loan Agreement, and it was therefore up to Sendai to make sure that the alleged exemption was set out clearly in the Loan Agreement if so intended.

101. Even if Sendai did not have any influence on the Player being injured during the 2020 season, the Sole Arbitrator finds that Sendai is the closest party to bear the risk for not being able to field the Player in several matches, not least taking into account that CSKA did not have any influence at all on the Player during his stay with Sendai.

102. Based on that, the Sole Arbitrator agrees with CSKA that whether the Player was injured during the 2020 sporting season is irrelevant with regard to Sendai’s conditional payment obligation pursuant to Clause 6 of the Loan Agreement.

103. As such, and as it is undisputed that the Player did not participate in at least 50% of Sendai’s matches in the J1 League during the 2020 season, the Sole Arbitrator concurs with the FIFA PSC that Sendai, in accordance with the principle of pacta sunt servanda, is liable to pay to CSKA the contractually agreed conditional transfer compensation in the amount of EUR 100,000.

104. Furthermore, the Sole Arbitrator sees no reason to deviate from the Appealed Decision concerning the interest rate and, therefore, confirms that CSKA is entitled to receive interest on the said amount at the rate of 5% p.a. from 1 February 2021 until the date of effective payment.

105. With regard to the warning imposed on Sendai in the Appealed decision, and thus also with regard to the application of Article 12bis of the FIFA RSTP, the Sole Arbitrator notes that Sendai in fact does not dispute its failure to pay to CSKA the conditional transfer compensation, which fell due on 31 January 2021 pursuant to Clause 6 of the Loan Agreement.

106. Moreover, Sendai does not dispute that it was in fact put in default by CSKA with regard to the outstanding amount and was granted a deadline of at least ten days to comply with its payment obligation.

107. As such, the Sole Arbitrator agrees with FIFA that the conditions for applying Article 12bis of the FIFA RSTP have been met, and the Sole Arbitrator therefore finds no legal grounds for setting aside the warning imposed on Sendai, noting at the same time that such a warning is in fact the less severe of the possible sanctions set out in the said article.

108. Finally, and for the sake of good order, the Sole Arbitrator notes that Sendai did not raise any specific arguments against the ban from registering any new players which will be imposed in case the club fails to pay the amounts due within the prescribed deadline. As such, the Sole Arbitrator finds no reason not to confirm this part of the Appealed Decision, as well.