Ruben Tiago Rodrigues Ribeiro, Sporting Clube de Portugal SAD v. Al Ain FC/SC, Fédération Internationale de Football Association (FIFA), Ruben Tiago Rodrigues Ribeiro, Sporting Clube de Portugal SAD

III. FACTUAL BACKGROUND — A. Background facts

9. The below is a summary of the main relevant facts, as established on the basis of the Parties’ written submissions on the file and relevant documentation produced in these two consolidated appeal proceedings. Additional facts and allegations found in the Parties’ submissions may be set out, where relevant, in connection with the further legal discussion that follows. While the Panel has considered all the facts, allegations, legal arguments and

Sporting Clube De Portugal v. Rúben Tiago Rodrigues Ribeiro & Al Ain FC & FIFA, award of 14 February 2022

evidence submitted by the Parties in the present proceedings, this Award refers only to the submissions and evidence considered necessary to explain its reasoning.

10. On 27 December 2017, Sporting and the Player signed an employment contract (the “Contract”) valid as from 11 January 2018 until 30 June 2020.

11. According to Article 3 of the Contract, the Player was entitled to the following remuneration:

a) for season 2017/18: EUR 504,000.00, to be paid in six equal instalments of EUR 84,000.00, as from 11 February 2018;

b) for season 2018/19: EUR 1,008,000.00, to be paid in twelve equal instalments of EUR 84,000.00, as from 11 August 2018;

c) for season 2019/20: EUR 1,008,000.00, to be paid in twelve equal instalments of EUR 84,000.00, as from 11 August 2019.

12. According to Article 5 of the Contract, the Player was also entitled to a signing-on fee of EUR 250,000.00 payable in two instalments of EUR 125,000.00 each, on 28 February 2018 and 11 September 2018 respectively.

13. Pursuant to Article 10 of the Contract, the Player has the right to terminate the Contract unilaterally under the following conditions:

a) the termination occurs during the period from 1 June and 1 July of each sports season, with Sporting to be notified 15 days in advance of the date when the termination shall become effective;

b) together with such notification, an immediate payment in the amount of EUR 60,000,000.00 is made to Sporting; and

c) once the conditions under the above subparagraphs a) and b) are fulfilled, Sporting undertakes to release the Player and authorise the FPF to forward the relevant International Transfer Certificate (“ITC”) upon request.

14. In accordance with Article 11 of the Contract, Sporting and the Player agree to confer exclusive and final competence to settle any dispute arising out of the Contract or related with the same to the “Tribunal Arbitral do Desporto (TAD)”.

15. In addition, Article 12 of the Contract states that, in the event that one party terminates the Contract without just cause, the counterparty shall be compensated for damages caused as follows:

Sporting Clube De Portugal v. Rúben Tiago Rodrigues Ribeiro & Al Ain FC & FIFA, award of 14 February 2022

a) if Sporting terminates the Contract without just cause, it undertakes to pay to the Player compensation corresponding to the residual value of the Contract, from which it can deduct remuneration to be received by the Player under a new contract corresponding to the duration of the breached Contract;

b) if the Player terminates the Contract without just cause, notably by violation of Article 10, his transfer to a third club shall depend on the payment to Sporting of EUR 60,000,000.00, without prejudice to Sporting’s right to require the Player to pay the compensation set out in the labour legislation.

16. On 15 May 2018, a group of around 50 Sporting supporters illegally entered the Sporting training grounds located in Alcochete, Portugal, when Sporting’s first team was training, and attacked some of Sporting employees and players (the “Event”).

17. Following the Event, on 13 June 2018, the Player terminated the Contract, invoking just cause.

18. On 3 October 2018, the Player signed an employment contract with Al Ain that was valid until 30 June 2019 and which contained an option for Al Ain to extend such contract until 30 June 2021.

B. Proceeding before the FIFA Dispute Resolution Chamber

19. On 30 October 2018, Sporting lodged a claim against the Player in front of the FIFA Dispute Resolution Chamber (“FIFA DRC”) seeking compensation from the Player for the breach of the Contract in the amount of EUR 62,188,600.00 plus 5% interest p.a., as from 14 June 2018; according to the Claimant, Al Ain was jointly and severally liable for such sum. In addition, Sporting requested the FIFA DRC to impose a six-month ban on the Player and two consecutive registration period bans against Al Ain.

20. On 13 December 2018, in its response submitted before the FIFA DRC, the Player argued – inter alia – that the claim was not admissible. Alternatively, the Player deemed that he had just cause to terminate the Contract and lodged a counterclaim, requesting the amount of EUR 2,188,600.00 as compensation for the breach of the Contract plus 5% interest p.a. as from 14 June 2018; in addition, he requested a ban to be imposed on Sporting for two consecutive registration periods.

21. Al Ain also filed a reply to Sporting’s claim, asking that Sporting’s request be rejected. Alternatively, Al Ain requested that the amount of compensation (if any) due to Sporting should be EUR 599,946 and that such amount must be reduced to nil pursuant to Article 44 paragraph 1 of the Swiss Code of Obligations (“SCO”).

22. It is worth noting that the Player contested FIFA’s jurisdiction. As already mentioned, the Contract contained an arbitral clause: Article 11 of the Contract stipulates that “The Parties agree

Sporting Clube De Portugal v. Rúben Tiago Rodrigues Ribeiro & Al Ain FC & FIFA, award of 14 February 2022

to confer exclusive and final competence to settle any dispute arising out of this Contract or related with same to the Tribunal Arbitral do Desporto (TAD)”, a forum that none of the Parties resorted to; moreover, the claim concerns a Portuguese player and a Portuguese football club, which excludes any international character of the dispute. Al Ain substantially agreed with the Player, arguing that the competent body to assess the dispute between the Player and Sporting was the relevant Portuguese court in line with the relevant national law of the country. However, Sporting noted that the dispute should be heard by FIFA, in view of the fact that the claim is of an international dimension since an ITC was requested and the Player signed a contract with a non-Portuguese club.

23. On such point, the FIFA DRC found that it had jurisdiction on the grounds of Article 22 lit. a) of the FIFA Regulations on the Status and Transfer of Players (“RSTP”), according to which FIFA is competent to hear “disputes between clubs and players in relation to the maintenance of contractual stability (articles 13-18) where there has been an ITC request and a claim from an interested party in relation to said ITC request, in particular regarding the issue of the ITC, sporting sanctions or compensation for breach of contract”. Since, in the present case, the issuance of the Player’s ITC by the FPF in favour of the UAEFA was at the basis of the claim for breach of contract, the FIFA DRC had jurisdiction over the issue at stake.

24. That being said, the FIFA DRC focused on the Parties’ submissions on the merits of the case.

25. The Player argued that the violent and illegal attack of Sporting’s “fans” of 15 May 2018 was severe and partially caused by Sporting’s negligence (i.e., safety and security measures were not sufficient); the Player also suggested that Sporting’s president and other officials might have been involved in the Event (on these facts, due to the Player’s initiative, criminal proceedings are also pending in Portugal). Apart from the Event, the Player contended that the Club was poorly run, and the President contributed to such bad atmosphere through bullying players publicly.

26. For all these reasons, the Player terminated the Contract for just cause on 13 June 2018 and, on 30 July 2018, he brought a claim before the “Comisao Arbitral Paritari” (“CAP”), which granted the Player’s requests; in his opinion, such CAP decision recognizing just cause of termination, is final and binding also for “sport purposes”.

27. During the summer of 2018, according to the Player, he tried to offer amicable solutions, which all failed.

28. Sporting strongly denied Player’s arguments. To sum up, the Event has been described as a thing that might happen to every employer, an accident that could not be avoided in advance. All the possible safety measures required by FIFA were in place. Also, the accusations as to the bad atmosphere in the Club were contested. Most importantly, Sporting highlighted that: (i) the severity of the Event did not amount to a violation of the Player’s rights and, in any case, he was not involved in the violence (meaning: he was not hit); (ii) the Player did not send

Sporting Clube De Portugal v. Rúben Tiago Rodrigues Ribeiro & Al Ain FC & FIFA, award of 14 February 2022

any formal complaint; and (iii) the termination of the Contract took place over a month after the Event, in breach of the Contract itself. Sporting stressed that after the termination letter, the Parties still negotiated a way out for the Player.

29. As to Al Ain’s reasoning and pleadings, it recalled that in October 2018, the Player presented himself as a free agent, also relying on CAP’s decision. It denied being jointly liable of any possible penalty and it stressed that the penalty clause agreed upon in the Contract is far from being “fair”, given the tremendous disproportion between the value of the Player (at the time in which Sporting bought him) and its figure. At the very least, the penalty must be reduced, following methods of calculation provided in CAS jurisprudence.

30. The FIFA DRC, besides its decision on jurisdiction, which was already touched upon, found that:

- the claim of Sporting is admissible;

- the claim of Sporting is rejected;

- the claim of the Player is partially accepted;

- it is established that the Player terminated the Contract with the Club with just cause;

- the claim of the Player for compensation for breach of contract is rejected.

31. In fact, the FIFA DRC established that the Player, in spite of having had just cause to terminate his Contract with Sporting on 13 June 2018, lost his right to receive any amount of compensation due to the point in time in which the decision to unilaterally terminate the Contract was made (i.e. one month after the Event). Furthermore, the FIFA DRC, noting that no outstanding remuneration was claimed by the Player, rejected the claim of Sporting and partially accepted the claim of the Player.

32. The Appealed Decision, rendered on 20 February 2020, was notified with grounds on 15 April 2020.

IV. PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT

33. On 4 May 2020, in accordance with Article R47 of the CAS Code (2019 edition), the Player filed a Statement of Appeal against Sporting and FIFA with the Court of Arbitration for Sport (“CAS”) challenging the Appealed Decision. In his Statement of Appeal, the Player requested the appointment of Mr. Michele Bernasconi, Attorney-at-law in Zurich, Switzerland, as arbitrator. These proceedings were registered as CAS 2020/A/7030 Rúben Tiago Rodrigues Ribeiro v. Sporting Clube De Portugal & FIFA.

Sporting Clube De Portugal v. Rúben Tiago Rodrigues Ribeiro & Al Ain FC & FIFA, award of 14 February 2022

34. On 6 May 2020, in accordance with Article R47 of the CAS Code, Sporting filed a Statement of Appeal against the Player, Al Ain and FIFA with the CAS challenging the Appealed Decision. In its Statement of Appeal, Sporting requested the appointment of Mr. Bernhard Welten, Attorney-at-law in Bern, Switzerland, as arbitrator. These proceedings were registered as CAS 2020/A/7051 Sporting Clube De Portugal v. Rúben Tiago Rodrigues Ribeiro & Al Ain FC & FIFA.

35. On 7 May 2020, FIFA requested to be excluded as a respondent in CAS 2020/A/7030.

36. On 11 May 2020, the Player agreed to withdraw its appeal against FIFA in CAS 2020/A/7030, and accordingly on the same date, the CAS Court Office confirmed that FIFA was no longer a party to such proceeding and that the new case reference was CAS 2020/A/7030 Rúben Tiago Rodrigues Ribeiro v. Sporting Clube de Portugal.

37. On 12 May 2020, Al Ain indicated its wish to appoint Mr. Bernasconi as arbitrator in CAS

38. On 13 May 2021, the Player inter alia confirmed that he agreed to the appointment of Mr. Bernasconi as arbitrator in CAS 2020/A/7051.

39. On 14 May 2020, FIFA requested to be excluded as a respondent in CAS 2020/A/7051.

40. On 26 May 2020, as Sporting had not agreed to exclude FIFA as a respondent in CAS 2020/A/7051, the Parties were informed that FIFA was maintained as a respondent in that proceeding.

41. On 28 May 2020, FIFA inter alia confirmed that it agreed to the appointment of Mr. Bernasconi as arbitrator in CAS 2020/A/7051.

42. On 29 May 2020, further to all Parties consenting to the consolidation of the two arbitration proceedings, the CAS consolidated the proceedings in accordance with Article R52 of the CAS Code.

43. On 5 June 2020, the Parties were transmitted disclosures made by Mr. Bernasconi and Mr. Welten, further to Article R33 of the CAS Code, which none of the Parties subsequently challenged per Article R34 of the CAS Code.

44. On 15 June 2020, the Player filed his Appeal Brief in CAS 2020/A/7030 further to Article

45. On 22 June 2020, Sporting filed its Appeal Brief in CAS 2020/A/7051 further to Article R51 of the CAS Code.

Sporting Clube De Portugal v. Rúben Tiago Rodrigues Ribeiro & Al Ain FC & FIFA, award of 14 February 2022

46. On 7 July 2020, in accordance with 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 this case was constituted as follows:

President: Mr. Cesare Gabasio, Attorney-at-law in Turin, Italy

Arbitrators: Mr. Michele Bernasconi, Attorney-at-law in Zurich, Switzerland

Mr. Bernhard Welten, Attorney-at-law in Bern, Switzerland

47. On 20 July 2020, after an enquiry from the Player in this regard, the Parties were transmitted a disclosure made by Mr. Gabasio, further to Article R33 of the CAS Code, which none of the Parties subsequently challenged per Article R34 of the CAS Code.

48. On 4 August 2020, Sporting confirmed that it had not filed an Answer in CAS 2020/A/7030.

49. On 27 July 2020, Al Ain and FIFA filed their respective Answers further to Article R55 of the

50. On 30 July 2020, the Player filed his Answer further to Article R55 of the CAS Code in CAS

51. On 13 October 2020, the Panel communicated to the Parties that Sporting’s request to order the Player and Al Ain to produce certain documents was rejected.

52. On 19 October 2020, the CAS Court Office sent the Order of Procedure to the Parties, which was signed by the Player on 22 October 2021, and the other Parties on 26 October 2021.

53. On 29 October 2020, after they were consulted, the Parties and their witnesses were called to appear at the hearing (“Hearing”), further to Articles R44.2 and R57 of the Code of Sportsrelated Arbitration (the “Code”), which was held by video-conference (via Cisco Webex).

54. The Panel were present at the Hearing and was assisted by Ms Kendra Magraw, CAS Legal Counsel. Furthermore, the following persons attended the hearing:

- For the Player:

o Mr. Rúben Ribeiro, the Player; o Mr. William Sternheimer, Counsel; o Mr. Luis Cassiano Neves, Counsel; o Mr. Rodrigo Moreira, Witness; o Mr. Luicio Correia, Expert; and o Ms. Pauline Pardal, Interpreter.

Sporting Clube De Portugal v. Rúben Tiago Rodrigues Ribeiro & Al Ain FC & FIFA, award of 14 February 2022

- For Sporting:

o Mr. José Carlos Oliveira, Counsel; o Mr. Alexandre Zen-Ruffinen, Counsel; o Mr. Juan de Dios Crespo Pérez, Counsel; o Mr. Alessandro Mosca, Counsel; o Mr. Alfonso León Lleó, Counsel; o Mr. Ricardo Gonçalves, Security Director, Witness; o Mr. Vasco Fernandes, Technical Secretary, Witness; o Mr. João Rollin Duarte, Technical Secretary, Witness; o Mr. Frederico Varandas, President; and o Mr. Francisco Salgado Zenha, Board Member/Chief Financial Officer.

- For Al Ain:

o Mr. Nezar Ahmed, Counsel.

- For FIFA:

o Mr. Miguel Liétard Fernández-Palacios, Director of Litigation; and o Mr. Alexander Jacobs, Senior Legal Counsel.

55. At the outset of the hearing, the Parties confirmed that they had no objections with regards to the constitution and composition of the Panel. During the hearing, the Parties had the opportunity to present their cases, submit their arguments and answer all the questions posed by the Panel. The Panel heard witness testimony, as well as the Player’s Party statement, and all Parties were given the opportunity to put their questions to the expert and the witnesses. At the end of the hearing, the Parties and their counsel expressly declared that they did not have any objections with respect to the procedure adopted by the Panel and that their right to be heard had been fully respected.

V. PARTIES’ SUBMISSIONS

56. As already pointed out, the FIFA DRC rejected the Player’s counterclaim for compensation for breach of contract. Therefore, the Player’s submissions in CAS 2020/A/7030, in essence, may be summarised as follows:

- According to the Player “it is axiomatic that a fundamental breach of contract cannot be cured”.

- Hence, the main request raised by the Player pertains to the reform of the Appealed Decision insofar as it would give relevance to the Player’s behaviour after Sporting’s alleged the breach of contract, with the result of denying his counterclaim.

Sporting Clube De Portugal v. Rúben Tiago Rodrigues Ribeiro & Al Ain FC & FIFA, award of 14 February 2022

- Moreover, the FIFA DRC contradicted Article 17 of the FIFA RSTP, which would grant the Player compensation. In the Player’s opinion the FIFA DRC exercised some discretion in interpreting Article 17 of the FIFA RSTP, while its wording was clear: the party breaching the contract shall pay compensation.

- Ultimately, the Player contends that the Appealed Decision violates mandatory provisions of Swiss Labour Law, where the right to compensation is dealt with and where it is stated that the worker cannot lose such right.

57. The Player submitted the following requests for relief in CAS 2020/A/7030, requesting that the Panel:

“(a) upholds the present Appeal;

(b) in doing so, amends point III/5 of the Decision so that it reads: 5. Sporting Clube de Portugal must pay to the Player compensation for breach of contract in the amount of EUR 1,420,000 plus 5% interest p.a. from 14 June 2018 until the date of effective payment.

(c) orders the Club to: (i) bear any and all costs pertaining to this appeal; and (ii) reimburse the Player his legal costs and other expenses pertaining to this appeal in the amount of CHF 40,000”.

58. The Player’s submissions in CAS 2020/A/7051, in essence, may be summarised as follows:

- the Panel must confirm that the Player had just cause to terminate the Contract.

- Under Portuguese law, harassment and violation to the Player’s personal rights, application of an abusive sanction, failure to ensure safe working conditions and offenses to the Player’s physical integrity, honour and dignity all constitutes just cause to terminate the Contract.

- Should the Panel consider that mandatory provisions of Portuguese labour law are not to be applied, the Panel must still conclude that the Player has also had just cause to terminate the Contract pursuant to the FIFA RSTP and Swiss law since the Player could not have been expected to continue with the Contract.

- In the unlikely scenario that the Panel would consider that the Player did not have just cause to terminate the Contract, Sporting is not entitled to receive any amount of compensation from the Player.

Sporting Clube De Portugal v. Rúben Tiago Rodrigues Ribeiro & Al Ain FC & FIFA, award of 14 February 2022

59. The Player submitted the following requests for relief in CAS 2020/A/7051, requesting that the Panel:

“(a) rejects in full the appeal lodged by Sporting Clube de Portugal;

(b) as requested in his Appeal Brief in the matter CAS 2020/A/7030, amends point III/5 of the Decision so that it reads: 5. Sporting Clube de Portugal must pay to the Player compensation for breach of contract in the amount of EUR 1,420,000 plus 5% interest p.a. from 14 June 2018 until the date of effective payment.

(c) orders Sporting to: (i) bear any and all costs pertaining to its appeal; and (ii) reimburse the Player his legal costs and other expenses pertaining to its appeal in the amount of CHF 40,000”.

60. Sporting’s submissions in CAS 2020/A/7051 may be summarized as follows:

- First and foremost, Sporting argues that more than 30 days passed between the Event and the termination of the Contract communicated by the Player for alleged just cause: hence, according to the Contract, the Player had lost his right to terminate the contract.

- Secondly, the just cause invoked by the Player lacks any merit.

- Thirdly, Sporting’s financial claims shall be granted.

- Finally, it shall be ascertained that Al Ain, being the new club that signed the Player, is jointly and severally liable for the compensation requested.

61. Sporting submitted the following requests for relief in CAS 2020/A/7051 (as it did not submit an Answer Brief in in CAS 2020/A/7030):

“1. To determine that the Player unilaterally terminated his employment contract concluded with the Appellant without just cause.

2. To issue an award condemning the Player and the New Club to be jointly and severally liable to pay compensation to the Appellant in the amount of:

• EUR 62,188,600.00/- (sixty two million one hundred eighty eight thousand six hundred Euro);

• To award an application of five percent (5%) interest rate per annum, starting from 14th of June 2018, when the breach of the Contract was committed, over the amount indicated above.

Sporting Clube De Portugal v. Rúben Tiago Rodrigues Ribeiro & Al Ain FC & FIFA, award of 14 February 2022

3. To order FIFA to impose over the Player a six-month restriction in participating in official matches or any other sporting sanctions considered appropriate.

4. To order FIFA impose over the New Club a ban from registering any new players, either nationally or internationally, for two entire and consecutive registration periods or any sporting sanctions considerate appropriate.

5. To determine any other relief the Panel deems appropriate.

6. To fix a sum to be paid by the Respondents, in order to contribute to the payment of the Appellant’s legal fees and costs in the amount of CHF 40,000/- (forty thousand Swiss francs); and

7. To condemn the Respondents to the payment of the whole CAS administration costs and arbitrators’ fees – if any”.

62. Al Ain’s submissions in CAS 2020/A/7051 may be summarized as follows:

- It is Al Ain’s contention that, even if the Player is required to pay compensation to Sporting, in any case Article 17 (2) of the FIFA RSTP does not apply to the present case; as a consequence, Al Ain shall not pay anything to Sporting.

- Secondly, the Player had just cause to terminate the Contract signed with Sporting.

- Finally, “even if the Player is required to pay compensation (quod non), the Appellant is entitled to a compensation amounting to EUR 377’217 and in light of the circumstances of the case, said compensation ought to be diminished to null”.

63. Al Ain submitted the following requests for relief in CAS 2020/A/7051:

“1) Holding that Article 17(2) RSTP does not apply to the present case.

2) Alternatively, holding that the Player has a just cause to terminate his contractual relationship with [Sporting] and subsequently dismiss the present appeal in its entirety.

3) Alternatively, holding that the compensation due to [Sporting] would be EUR 377’217 (Three Hundred Seventy-Seven Thousand Two Hundred Seventeen Euro) and diminish said amount to “nothing”.

4) Diminishing the amount of compensation for its payment [Al Ain] is liable to “nothing”.

5) Condemning [Sporting] to pay the cost of the arbitration in its entirety.

Sporting Clube De Portugal v. Rúben Tiago Rodrigues Ribeiro & Al Ain FC & FIFA, award of 14 February 2022

6) Condemning [Sporting] to pay [Al Ain’s] legal fees and other expenses incurred in connection with the proceedings no less than CHF 30’000.00”.

64. FIFA’s submissions in in CAS 2020/A/7051 may be summarized as follows:

- FIFA does not have any standing to be sued in the horizontal dispute between Sporting, the Player and Al Ain, which find their cause of action purely in the contractual relationship between Sporting and the Player.

- Sporting does not have any legitimate interest in the Player and Al Ain being banned from participating in official matches or from registering players, respectively.as these prerogatives lie solely with the relevant bodies of FIFA.

65. FIFA submitted the following requests for relief in CAS 2020/A/7051:

“(a) Reject the Appellant’s appeal in its entirety;

(b) Confirm the decision rendered by the Dispute Resolution Chamber on 20 February 2020;

(c) To order the Appellant to bear all costs incurred with the present procedure;

(d) To order the Appellant to make a contribution to FIFA’s legal costs”.