A. v. FC OFI Crete

VI. ADMISSIBILITY

36. The appeal was filed within the deadline of 21 days set out in Article 67 (1) FIFA Statutes (2012 edition). The appeal complied with all other requirements of Article R48 of the CAS Code, including the payment of the CAS Court Office fee.

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37. It follows that the appeal is admissible.

VII. JURISDICTION

38. The jurisdiction of CAS derives from article 67 (1) FIFA Statutes as it determines that “[a]ppeals 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 notification of the decision in question” and Article R47 of the CAS Code. The jurisdiction of CAS is further confirmed by the Order of Procedure duly signed by the Appellant. Although the Respondent did not sign the Order of Procedure, it did not submit any defence of lack of jurisdiction of CAS as is required by Article R55 of the CAS Code.

39. It follows that CAS has jurisdiction to decide on the present dispute.

VIII. APPLICABLE LAW

40. Article R58 of the CAS Code provides the following:

“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”.

41. The Panel notes that Article 66 (2) FIFA Statutes stipulates 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”.

42. The Appellant maintains that according to Article R58 of the CAS Code, Swiss law is applicable to the merits taking into account that the parties did not adopt a choice of law clause in the Employment Contract or the Supplementary Agreement. Moreover, the specificity of sport that may be found in the FIFA rules, regulations and by-laws should be applied.

43. The Respondent did not submit any position in this respect.

44. In view of the Appellant’s agreement to the application of the regulations of FIFA and Swiss law and the Respondent’s failure to provide any position regarding the law to be applied to the merits of the dispute, the Panel is satisfied to accept that it shall primarily apply the various regulations of FIFA. Additionally, the Panel will apply Swiss law should the need arise to fill a possible gap in the various regulations of FIFA. Finally, the Panel notes that questions related to the payment of medical insurance, social security and pension contributions could be governed by Greek law, as this is the law of the seat of the Club and the law with the

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closest connection to these topics. However, as this issue was not raised by the Respondent and in light of the decision on the merits in respect of these matters, the applicable law in respect of theses issue became irrelevant and the Panel will therefore not deal with this issue.

IX. PRELIMINARY ISSUES — A. The scope of the appeal proceedings

45. During the FIFA proceedings, it was in dispute between the parties whether or not the Player had just cause to unilaterally terminate the Employment Contracts with the Club. As FIFA decided that the Player had just cause to terminate the Employment Contracts and since the Club did not file an independent appeal with CAS against the Appealed Decision, the findings of the FIFA DRC regarding this issue became final and binding. As such, for the sake of these proceedings, the fact that the Player terminated the Employment Contracts with just cause and the Club being responsible for the breach is considered undisputed in the present appeal arbitration proceedings.

46. According to the Player’s request for relief, the Player is claiming additional amounts “[b]eyond the decision of the FIFA Dispute Resolution Chamber”. Accordingly, the Panel observes that the Appealed Decision is not contested by the Player as far as the outstanding remuneration amounting to EUR 47,000 plus 5% interest p.a. is concerned. As far as the compensation amounting to EUR 14,000 plus 5% interest p.a. is concerned, it is not clear whether this amount is contested as such or whether the Player is merely claiming additional damages (see p. 4, 18 of the Appeal Brief).

47. Finally, the Panel observes that the Player filed further requests for relief before the FIFA DRC (see pp. 3-4 of the Appeal Brief, e.g. a request to order the Respondent to provide additional information to the Player in regard to his health insurance, pension payments, a request to impose sporting sanctions on Respondent for the breach of contract, etc.). Although these requests were rejected by the FIFA DRC (see p. 12 of the Appealed Decision), the Player did not file these claims before the Panel. Accordingly, these claims are excluded from the scope of these appeal proceedings.

B. The Player’s registration as a minor

48. The Panel acknowledges the Player’s arguments as to his alleged illegal registration as a minor with the Club. The Player’s position in this respect is two-fold: on the one hand the Player demanded action from FIFA in sanctioning the Club for its alleged illegal registration of a minor during the FIFA DRC proceedings and, on the other hand, the Player claims additional compensation for the damages caused as a result of his alleged illegal registration.

49. The Panel cannot adjudicate upon any allegations against FIFA in the present appeal arbitration proceedings; (a) FIFA is not a party to the present proceedings, and (b) such a request was not contained in the request for relief in these proceedings. Insofar as the Player relies on his alleged illegal registration as a minor in order to claim additional compensation

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from the Club due to the fact that it caused damages to him and that it was, in turn, one of the reasons that led to the breach of the Employment Contracts by the Club, the Panel will assess this issue together with the legal merits set out below.

C. The delays in the proceedings before the FIFA DRC

50. The Panel further notes the Player’s arguments regarding the delays in the proceedings before the FIFA DRC and that this allegedly caused the Player “additional harm”.

51. This accusation of the Player is also directed at FIFA. However, FIFA is not a party to the present proceedings. As indicated above, the Panel is, therefore, not in a position to adjudicate upon any allegations against FIFA. Insofar as the Player claims additional compensation from the Club because of the delays in the FIFA proceedings, the Player failed to demonstrate how the Club could have contributed to or have caused such delays and, accordingly, on which basis the Club should be held liable for these delays. For this reason, the damages caused by the delays, if any, are not circumstances that can be taken into account by the Panel in its decision whether or not to award an additional amount of compensation to the Player.

X. MERITS — A. The Main Issues

52. The finding of the FIFA DRC in the Appealed Decision according to which the Employment Contracts were terminated by the Appellant at the end of December 2009 is not contested by the Parties and is therefore confirmed by the Panel.

53. In view of the above, the main issues to be resolved by the Panel are:

a) Is the amount of outstanding remuneration awarded to the Player by the FIFA DRC correct? b) Is the amount of compensation for breach of the Employment Contracts awarded to the Player by the FIFA DRC correct? c) Is any compensation to be awarded to the Player under the “specificity of sport”?

a) Is the amount of outstanding remuneration awarded to the Player by the FIFA DRC correct?

54. As reflected in the grounds for the Appealed Decision, the FIFA DRC decided that the Player had just cause to terminate the Employment Contracts as the Club had “seriously violated the terms of the relevant employment contract by clearly disrespecting its financial obligations in a substantial way”.

55. The FIFA DRC ordered the Club to pay to the Player outstanding remuneration in the amount of EUR 47,000 plus 5% interest p.a. until the date of effective payment. Specifically, the FIFA DRC ordered the Club to pay to the Player the outstanding signing-on payment in

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the amount of EUR 45,000 plus 5% interest p.a. as from 19 July 2009, as well as the outstanding salary for December 2009 and the Christmas bonus for 2009 in the amount of EUR 2,000 plus 5% interest p.a. as from 8 January 2010.

56. The Player is now requesting the Panel to award additional outstanding remuneration “beyond the decision of the FIFA Dispute Resolution Chamber”. Accordingly, the Panel will assess whether this amount is correct or should be amended in light of its de novo competence pursuant to Article R57 of the CAS Code.

57. It remained undisputed throughout the proceedings before the FIFA DRC as well as in the present appeal arbitration proceedings that the Club did not pay the signing-on fee of EUR 45,000 to the Player and that, according to the Supplementary Agreement, this amount fell due “upon signing the present agreement”, i.e. on 16 July 2009.

58. The Panel notes that at the time the Player filed his claim with FIFA, on 6 January 2010, this signing-on fee had already been unpaid for over five months and that the Player put the Club in default by requesting the payment of the outstanding amounts in his letter dated 22 December 2009.

59. The Panel, therefore, has no hesitation in confirming the Appealed Decision that the Player is entitled to a signing-on fee of EUR 45,000 and that the Club shall pay 5% interest per annum on this amount.

60. In respect of the interest, the Panel notes a contradiction between the operative part and the reasoning of the Appealed Decision. In the grounds for the Appealed Decision, it is reflected that the signing-on fee of EUR 45,000 fell due on 15 July 2009 and that interest on this amount must be paid as from the first day after the due date, i.e. 16 July 2009. Contrarily, the operative part of the Appealed Decision determines that interest must be paid as from 19 July 2009.

61. Although the difference is only three days, the Panel adheres to the reasoning of the Appealed Decision and considers the reference to 19 July 2009 in the operative part to be erroneous. Although the Panel finds that interest on the amount of EUR 45,000 should be paid as from 16 July 2009, because the Appellant did not file a request for relief in this respect, this would constitute a ruling ultra petita. As such, the Panel confirms the Appealed Decision in awarding 5% interest over the amount of EUR 45,000 as from 19 July 2009.

62. In continuation, the Panel notes that the FIFA DRC awarded the Player the amount of EUR 2,000 for outstanding salaries, consisting of the Player’s December 2009 salary amounting to EUR 1,000 and the Christmas bonus for 2009 amounting to EUR 1,000.

63. Although the Player did not submit any arguments in this respect, the Panel observes that this is not in line with the content of the Player’s letter to the Club dated 22 December 2009. This letter reflects that the amount of EUR 2,000 concerns “bonuses for 2008” under the first additional agreement dated 18 July 2008 and not the Player’s salary of December 2009 and the Christmas bonus for 2009. However, since the Player did not specifically request for these

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“bonuses for 2008” to be awarded by CAS, the Panel finds that awarding such bonuses would constitute a ruling ultra petita.

64. In respect of the December 2009 salary and the Christmas bonus of 2009, the Panel observes that the Supplementary Agreement determines that the Player’s salaries were to be paid “at the end of each month with the first payment due in July 30th 2009 and the last payment due in June 30th 2010”. Consequently, when the Player sent a reminder to the Club requesting it to comply with its contractual obligations on 22 December 2009, these amounts did not yet fall due, as the Club was still entitled to pay these amounts up until the end of the month.

65. However, the December 2009 salary and the 2009 Christmas bonus remained unpaid at the time the Player filed his claim with FIFA on 7 January 2010, whereby the Player implicitly terminated his Employment Contracts with the Club. The Panel adheres to the Appealed Decision and finds that indeed these two payments must be considered as outstanding and, therefore, confirms the Appealed Decision in this respect.

66. Consequently, the Panel confirms the Appealed Decision of the FIFA DRC in deciding that the Club is liable to pay the Player the amount of EUR 47,000 net for the outstanding salary payments. In respect of the interest, the Panel decides that on the amount of EUR 45,000, 5% interest per annum should be paid as from 19 July 2009 and that in respect of the Player’s December 2009 salary and 2009 Christmas bonus in the amount of EUR 2,000, 5% interest per annum should be paid as from the date following the day on which the Player filed his claim with FIFA, i.e. as from 8 January 2010.

b) Is the amount of compensation for breach of contract awarded to the Player by the FIFA DRC correct?

67. Having established that the Club is to be held liable for the early termination of the Employment Contracts, the Panel will now proceed to assess the consequences of the unilateral breach by the Club.

68. The Panel observes that the FIFA DRC awarded the amount of EUR 14,000 to the Player as compensation for the breach of contract by the Club as well as 5% interest per annum as from the date of the Appealed Decision until the date of effective payment.

69. In addition to this amount of EUR 14,000 already awarded in the Appealed Decision, in the present appeal the Player requests to be awarded the amount of EUR 187,177 as compensation. The Panel will proceed to separately adjudicate upon the different damage positions accumulating to such amount.

70. The Panel observes that Article 14 of the FIFA Regulations reads as follows:

“A contract may be terminated by either party without consequences of any kind (either payment or compensation or imposition of sporting sanctions) where there is just cause”.

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71. Although the Panel has established that the Player had just cause to terminate his Employment Contracts with the Club, this provision does not specifically determine that the Player is entitled to any compensation for breach of contract by the Club.

72. The Panel, however, is satisfied that the Player is, in principle, entitled to compensation because of the breach of the Employment Contracts by the Club. In this respect, the Panel makes reference to the Commentary to the FIFA Regulations on the Status and Transfer of Players (hereafter referred to as the “FIFA Commentary”). According to Article 14 (5), (6) of the FIFA Commentary, a party “responsible for and at the origin of the termination of the contract is liable to pay compensation for damages suffered as a consequence of the early termination of the contract and sporting sanctions may be imposed”. Accordingly, although it was the Player who terminated the Employment Contracts by filing a claim against the Club with FIFA, the Club was at the origin of the termination of the Employment Contracts and is thus liable to pay compensation for damages suffered by the Player as a consequence of the early termination.

73. The Panel observes that Article 17 (1) of the FIFA Regulations determines the financial consequences of a premature termination of a contract:

“The following provisions apply if a contract is terminated without just cause:

1. In all cases, the party in breach shall pay compensation. Subject to the provisions of article 20 and Annex 4 in relation to training compensation, and unless otherwise provided for in the contract, compensation for the breach shall be calculated with due consideration for the law of the country concerned, the specificity of sport, and any other objective criteria. These criteria shall include, in particular, the remuneration and other benefits due to the player under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, the fees and expenses paid or incurred by the former club (amortised over the term of the contract) and whether the contractual breach falls within a protected period”.

74. As the Employment Contracts do not contain any contractual provisions determining the consequences of a possible unilateral breach by one of the signatories, the Panel applies Article 17 of the FIFA Regulations and notes that there is ample jurisprudence of CAS on the issue of breach of contract. The vast majority of this jurisprudence establishes that the purpose of Article 17 of the FIFA Regulations is basically nothing more than to reinforce contractual stability, i.e. to strengthen the principle of pacta sunt servanda in the world of international football, by acting as a deterrent against unilateral contractual breaches and terminations, be it breaches committed by a club or by a player (CAS 2012/A/2874, §128, CAS 2012/A/2932, §84; CAS 2008/A/1519-1520, §80, with further references to CAS 2005/A/876, p. 17: “[…] it is plain from the text of the FIFA Regulations that they are designed to further ’contractual stability’ […]”; CAS 2007/A/1358, §90; CAS 2007/A/1359, §92: “[…] the ultimate rationale of this provision of the FIFA Regulations is to support and foster contractual stability […]”, confirmed in CAS 2008/A/1568, §6.37).

75. In respect of the calculation of compensation in accordance with Article 17 of the FIFA Regulations and the application of the principle of “positive interest”, the Panel took note of the explanation thereof by a previous CAS Panel:

A. v. FC OFI Crete,

“When calculating the compensation due, the judging body will have to establish the damage suffered by the injured party, taking in consideration the circumstances of the single case, the arguments raised by the parties and the evidence produced. Of course, it is the injured party that requests compensation who bears the burden of making, as far as possible, sufficient assertions and who bears as well the burden of proof.

As it is the compensation for the breach or the unjustified termination of a valid contract, the judging authority shall be led by the principle of the so-called positive interest (or “expectation interest”), i.e. it will aim at determining an amount which shall basically put the injured party in the position that the same party would have had if the contract was performed properly, without such contractual violation to occur. This principle is not entirely equal, but is similar to the praetorian concept of in integrum restitution, known in other law systems and that aims at setting the injured party to the original state it would have [had] if no breach had occurred.

The fact that the judging authority when establishing the amount of compensation due has a considerable scope of discretion has been accepted both in doctrine and jurisprudence (cf. CAS 2008/A/1453-1469, N 9.4; CAS 2007/A/1299, N 134; CAS 2006/A/1100, N 8.4.1. In relation to Swiss employment law, see Streiff/von Kaenel, Arbeitsvertrag, Art. 337d N 6, and Staehelin, Zürcher Kommentar, Art. 337d N 11 – both authors with further references; see also Wyler, Droit du travail, 2nd ed., p. 523; see also the decision of the Swiss Federal Tribunal BGE 118 II 312f.) (…).

The principle of the “positive interest” shall apply not only in the event of an unjustified termination or a breach by a player, but also when the party in breach is the club. Accordingly, the judging authority should not satisfy itself in assessing the damage suffered by the player by only calculating the net difference between the remuneration due under the existing contract and a remuneration received by the player from a third party. Rather, the judging authority will have to apply the same degree of diligent and transparent review of all the objective criteria, including the specificity of sport, as foreseen in art. 17 FIFA Regulations” (cf. CAS

76. The Panel finds that the legal framework set out above and the principle of positive interest are also applicable to the present case. Against this background, the Panel will proceed to assess the Player’s objective damages one by one below, before applying its discretion to adjust the total amount of objective damages based on the “specificity of sport” and other objective criteria set out in Article 17 of the FIFA Regulations.

1) Remuneration and bonus payments

77. As far as remuneration and bonus payments are concerned, the Player is requesting EUR 30,000 for remuneration and EUR 5,000 for bonus payments.

78. In its Appealed Decision, the FIFA DRC took into account that the Player concluded an employment contract with SC Sheriff on 2 January 2011. Since the Employment Contracts between the Player and the Club were terminated on 7 January 2010, the Player remained unemployed for a few days less than a year. Although the Employment Contracts were supposed to last until 30 June 2012, the FIFA DRC “decided that the remaining value of the [Employment Contract] and the [Supplementary Agreement] during the period he remained

A. v. FC OFI Crete,

unemployed, i.e. as from 7 January 2010 until 2 January 2011 corresponding to EUR 14,000, was to be considered reasonable and justified as compensation for the breach of contract by the [Club]”.

79. The Player does not agree with these conclusions of the FIFA DRC. The Player maintains that the Club only paid him his salaries until the end of November 2009. Accordingly, his salaries for seven months until the end of June 2010, twelve months until the end of June 2011 and for twelve months until the end of June 2012 (altogether, outstanding salaries for 31 months amounting to EUR 31,000) should be paid to him by the Club. Adding the signing-on fee of EUR 45,000, this amounts to a compensation of EUR 76,000.

80. The Player further argues that “in para II.26 of the [Appealed Decision] the DRC fixed the outstanding remuneration to € 47,000 consisting of € 45,000 signing-on fee, € 1,000 salary and € 1,000 Christmas bonus. However, taking into account of the fact that the contract terminated at the end of June 2012 the Appellant may claim the payment of € 76,000 for the signing-on fees and salaries until that time in compensation. Additionally, the Appellant may claim € 6,000 as payment for bonuses until that time, additionally in compensation. The amount fixed by the DRC in para. II.26 of the decision appealed against, is too low”.

81. The Club did not provide any position in this respect.

82. As set out supra, the Panel confirmed the Appealed Decision in respect of the signing-on fee, the 2009 December salary and the 2009 Christmas bonus, in the amount of EUR 47,000, as outstanding payments. This amount will therefore not be taken into account in calculating the compensation to be paid by the Club for breaching the Employment Contracts as this would lead to certain amounts being taken into account twice.

83. Considering that the December 2009 salary has already been awarded to the Player as part of the outstanding salaries due to him, the Panel notes that the remaining value of the Employment Contracts at the time of termination is EUR 30,000 (January – June 2010: 6 x EUR 1,000 for the 2009/2010 season and EUR 12,000 for both the 2010/2011 and the 2011/2012 seasons). The total amount of bonuses due during the remaining term of the Employment Contracts at the moment of the breach is EUR 5,000 (Easter and Holiday bonuses for the 2009/2010 season and Christmas, Easter and Holiday bonuses for both the 2010/2011 and the 2011/2012 seasons). Consequently, the total remaining value of the Employment Contracts at the time of breach was EUR 35,000 and this amount corresponds to the requests for relief of the Player. Considering the principle of positive interest, the amount of EUR 35,000 is the total amount of salary and bonuses the Player would have received should the Club not have breached the Employment Contracts. The Panel therefore finds that this is the amount that shall be used as the basis for calculating the total amount of compensation due.

84. The Panel, however, notes that it remained undisputed that on 2 January 2011, the Player concluded a new employment contract with SC Sheriff and that the Player was entitled to receive a monthly salary of USD […], plus a signing-on bonus of USD […].

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85. The Panel finds that, in principle, the remuneration the Player earned with SC Sheriff during the remaining contractual term of the Employment Contracts should be deducted from the amount the Player would have earned with the Club should the Club have properly performed the Employment Contracts.

86. However, in the present case, the Panel finds that it is not the entire remuneration the Player earned with SC Sheriff which must be taken into account. Rather, only the period the Player had a contractual engagement with SC Sheriff must be excluded from the period over which compensation shall be paid. In this respect, the Panel accepts the view expressed by the Player that he faced difficulties in finding a new club due to the contractual dispute with the Club. As such, the Panel finds it reasonable and fair to award compensation to the Player corresponding to the period the Player remained unemployed.

87. Taking into account that the Player remained unemployed during the period between the contractual termination on 7 January 2010 and the day he concluded an employment contract with SC Sheriff, the Panel follows the approach of the FIFA DRC in its Appealed Decision and finds it just and fair that the Player shall be compensated only for this period. Accordingly, the Player shall be compensated with twelve months’ salary (EUR 12,000) and with the Christmas (EUR 1,000), Easter (EUR 500) and Holiday (EUR 500) bonuses that normally should have been paid by the Club during this period, i.e. a total compensation of EUR 14,000 net.

88. According to the Player’s requests for relief, the Player also requested 5% interest as from the date of receipt of the petition, i.e. the Player’s claim before FIFA DRC. The Panel should therefore briefly assess whether this request should be satisfied. In this regard, the Panel notes that FIFA DRC decided that the Respondent is liable to pay to the Player the total amount of EUR 14,000 as compensation. However, 5% interest was granted “as from the date of the decision, i.e. 20 July 2012, until the date of effective payment” as opposed to the date of filing of the petition.

89. The Panel observes that article 73 of the Swiss Code of Obligations (hereafter referred to as the “SCO”) provides as follows:

“Where an obligation involves the payment of interest but the rate is not set by contract, law or custom, interest is payable at the rate of 5% per annum”.

90. Based on the above article and given the circumstances of this case, the Panel finds that indeed over the amount of compensation interest at a rate of 5% per annum shall be awarded, as was already determined by the FIFA DRC. However, the Panel finds that the FIFA DRC erred in establishing that the interest should be calculated as from the date of the Appealed Decision. The date of the Appealed Decision is an arbitrary date on which indeed the Player was declared entitled to this amount, however, in this case the entitlement existed already at the moment of the termination of the Employment Contracts with just cause (see also article 102(2) SCO) and therefore the Player is entitled to interest as of that moment, which took place before the Player filed the petition. However, as the Player himself requested that interest should be calculated as of the date following the date of the filing of the petition to FIFA, the Panel so orders.

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2) Rental fees of the apartment and meals allowance

91. As far as rental fees and meals are concerned, the Player is requesting EUR 31,000 for rental of an apartment and EUR 9,300 for two meals per day.

92. The FIFA DRC rejected the Player’s request for rental fees (EUR 31,000) and meals allowance (EUR 9,300) because, on the one hand, the FIFA DRC pointed out that “the [Employment Contract] and the [Supplementary Agreement] did not establish the amount of the rental fee and of the meal allowance and, on the other hand, that the [Player] did not provide any evidence of the alleged amounts. In this regard, the members of the Chamber referred to the general legal principle of the burden of proof, according to which a party deriving a right from an alleged fact has the obligation to prove the relevant fact (cf. Art. 12 par. 3 of the Procedural Rules). Therefore the DRC held that it could not take into account these amounts as a base for calculation of the compensation due by the [Club] to the [Player]”.

93. The Player is however of the opinion that, contrary to the relevant provisions in the Employment Contracts, “the Respondent refrained from the rental of a three bedroom apartment for the benefit of the Appellant, in spite of the fact that the Guardian of the Appellant had consistently requested that the Respondent should fulfil this contractual obligation”. The Player does not agree with the stance of the FIFA DRC that he did not submit any evidence with regard to the rental fee. The Player maintains that he informed FIFA in his submissions that “any facts can also be proven by oral evidence of the witnesses Mr. [Appellant’s father], Ms. [Appellant’s mother] and Ms. [Appellant’s sister], which should be heard”. According to Article 12 (1) of the FIFA Rules governing the procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereafter referred to as the “FIFA Procedural Rules”) evidence consists, inter alia, of witness testimony. According to the Player, it is, therefore, inconceivable as to why the FIFA DRC did not take the Player’s offer into consideration to hear the above-mentioned persons as witnesses. It is also surprising that the FIFA DRC asserted that the Player failed to prove the alleged facts, because the Respondent had not contested these facts. The Player argues that the Club did not contest these facts has to be interpreted as an acceptance of their truth pursuant to Article 9 (3) of the FIFA Procedural Rules.

94. The Player also makes reference to an exhibit to his appeal brief based on which he maintains that “a mere 3-room apartment in Heraklion costs a rent of € 1,100 per month. A 3-bedroom apartment will be at least € 300 more expensive”. In breach of its obligations, the Club did not rent the apartment from July 2008 onwards. Accordingly, the Player finds that the Club is liable to pay damages to him for a time period of five months in 2008, twelve months in 2009, twelve months in 2010 and two months in 2011, because the Player could not find a new job before 2011. Accordingly, the Player claims the amount of EUR 31,000 as damages for the breach of his contractual obligations concerning the rental fee for a total time period of 31 months.

95. In respect of the meals, the Player argues that the Club did not provide him with costs reimbursement for two meals a day during the entire contractual period, even though the Player had requested that the Club should fulfil its contractual obligations from the beginning of the working relationship. The Player again pointed out that he had offered the taking of evidence by witnesses for any relevant facts in his petition. In addition, the Player argues that

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it is obvious that meals for high-performing sportsmen are expensive. Accordingly, such meals will cost at least EUR 10 per day and an average of at least EUR 300 per month.

96. Accordingly, the Player finds that the FIFA DRC, instead of referring to the rule on the burden of proof, should have interrogated the witnesses in case it had any doubt about the facts, which were not contested by the Club. The Player finds that the Club is liable to pay these damages for a period of 31 months beginning from July 2008 onwards, leading to a claim in the total amount of EUR 9,300.

97. The Club did not submit any position in respect of these two issues.

98. The Panel finds that whether or not the FIFA DRC should have heard the witnesses can be left unanswered as this procedural flaw, if any, can be cured by CAS in the present appeal proceedings. It is consistent jurisprudence of CAS that the de novo rule of Article R57 of the CAS Code is intended to address and cure “any procedural defect” that occurs at the initial stage (CAS 2007/A/1396 & 1402, §43, with further references to CAS 2006/A/1177; CAS 2008/A/1594, §109: “However, as CAS has complete power to review the facts and the law and to rule the case de novo, the procedural deficiencies which affected the procedures before FILA disciplinary bodies may be cured by virtue of the present arbitration proceedings”, with further references to CAS 2006/A/1175,

99. The Panel observes that the Player called his father, his mother and his sister as witnesses, but that only a witness statement of the father was enclosed in the appeal brief, in which the father solely confirmed that “[t]he facts and factual issues stated in this [appeal brief] are true insofar they concern the contractual relationship and the dispute between my son, A., and the Greek club OFI Crete”.

100. By means of a letter dated 3 July 2013, the Panel requested the Player to provide any evidence or documents in his possession indicating that he rented an apartment during the period in which he was playing with the Club, as well as supporting his claims for damages for the breach of the contractual obligation concerning the rental fee for a period of 31 months. Finally, the Player was also requested to provide a copy of the lease/rent agreement as well as receipts for the rent payments.

101. On 10 July 2013, the Player answered the questions posed by the Panel. By means of this letter, corroborated by an additional witness statement of the Player’s father, the Player maintained that he could not rent an apartment during the period he worked for the Club “because he was not a lawful resident in Greece. This was due to the fact that the [Player] did not have a valid visa, a valid work permit and a valid residence permit. For these reasons the Player has no evidence that he alone or with his Custodian or Legal Guardian rented an apartment during the period he played in Greece, and there was no lease agreement or receipts for payment. (…) The [Club] hosted them “for the time being” in a flat, which may have belonged to a person of the [Club’s] administration. This flat was at a distance of some 10 km from the [Club’s] premises where the [Player] had to turn up for training and playing. For these reasons, the [Player] had to take a taxi to travel from that place to the club’s grounds and back, often twice a day, since the training took place in the morning and in the afternoon. The [Player] could not cook, and therefore he had to use restaurants. Accordingly, most of his money was spent on costs of taxis and restaurants”.

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102. In view of the above statements, the Panel is not satisfied that the Player incurred any damages in respect of rental fees. From the Player’s statements in his letter dated 10 July 2013, it appears that “[t]he [Club] hosted them “for the time being” in a flat, which may have belonged to a person of the [Club’s] administration”. As such, apparently, the Player did not incur any costs by having to pay for an apartment himself. The Panel finds that it has not been established by the Player that the Club violated article 4(a) of the Supplementary Agreement, i.e. the Player did not convince the Panel that the Club did not provide him with “[a] furnished three bedroom apartment for the PLAYER and his parents”. There was no contractual obligation for the Club to provide the Player with an apartment close to the premises of the Club. In addition, the Supplementary Agreement also does not indicate a minimum value of the apartment to be provided by the Club. In the absence of any additional evidence which could establish the Player’s request and especially due to the fact that the Player did not provide any evidence for rent fees that he actually paid, the Panel finds that the Player did not meet his burden of proof in respect of the rental fees.

103. Consequently, the Player’s request to be compensated for rental fees is dismissed.

104. In respect of the meals allowance, based on the evidence provided to it, the Panel is satisfied that the Player incurred certain damages. Corroborated by the witness statements of the Player’s father, the Panel accepts that the Club failed to “provide to the player with two (2) meals daily for the duration of the present agreement”, as was required by article 4(b) of the Supplementary Agreement. In this respect, considering the quantity of meals and the small amounts spent, it cannot be required from the Player to submit documentary evidence to establish that he indeed paid for such meals himself.

105. However, since a subsequent Employment Contract and Supplementary Agreement with the Club were signed at the beginning of the 2009/2010 season, without the Player having protested or raising any complaints in respect of these unpaid amounts, the Panel, in majority, is satisfied that the Player waived any claims he might have had based on the initial Employment Contracts. Hence, the Player cannot be compensated for meals over the 2008/2009 season.

106. Furthermore, the Panel, in majority, is of the opinion that the entitlement for the meal allowance is directly related to the actual need to cover the costs of the meals – if not provided by the Club – while the Player was actually playing for the Club and thus this right existed as long as the subsequent Employment Contract was valid, i.e. until the end of December 2009. Therefore, and because the Player was not allowed to re-enter to Greece and thus terminated the Employment Contracts with just cause at the end of December 2009, the Player is not entitled to be compensated for this allowance which became irrelevant after the termination of the Employment Contracts. Nevertheless, the Panel may take this element in consideration when dealing and deciding the issue of the compensation under the specificity of sport.

107. Thus, the only period during which the Player was entitled to receive two meals allowances per day from the Club was from July 2009 (when the subsequent Employment Contracts were signed) until the end of December 2009 (when the Employment Contracts were terminated),

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i.e. for a period of six months. Accordingly, the Panel, in majority, is satisfied that the Player incurred damages of EUR 300 per month for a period of six months, i.e. EUR 1,800. Based on the reasons explained in §90 supra, over this amount interest of 5% per annum shall accrue as of the date following the date of the filing of the petition with FIFA.

3) Salary for the Player’s legal guardian

108. As far as compensation for the guardian’s job is concerned, the Player is requesting EUR […].

109. The FIFA DRC decided to reject the Player’s claim for compensation in relation to the Club’s contractual obligation to provide the Player’s father with employment. The FIFA DRC made reference to article 6 of the FIFA Procedural Rules establishing that “only the members of FIFA, clubs, players, coaches and licensed match and players’ agents can be a party before FIFA. In addition, the Chamber highlighted that the [Player] cannot invoke damages regarding obligations undertook [sic] by the [Club] in favour of his father. Therefore, the DRC concluded that the claim for the amount of EUR 21,098 shall be rejected”.

110. The Player does not agree with this decision and refers the Panel to Article 112 SCO. The Player maintains that “according to Swiss law, the third person does not become a party to the contract. Accordingly, the Player remains authorised to claim the performance from the Respondent. Based upon the assignment between the Guardian (third person) and the Appellant for the Appellant’s benefit, the Appellant is authorised to claim the payments based on the Respondent’s violation of Clause 4.c) and 4.d) of the Agreements of 18/07/2008 and 15/07/2009 to himself”. The FIFA DRC’s assumption that the relevant obligations were undertaken only with regard to the father does not correspond to the text of the Supplementary Agreement, which clearly states that these obligations are undertaken towards the Player. The Player finds his claim for the salary of his guardian amounting to EUR […] well founded.

111. The Club did not forward any position in this respect.

112. The Panel notes that article 112 of the SCO, in an unofficial translation, provides that:

“1. A person who, acting in his own name, has entered into a contract whereby performance is due to a third party is entitled to compel performance for the benefit of said third party. 2. The third party or his legal successors have the right to compel performance where that was the intention of the contracting parties or is the customary practice. 3. In this case the obligee may no longer release the obligor from his obligations once the third party has notified the obligor of his intention to exercise that right”.

113. Article 19 of the FIFA Regulations determines as follows:

“1. International transfers of players are only permitted if the player is over the age of 18. 2. The following three exceptions to this rule apply:

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a) The player’s parents move to the country in which the new club is located for reasons not linked to football. (…)”.

114. In the opinion of the Panel, it derives from Article 4(c) and (d) of the Supplementary Agreement, the content of which is identical to Article 4(c) and (d) of the supplementary agreement to the employment contract concluded on 18 July 2008, that the Player’s father followed the Player, who was sixteen years of age at that time, to Greece because of his football career. The Player’s father did not move to Greece for “reasons not linked to football”. This conclusion is further supported by the Player’s statement in his appeal brief that “[b]ased on these contractual promises the Guardian had given up his work in Serbia and left his country with his wife and their daughter”.

115. The Panel finds that the registration of minors is an undesirable practice in the world of football and should be prevented. Such transfers violate the principles enshrined in the FIFA Regulations. As such, the majority of the Panel is of the opinion that neither a club, nor a player, should be able to derive any right from such illegal registration.

116. For the avoidance of doubt, the Panel wishes to emphasise that this is not a declaration that the Club violated the FIFA Regulations by illegally registering a minor player. This would have to be determined by the competent bodies of FIFA. However, the majority of the Panel finds that because the Player himself argued that he was illegally registered as a minor by the Club, and because the Player himself (and his guardians) by signing employment contracts with the Club was or should have been aware to the fact that such agreements contradict the FIFA Regulations, he cannot derive any rights from a provision that, assuming the Player’s registration was indeed illegal, would clearly contradict the FIFA Regulations.

117. Consequently, the Panel decides that no compensation is awarded to the Player for this reason.

4) Damages to the Player’s professional career

118. As far as compensation for damages to the Appellant’s professional career is concerned, the Player is requesting EUR 50,000.

119. The FIFA DRC found the Player’s claim for EUR 100,000 as partial compensation for the damages to his professional career “had no legal basis nor evidence that demonstrated the damage suffered or its quantity”.

120. In the present appeal arbitration proceedings, the Player reiterates his claim for damages to his professional career. However, the Player reduced his claim in the present appeal arbitration proceedings to the amount of EUR 50,000.

121. The Player refers to CAS 2008/A/1447 and maintains that based on this jurisprudence of CAS such a claim for damages can be based on articles 97, 337b and 337c of the SCO, the latter provision being applied by way of analogy. The Player maintains that the “unfair conduct of

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the [Club] after his breach of the contract caused an increased harm to the Appellant. The specificity of the sport consists particularly in the free movement of players but also the football as a market. The [Club], who asserted in his letter to the FIFA of 01/10/2010, that he did not commit a breach of contract but that instead the [Player] was in breach of contract, damaged additionally the [Player’s] position in the market”.

122. The Player confirms that he currently earns a monthly salary of USD […] and that he received a single singing-on fee of USD […] from SC Sheriff, but he maintains that he does not receive bonuses and that he is not entitled to a three bedroom apartment and two meals per day. Accordingly, the Player finds that the FIFA DRC’s assumption that the Player’s remuneration with the new club is “considerably higher than the one established under the [Employment Contracts] at the basis of the dispute” is wrong.

123. The Club did not submit any position in this respect.

124. The evidence adduced by the Player that the breach of contract by the Club caused damages to his professional career does not convince the Panel. It is not clear to the Panel how the Player calculated his claim for EUR 50,000 and why this amount should be awarded as compensation. In this respect, the Panel adheres to the considerations of the FIFA DRC in its Appealed Decision and finds that the Player failed to substantiate this request for relief.

125. One year after the breach of contract by the Club, the Player signed an employment contract with a substantially higher salary with SC Sheriff on 2 January 2011. Although it may be true that under this new contract the Player was not entitled to bonuses, an apartment and meals, taking into account these extra expenses of the Player, the Panel is not convinced that his total income is lower with SC Sheriff than it was with the Club. As such, the Player failed to substantiate his damages.

126. Consequently, as the Player did not convince the Panel that his career directly suffered from the breach of contract, no compensation is awarded to the Player for this reason. However, the Panel will take this factor into account in assessing whether the total amount of compensation based on the objective damages incurred by the Player should be amended in light of its discretion based on the specificity of sport mentioned in Article 17 of the FIFA Regulations.

5) Damages caused in relation with insurance and pension schemes

127. The Player submits that “the [Club] “saved” these payments of monthly € 700, which the [Player] was due, at least for the time from 01/07/2008 onwards during 31 months. Accordingly, the [Player] claims damages at the amount of € 21,700 for the loss of health insurance payments, life insurance payments and payments to social pension schemes and social security payments”.

128. The Panel notes the Player’s observation that the Club “saved” these expenses. The Panel finds that the mere fact that the Club saved certain expenses does not necessarily mean that the Player incurred extra costs. Insofar as the Player claims damages because the Club failed to conclude medical insurance, life insurance, social pension schemes or make social security payments, the Panel finds that these claims cannot be accepted in the absence of any proof of

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additional costs incurred by the Player. The Panel finds that awarding the compensation claimed would contravene the principle of positive interest recalled supra.

129. As such, no compensation is awarded to the Player for the Club’s failure to pay the Player’s insurance and pension schemes. However, again, the Panel considers this to be a factor that shall be taken into account in assessing whether the total amount of compensation based on the objective damages incurred by the Player should be amended in light of the specificity of sport referred to in Article 17 of the FIFA Regulations.

6) Damages incurred by the Player because of supporting his family

130. According to the requests for relief, the Player is claiming EUR […] as compensation for damages until the end of November 2009, which the Appellant suffered in support of his family, namely EUR […] for payment to his father […], EUR […] for payments to his sister […], and EUR […] for payments concerning travelling costs for his father […], his mother […] and his sister […].

131. In respect of the Player’s claim for damages incurred by supporting his family, the FIFA DRC considered that the Player’s claim “had neither contractual basis nor evidence which demonstrated the damage suffered”.

132. The Player maintains that “[b]ased on the individual circumstances of the case it is clear that the [Club] is also liable to pay to the [Player] damages, which he suffered in support of his family at an amount of € […] (…). The specificity of sport, in particular the principle of the protection of minors as recognized in Article 19 of the [FIFA Regulations] (…) require that in the circumstances of the particular case the minor should be accompanied by his family”. Because the Club failed to provide the Player’s father with a job, the Player “was the only person in the family who earned money. Due to the difficult economic situation in Serbia and the [Player’s] difficult position in Greece the Guardian and the other members of the family could not simply return to Serbia. They had to rely on the financial support by the [Player] in order to remain and continue to support him”.

133. The Panel finds on majority that the Player’s interpretation of Article 19 of the FIFA Regulations is incorrect. The provision merely prohibits the registration of a minor with a foreign club, unless the family of the player moves to another country for reasons not related to football and the Player subsequently, after the family’s move, signs a contract with a club. The article clearly does not deal with any consequences deriving from a situation under which the parties, as is the case here, breached this rule. For sure there can be no justification to allow a player and his family to benefit from such breach of the rule by asking FIFA or any other adjudicating panel to issue an award that may give an incentive for players and clubs to breach the rule. Any such interpretation will be clearly against the basic spirit and rationale of Article 19 and thus should be denied.

134. Accordingly, there was no obligation for the family to stay together with the Player; it was merely a choice. Although it was very understandable, this choice does not correspond to the spirit and purpose of Article 19 of the FIFA Regulations and the expenses related to the stay of the Player’s family in Greece cannot be directly attributed to the Club.

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135. Furthermore, insofar as the Player’s claim relies on the Club’s failure to find employment for the Player’s father, this argument must be rejected as this has already been decided supra.

136. Consequently, the Player’s claim for damages incurred because of supporting his family is rejected. However, again, the Panel considers this to be a factor that shall be taken into account in assessing whether the total amount of compensation based on the objective damages incurred by the Player should be amended in light of the Panel’s discretion pursuant to the specificity of sport referred to in article 17 of the FIFA Regulations.

Conclusion

137. In light of the above, the Panel partially overturns the Appealed Decision and awards a net amount of EUR 15,800 to the Player as compensation for the damages incurred by him as a result of the breach of the Employment Contracts by the Club, with 5% interest per annum accruing as of the date following the date of the filing of the petition with FIFA.

c) Is any compensation to be awarded to the Player under the “specificity of sport”?

138. In the developments above, the Panel considered all objective damages incurred by the Player. Below, the Panel will assess whether there are any reasons that should lead the Panel to decide that such amount should be amended in light of the Panel’s discretion in adjusting such amount pursuant to the “specificity of sport” enshrined in article 17 of the FIFA Regulations.

139. The notion of the “specificity of sport” has been commented upon and interpreted in CAS jurisprudence. The Panel adheres to the views expressed in the following two arbitral awards:

“(…) the specific circumstances of a case may lead a Panel to increase the amount of compensation, by letting itself inspire, mutatis mutandis, by the concept of fair and just indemnity foreseen in the art. 337c para. 3 and art. 337d para. 1 Swiss Code of Obligations, without applying the strict quantitative limits foreseen in such rules. (…)” (CAS 2008/A/1519-1520, § 156). “(…) The criterion of specificity of sport shall be used by a Panel to verify that the solution reached is just and fair not only under a strict civil (or common) law point of view, but also taking into due consideration the specific nature and needs of the football world (and of the parties being stakeholders in such world) and reaching therefore a decision which can be recognised as being an appropriate evaluation of the interests at stake, and does so fit in the landscape of international football” (CAS 2007/A/1358, § 40 of abstract published by CAS).

140. The Panel will therefore assess whether it feels the objective amount of damages of EUR 15,800 is just and fair or whether this amount should be reduced or increased in light of the “specificity of sport”.

141. The Panel considers that the Player’s claims in respect of the alleged damages to his professional career, the damages caused in relation to the pension and social security schemes, and the damages incurred by the Player in supporting his family are not objectively

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quantifiable, but are aggravating factors that should be taken into account in increasing the compensation to be awarded to the Player.

142. In addition, the fact that the Club registered a minor of sixteen years of age for a period of three football seasons and then breached the Employment Contracts after only seventeen months while the Club knew that the Player’s family moved with him to Greece, should be considered as an aggravating factor.

143. Furthermore, the Club’s failure to pay the Player his signing-on fee of EUR 45,000 from the beginning of the contractual engagement, the Club’s failure to take the necessary arrangements in order for the Player to obtain a valid visa or any other kind of residence permit and the Club’s awareness of the fact that the Player’s family largely relied on the Player’s income should be taken into account as aggravating circumstances.

144. The Panel also takes into account that the breach of contract occurred within the protected period, i.e. “within a period of three entire seasons or three years, whichever comes first, following the entry into force of a contract, where such contract is concluded prior to the 28th birthday of the professional (…)” (cf. Definition of “protected period” in the FIFA Regulations).

145. Lastly, the Panel considers the Player’s argumentation as to the fact that a player involved in a contractual dispute regarding breach of contract normally encounters difficulties in finding a new club, especially if the respective proceedings are still pending. If a player signed a contract with a new club and FIFA or CAS finally decided that the player did not have just cause to terminate his contract prematurely, the new club would be jointly and severally liable. For this reason, clubs are generally not particularly interested in signing a player that is involved in a contractual dispute with his former club. As a result, a player is prevented from mitigating his damages.

146. Taking into account these multiple and severe aggravating circumstances and in the absence of any answer from the Club, the Panel finds it fair to award an additional compensation to the Player of one year salary, i.e. EUR 12,000 net, plus interest of 5% per annum accruing as of the date of issuance of the present award.

B. General Conclusion

147. Based on the aforementioned, and after taking due consideration of the regulations applicable to the event and all the evidence produced and all arguments submitted, the Panel finds that:

a) The Club is liable to pay to the Player the amount of EUR 47,000 net as outstanding salary as well as 5% interest p.a. on the amount of EUR 45,000 as from 19 July 2009 and 5% interest p.a. on the amount of EUR 2,000 as from the date the Player submitted his claim with FIFA, i.e. 8 January 2010. b) The Club is liable to pay to the Player the net amount of EUR 15,800 as compensation for the breach of contract by the Club as well as 5% interest p.a. on the amount of EUR

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15,800 as from 8 January 2010 and 5% interest p.a. on the amount of EUR 12,000 as from the date of issuance of the present arbitral award. c) In light of the aggravating circumstances of the breach by the Club and the “specificity of sport”, the Player is entitled to an additional amount of compensation equal to one year salary under the Employment Contracts, i.e. EUR 12,000 net.

148. Consequently, the Panel partially upholds the appeal. Any other prayers and requests for relief are dismissed.