FC Metallurg Donetsk v. Erol Bulut

II. FACTUAL BACKGROUND

4. The circumstances and provisions discussed below constitute a summary of the relevant facts and evidence as set forward by the Parties in their respective written submissions and during the hearing. This factual background is made for the sole purpose of providing a synopsis of the matter in dispute. Additional facts may be set out where relevant, in connection with the legal discussion.

5. On 7 September 2007, the Parties signed an employment contract (hereinafter referred to as “the Contract”), valid as of the date of signature until 30 June 2008.

6. On 4 March 2008, the Parties signed an additional agreement, which extended the Contract until 30 June 2011. All terms and conditions of the Contract remained unchanged.

7. The Parties also signed an undated agreement regarding disciplinary sanctions and bonuses (hereinafter referred to as the “ADSB”), which was valid during the term of the Contract, i.e. until 30 June 2011.

8. The relevant provisions of the ADSB and the Contract provide the following:

ADSB

“Article 1.1. The football player who decreased his playing qualities and has finished fulfilling his professional duties can be placed on a different salary.

Article 1.2. A player who got an injury during the game, training or caused by a decease, has right to get 100% bonus in the period of two calendar games under main coach’s consideration.

Article 2.1. For honest discharge of the duties, for high level of sport scores, for professional and sport mastery, for individual contribution on attainment by FC Metallurg victorious sports results, The Club makes payment to Football Player in the following order:

a) The Club pays the sum of money in the amount of 300,000 USD $ net till the 30 of June 2008; b) 2008/2009 season – 400,000 USD $ net; c) 2009/2010 season – 400,000 USD $ net; d) 2010/2011 season – 550,000 USD $ net”.

CONTRACT

“Article 3.1. During the Contract validity the Football player undertakes:

(…)

- to take part in all games by the decision of the Club and coach team, including the games of the first and second teams and fan-clubs.

(…)

- to apply obligatory to the Club medical service in case of injuries or illness and exceedingly thoroughly follow the instructions of the specialists of that service…”

Article 3.3 During the validity of the Contract the Club undertakes:

- to provide the Football player with the possibility to actualize his professional skills in accordance with the conditions of the present Contract;

(…)

- to organize full medical service of the Football player, diagnostics, treatments, provide with medicaments, vitamins, in case of necessity to finance the treatment (operation) by the specialists in the territory of Ukraine;

- to administer therapy and diagnostics in abroad in case of lack of necessary equipment of qualified specialists in the territory of Ukraine;

(…)

Article 3.4. The Club has the rights:

(…)

- to control the execution by the Football player of his duties, give to the Football player all necessary admonitions, apply to the Football player sanctions and disciplinary actions, provided by the Statue or collective agreement of the Club, Order of the Ukrainian football competitions among professional teams and the labour legislation in force of Ukraine, including the transfer of the Football player to the undermost teams of the Club and decrease the wages;

(…)

Article 4.4.

The Club can apply to the Football player financial sanctions by the curtailment of the fringe benefits for the infraction of the game rules, violation of the present Contract and for the other sport contraventions in accordance with the Statue of the Club or collective agreement of the Club, Agreement “about bonuses method and social provision of the Football player”, and Rules of the Ukrainian football competitions among professional teams as well as at any moment the Club may terminate a present contract based on decision of the Club Council of Sport and appropriate order if the Football player doesn’t conform the level of the game in the team or loss of necessary physical form.

Article 4.5.

During the validity of the present Contract, in connection with its non-fulfilment by the Football player, as well as the decrease of the craftsmanship or loss of the necessary physical form, and also in case of exhibiting the football player to a transfer, the rate of the wages can be changed into the way of decreasing amenably the decision of the Club Council of Sport and in concordance with labour legislation in force of Ukraine.

Article 5.3

In case of disagreements, which can appear during the exercise of the present contract, the parties have the rights to determine disputes in regular courts, in accordance with current legislation of Ukraine;

Article 6.4.

(…)

In case of pre-term denunciation of the Contract by the Football player for violation of the Contract conditions by the Club, the Football player has the right to receive the indebtedness of the salary for the period he worked in the Club.

(…)

Article 5.2.

All disputes and disagreements, appearing during the exercise of the Contract’s obligations, the Parties undertake to resolve them with the help of discussions and arrangements. In case of understanding frustration between the Football player and the Club, the Club Council of Sport takes the irreversible decision, which can be appealed in the Bureau of Professional football league of Ukraine, Controldisciplinary committee, Appellate committee of Football Federation of Ukraine.

(…)

Article 6.6.

The Contract can be cancelled by the Club unilaterally at any time and on any basis without written notification of the Player”.

9. On 3 May 2008, the Player sustained a Cruciate Rupture in his knee during a game against the club VC Vorskla Plotava.

10. In the Player’s opinion, the Club’s medical department did not at first determine the seriousness of the injury, and the Player was compelled to attempt training for three more days with a swollen knee and significant pain. He subsequently contacted, by telephone, Dr Grevenstein, in Germany, in the presence of the former team doctor of the Club, to seek medical advice and, if appropriate, to obtain the necessary treatment in Germany. No former written approval to do so was presented in the proceedings. These factual circumstances are thus disputed by the Club, which claims that the Player, of his own accord and without permission from the Club, left for Germany to undergo medical treatment.

11. According to the medical report of Dr Grevenstein, the Player underwent medical treatment on 7 May 2008 at Dr Grevenstein’s clinic in Mainz, Germany. Dr Grevenstein undertook an MRI-scan of the Player’s right knee on the same day which showed a bone bruise, a rupture of the anterior cruciate ligament (ACL) and retro patellar cartilage damage. On 9 May 2008, Dr Grevenstein performed an ACL-repair with re-fixation of the medial meniscus. After the operation, the Player stayed in Germany for rehabilitation.

12. In the period from 24 June until 10 July 2008, the first team of FC Metallurg stayed in a training camp in Harsewinkel/Marienbild in Germany. According to the Player’s statement, he took this opportunity to visit his team mates in the training camp on 27 June 2008 where the Club’s team doctor examined the Player’s knee, and expressed “his amazement about the positive healing process”. The Player was also invited for dinner by the Club’s sports director, Mr. B.N. Israelyan, and the trainer, Mr. M. Kostov and neither expressed any concerns or objections to the Player’s continued rehabilitation in Germany. On the contrary, they wished him a positive healing process, in Germany, over the next 4-6 months.

13. During the proceedings before the FIFA Dispute Resolution Chamber and the proceedings before CAS, it is undisputed by the Club that the Player had in the period from May 2008 until the end of October 2008, received his monthly salary in the amount of USD 33’333.33 without any delay or deduction by the Club. Furthermore, it is undisputed that no written evidence in the form of letters or emails has been submitted by the Club, demonstrating that during the period from May until October 2008 it protested against the Player’s surgery and rehabilitation treatment in Germany, or demanded that he returned to the Ukraine.

14. In October 2008, after the end of his rehabilitation in Germany, the Player returned to Ukraine to take up his position as a professional footballer under contract with the Club. However, on 1 November 2008 shortly after his return, the Sports Board of the Club decided with reference to the Club’s purported rights under the Contract and the ADSB to:

– relegate the Player to the second team – put the Player up for transfer as of 1 November 2008; – to decrease the Player’s salary and other additional payments, including bonuses by 50%, starting on 1 November 2008.

15. On 6 November 2008, the Academy of Medical Science of Ukraine allegedly carried out an examination of the Player’s right knee joint, and according to the Club, this examination showed that the Player’s treatment in Germany had resulted in an aggravation of the Player’s injury.

16. After the decisions of the Club were implemented, around 1 November 2008, the Player asserted that the Club refused him access to the training field and no longer provided him with the proper training equipment, and also that he had been relegated to the Club’s second team. Further his normal monthly salary of USD 33’333,33 had as of 1 November 2008 been reduced to USD 15’183,33.

17. Moreover, the Club had only paid a bonus of USD 100’000 out of a total of USD 300’000 as set forth in accordance with Article 2.1. a) of the ADSB.

18. On 5 December 2008, the Player’s lawyer contacted the Club, seeking that the Club confirmed “that the contract will be fulfilled by the Club until its ending by the term of 30 June 2011; that my client is a member of the team of the Club and will participate at the training and any [else] activity of the team; that the money i.e. the sum of USD 200’000 will be paid without delay until 19 December 2008”.

19. Without answer to the letter of 5 December 2008, the Player’s lawyer wrote again on 27 January 2009 to the Club seeking payment of the outstanding amount of USD 200’000 as well as the remaining part of the salary for the months of November and December 2008. Furthermore, the Player sought compensation for his loss due to the fluctuation of the Ukrainian currency, in the amount of USD 6143,52 as well as reimbursement for the expenses paid for the medical treatment and rehabilitation in Germany for USD 27’175. The Player requested that the total outstanding amount of USD 263’618.58 be paid before 10 February 2009; failing which, a claim would be filed with the Dispute Resolution Chamber of FIFA.

20. As no response from the Club was received, on 19 February 2009, the Player lodged a claim (amended on 29 May, 20 July and 13 October 2009) against the Club before the FIFA Dispute Resolution Chamber.

21. On 9 July 2009, the Player terminated his contract with the Club with immediate effect.

22. In his claim before FIFA, the Player made the following requests for relief:

a) “USD 200,000 as single payment due on 30 June 2008 according to art. 2.1 of the ADSB (the player alleged to have received only USD 100,000 out of the USD 300,000); b) USD 45,550 as monthly salaries for November and December 2008 as well as January 2009 (the player allegedly only received USD 18,150 instead of USD 33,333 each month);

c) USD 31,300 as monthly salaries for February and March 2009 (the player allegedly only received USD 17,683 each month); d) USD 15,183 as monthly salary for April 2009 (the player allegedly only received USD 18,150 for April); e) USD 16,199,33 as monthly salary for May 2009 (the player allegedly only received USD 17,134 for May); f) USD 15,699 as monthly salary for June 2009 (the player allegedly only received USD 17,634 for June); g) USD 6,450.52 for exchange rate fluctuations; h) USD 26,882 for medical costs (converted from EUR 21,205.81); i) USD 3,000 for accommodation costs for the period from January to June 2009; j) USD 400,000 as compensation for the season 2009/2010; k) USD 550,000 as compensation for the season 2010/2011.

The interest at the rate of 5% p.a. is calculated as follows:

a) 5% interest on USD 200,000 as of 30 June 2008 (date on which the amount fell due); b) 5% interest on USD 78,575,52 as of 19 February 2009 (date on which the claim was lodged); c) 5% interest on USD 32,607 as of May 2009 (date on which the amendment to the claim was lodged); d) 5% interest on USD 923,987 as of 20 July 2009 (date on which the amendment to the claim was lodged)”.

23. On 19 January 2010 the Club filed a counterclaim against the Player based on the following request for relief:

a) “USD 300 as fine for each training session the player missed according to art. 1.4. of the ADSB”For coming late to training or any official event, conducted by the Club, the penalty is 300$”.); b) sporting sanctions of four months for the player due to his unilateral breach of contract; c) compensation for breach of contract of the whole remaining amount of his salaries as of the date of his departure on 9 July 2009; d) compensation for the club’s sporting loss due to the breach of contract by the player; e) compensation for the club’s sporting loss due to the player’s failure to train; f) reimburse all salaries paid to the player after the date the player missed his first training session; g) compensation for self-inflicted, which the player aggravated by seeking medical treatment in another territory”.

24. On 31 October 2013, the FIFA Dispute Resolution Chamber rendered the following decision (without grounds) (the “FIFA Decision”):

1. “The claim of the Claimant/Counter-Respondent, Erol Bulut, is partially accepted.

2. The counterclaim of Respondent/Counter-Claimant, FC Metallurg Donetsk, is rejected.

3. The Respondent/Counter-Claimant has to pay to the Claimant/Counter Respondent, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of USD 323,931 plus 5% interest p.a. until the date of effective payment as follows:

a) 5% p.a. as of 1 July 2008 on the amount of USD 200,000; b) 5% p.a. as of 20 July 2009 on the amount of USD 123,931.

4. The Respondent/Counter-Claimant has to pay to the Claimant/Counter-Respondent, within 30 days as from the date of notification of this decision, compensation for breach of contract in the amount of USD 650,000 plus 5% interest p.a. as from 31 October 2013 until the date of effective payment.

5. In the event that the amounts due to the Claimant/Counter-Respondent in accordance with the abovementioned numbers 3. and 4. are not paid by the Respondent/Counter-Claimant within the stated time limits, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision.

6. Any further request filed by the Claimant/Counter-Respondent is rejected”.

25. The FIFA Decision was communicated with grounds to the Parties on 25 March 2014.

III. ARBITRAL PROCEEDINGS — A. Proceedings before the CAS

26. On 14 April 2014, the Appellant filed its statement of appeal before the Court of Arbitration for Sport (hereinafter referred to as “the CAS”) against the Player with respect to the FIFA Decision and nominated Mr Stuart McInnes as arbitrator.

27. On 24 April 2014, the Player informed the CAS Court Office that he nominated Ms Sylvia Schenk as arbitrator.

28. On 25 April 2014, the Appellant filed its appeal brief with the CAS in accordance with Art. R51 of the CAS Code.

29. On 5 May 2014, FIFA informed the CAS Court Office that it renounced its right to intervene in the present arbitration proceedings.

30. On 9 July 2014, the CAS Court Office informed the Parties that the panel appointed to hear the case was constituted as follows:

President: Mr Lars Halgreen, Attorney-at-law, Copenhagen, Denmark,

Arbitrators: Mr Stuart McInnes, Solicitor in London, United Kingdom, Ms Sylvia Schenk, Attorney-at-law, Frankfurt-am-Main, Germany.

31. On 25 July 2014, the Respondent filed his answer with the CAS in accordance with Art. R55 of the CAS Code.

32. On 17 and 22 October the Appellant and Respondent, respectively, signed and returned the Order of Procedure to the CAS Court Office.

B. The hearing

33. On 25 November 2014, a hearing was held in Lausanne. The Panel was assisted at the hearing by legal counsel to the CAS, Mr Antonio de Quesada.

34. The Appellant was represented by Mr Juan de Dios Crespo Pérez, Attorney-at-law in Valencia, Spain and Mr Ivan Bykovskey, Attorney-at-law in Moscow, Russia.

35. At the beginning of the hearing, Mr Pérez explained that due to the unfortunate political situation in the Ukraine, no representatives of the Club were able to be present at the hearing. For the same reasons, the Appellant was not able to present any witnesses. In response to the Panel’s question about the possible availability of the witnesses via telephone, Mr Pérez responded that this option was not available either. Hence, the Appellant would solely rely on the written statements and submissions submitted to FIFA and during the proceedings before CAS.

36. The Respondent appeared in person and was represented by Mr Kai Ludwig, Attorney-at-law in Meilen, Switzerland. The Respondent called the following witnesses:

– Dr Jakob Grevenstein – Mr Ender Kolcak

37. The statement of the Respondent and the witness testimonies may be summarized as follows:

(i) The testimony of Mr Erol Bulut

38. Mr Erol Bulut explained that he is a Turkish national, but he had for many years lived in Germany and worked as a professional footballer. In 2007, he had signed the Contract with the Club and, in January 2008, the parties had discussed the extension of the Contract. These discussions led to the signing of the contract extension in March 2008 together with a side agreement regarding bonuses. He had very good relationship with the club management and the coaching staff. When he was injured during a match in May 2008, he went to the Club’s doctor. His knee was swollen, but the Club did not have the proper medical equipment to examine his knee. He discussed the situation with the medical team of the Club, and they agreed that he should contact Dr Grevenstein in Germany and have an MRI-scan performed on his knee. The General Manager of the Club was also informed about the situation, and they shook hands when he went to Germany to undergo surgery. He sent reports back to the Club every

ten days. When his club was at a training camp in Marienbild, he visited the team. His knee was examined by the Club doctor, who was very pleased with the progress, and everybody wished him a speedy recovery and said that the team needed him. In October, he returned to Ukraine following his successful surgery and rehabilitation period. Upon his return, the General Manager told him that the coach no longer wanted him as a member of the team. When he confronted the coach, he said that the ‘system’ had changed and he should instead talk to the management of the Club. He felt that the Club was looking for a way to push him out of the team. They tried to find a financial solution, but could not agree terms. In the meantime, he was denied access to the training centre, and the Club did not provide him with medical or physiotherapy assistance. Moreover, his salary was cut by 50 per cent in November 2008, and he was relegated to the Club’s second team where he played for a couple of months. It was clear to him that the Club felt no responsibility for him anymore, and in the beginning of December 2008, he asked his lawyer in Germany to contact the Club officially. No response was received to his lawyer’s letters. In February, he felt compelled to bring a claim before FIFA’s Dispute Resolution Chamber. In the spring of 2009, he spoke with the General Manager again, which left him feeling that he was no longer safe in Ukraine. Shortly thereafter, he returned to Germany on the advice of his lawyer. After his return to Germany, he found a new club in Greece (Olympiakos Voulou 1937 FC and later Omilos Filathon Irakliou), and played there for four years. His salary as from 7 September 2009 until 30 June 2011 amounted to approximately USD 95’000. After the operation his right knee has not presented any problems or impacted on his ability to play football at professional level. Presently, he is an assistant coach in Turkey. During cross-examination, Mr Bulut confirmed that the reason for going to Germany in May 2008 was that no MRI-scanning equipment was available in Donetsk. Furthermore, he confirmed that he had not received written consent from the Club to go to Germany to be operated upon. Finally, he explained that 75 per cent of the cost for the knee operation was covered by his private insurance in Germany, which had paid approximately EUR 15’000.

(ii) The testimony of Dr Grevenstein

39. Dr Grevenstein testified that he was a very experienced surgeon who throughout his career had performed approximately 30000 surgeries. In relation to Mr Bulut’s surgery, he explained that it was a simple and standard procedure, and that Mr Bulut had a stable knee after the operation. Mr Bulut attended normal check-ups after the operation, and the knee healed in a satisfactory manner. Five to six months after surgery, he was able to participate in training and matches as a professional footballer. During cross-examination, Dr Grevenstein stated that he had no personal knowledge of the medical equipment and the qualifications of the medical staff of either FC Metallurg Donetsk or any other club in Donetsk. When Mr Bulut had arrived at his clinic in May 2008, he did not bring any medical records from the Ukraine, and Dr Grevenstein stated that he had not talked to any of the medical staff from the Club. This was, however, a normal procedure as he did his own examinations of any patient before surgery. He was not able to make a qualified opinion on the medical records from the Academy of Medical Science of the Ukraine, but he could confirm that Mr Bulut’s knee operation had been successful, and that the healing process afterwards had been normal. He had heard from Mr Bulut that he had

continued his professional career in Greece after returning from the Ukraine, and he had no knowledge of any subsequent complications following the operation.

(iii) The testimony of Ender Kolcak

40. Mr Kolcak had been called as a witness to testify in his capacity as a friend of Mr Bulut, having visited him on several occasions in Donetsk. However, during the first part of the testimony it became apparent that Mr Kolcak was not able to give his witness statement in English, and since no German/English translator was retained by the Respondent, the Chairman of the Panel excused the witness.

41. Following the testimonies, the Parties presented their closing statements and conclusions. Both Parties declared at the end of the hearing that they had no objection with respect to the formation of the Panel, nor the way in which the proceedings had been concluded, and that their right to be heard and to be equally treated had been respected.

IV. SUBMISSIONS OF THE PARTIES — A. The position of the Appellant

42. In the Statement of Appeal, the Club challenged the FIFA Decision and submitted a number of requests for relief.

43. In the Appellant’s Appeal Brief, the following requests for relief were submitted:

“A). To declare the nullity of the Decision as per the non-exhaustion of the legal remedies by the Player and consequently to direct the present proceedings to the to the arbitration tribunal of the Football Federation of Ukraine which is the competent entity to deal with the case at stake;

OR ALTERNATIVELY,

B). IN THE UNLIKELY ALTERNATIVE that the Panel does not agree with the aforementioned understanding, to fully accept the present appeal against the Decision of the FIFA Dispute Resolution Chamber dated 31 October 2013. Consequently, to adopt an award annulling said decision and declaring that:

1). The appealed Decision is fully set aside and

2). The Player terminated with no just cause the Employment Contract it had signed with Metallurg,

2.1). As consequence of the above to state that the Respondent shall not be entitled to receive any financial amount from the Appellant following to its unilateral termination of the Employment Contract.

2.2). As consequence of the above to order the Respondent to pay to the Appellant a compensation in the amount of 2,925,000.00/- USD (Two Million Nine Hundred and Twenty Five Thousand USD only) – being the Player’s subsequent club the Greek club Olympiakos Volos jointly and severally liable for the payment of said compensation.

2.3). To order the Player to pay an additional 5% annual interest on the amounts due to the Appellant as from the date of the breach of the Employment Contract, i.e., as from 9th of July 2009.

OR IN THE ALTERNATIVE

C). In the unlikely event that the Panel decides that the Appellant was in breach of contract, to mitigate the indemnification according to point 48 to 50 of the present Appeal Brief and limit the compensation to be paid in favour of the Appellant to the salaries he had to be paid up to the date when he unilaterally terminated the Employment Contract, i.e. up to the 9th of July 2009.

D). To fix a sum of 20,000/- CHF to be paid by the Respondent to the Appellant, to help the payment of its legal fees and costs.

E). To condemn the Respondent to the payment of the whole CAS administration costs and the Arbitrators fees”.

44. In support of its request for relief, the Appellant’s submission, in essence, may be summarized as follows:

Jurisdiction

a) The FIFA Decision should be annulled due to the non-exhaustion of the legal remedies by the Player, both with regard to Art. 52 of the Contract and Art. 24 of the Statutes of the Football Federation of the Ukraine. Furthermore, Clause 1 of Art. 1 of the Regulations of the Dispute Resolution Chamber of the Football Federation of the Ukraine and part 2 of Art. 53 of the Disciplinary Rules of the Football Federation of Ukraine explicitly stipulate that the Chamber shall have exclusive authority to resolve disputes between clubs, football players and coaches, which deal with employment and contractual disputes, which arise from employment relationships. The Appellant also made reference to Art. 68.3 of the FIFA Statutes, which states:… such dispute shall be taken to an independent and duly constituted arbitration tribunal recognized under the rules of the association or confederation or to the CAS”. Against this background, the FIFA Dispute Resolution Chamber should have declared itself incompetent to adjudicate the Player’s complaint, and subsequently the CAS should dismiss the case for lack of FIFA jurisdiction in the first instance.

The merits

b) The Appellant did not breach any contractual obligation towards the Player by failing to pay USD 200’000 to the Player as a bonus. According to Swiss law, a clear distinction has to be made between remuneration to be considered as a salary or as a bonus. In the latter case, the

payment of a bonus should only be made if the conditions for such bonus payment have been fulfilled according to the contract. Pursuant to Clause 2.1 of the ADSB, payment of USD 300’000 is entirely up to the Club’s discretion after evaluation of the Player’s individual performance. The condition triggering any payment of a bonus should be the Player’s involvement in the Club’s success, and the Club’s payment of USD 100’000 out of a maximum of USD 300,000 should be regarded as a demonstration of good faith of the Club towards the Player, who for the most part of the season had been injured. Thus, the FIFA Decision to award the Player USD 200’000 as outstanding remuneration is clearly a wrongful interpretation of the Club’s obligations to the Player according to the Contract and the ADSB.

c) The Player did not obtain written consent from the Club to leave the Ukraine in order to be operated upon in Germany. This unjustified and unwarranted action by the Player, which led to four consecutive months of absence from his employment at the Club, is a breach of the Player’s contractual obligations towards the Club. In this respect, the wording of Art. 1.5 of the ADSB is self-explanatory, in that, absence from training without any justifiable reason is punishable by a 50% reduction in salary up to the dismissal from the team itself.

d) The Player’s salary was justifiably reduced by the Club as of 1 November 2008 due to the Player’s above-mentioned breach of the employment contract. According to the Contract and Ukrainian labour legislation, the Club had the sufficient legal basis for reducing the Player’s salary by 50% as of 1 November 2008. This decision was made by the highest responsible body i.e. the Sports Board of the Club with direct reference to Art. 3.4 of the Contract. This contractual right of the Club to make a reduction in the Player’s salary under the given circumstances is embedded in a legally binding agreement between the Parties and pursuant to the general legal principle of “Pacta Sunt Servanda”.

e) The Respondent has failed to comply with the training instructions of the Club during the recovery process of his injury. Participation in training sessions is one of the most fundamental aspects of being a professional footballer and by refusing to attend the sessions and to follow the instructions of the Club’s medical staff, the Player provided the Club with the right to terminate the Contract prematurely without payment of salary. Hence, given the Club’s contractual right to terminate the Contract, the Club equally obtained the right to enforce a lesser sanction by further reducing the Player’s salary as from February 2009 and onwards. Accordingly, the Player’s salary for the said period was justifiably reduced by 50% by the Club.

f) The Player’s demand for compensation in the amount of USD 6450 for exchange rate fluctuations and USD 26’882 for medical costs are to be rejected. The FIFA Decision rightfully dismissed that the Club should be obliged to pay exchange rate fluctuation and accommodation costs. It also follows from Art. 3.3 of the Contract that the Club is only obliged to finance the treatment by specialists in the territory of Ukraine, but not pay for any treatment received abroad.

g) On the basis of the Player’s gross violation of his Employment relationship with the Club for the above-mentioned reasons, the Club is instead entitled to compensation from the Player in accordance with the well-established jurisprudence of the judicial bodies of FIFA and the jurisprudence of CAS. Pursuant to Art. 17 of the FIFA Regulations, the Club is entitled to

compensation for termination of a contract without “just cause”. The amount of compensation to be awarded to the Club can be calculated as follows:

i) Remuneration under existing contract USD 950’000 ii) The loss of earnings (lucrum cessans) USD 1’000’000 iii) Replacement costs USD 500’000 iv) Specificity of sport USD 475’000

Total amount of compensation USD 2’925’000

In addition, the Club should also be granted interest at the rate of 5% p.a. from the day when the breach of contract occurred, i.e. 9 July 2009 and until payment is received.

h) Finally, the Player’s new Club, Olympiakos, is to be held jointly and severally liable for the payment of compensation in accordance with Art. 17 of the FIFA Regulations and the wellestablished CAS jurisprudence in relation hereto. Furthermore, sporting sanctions should be imposed on the Player for his breach of contract.

i) In the unlikely event that the Panel awards compensation against the Club, the Player is obliged to mitigate his losses in accordance with generally accepted contractual principles and well established CAS jurisprudence.

B) The position of the Respondent

45. In his Answer, the Respondent submitted the following requests for relief:

1. To dismiss the appeal of the Appellant with costs.

2. To maintain the decision of FIFA’s Dispute Resolution Chamber and to declare that the Respondent terminated the Employment Contract with just cause.

3. To rule that the Appellant is committed to pay the Respondent the medical costs in the amount of USD 26,882.00 and exchange rate fluctuations in the amount of USD 6,450.00.

4. To condemn the Appellant to a payment of the whole CAS administration costs, the arbitration fees and the costs of the Respondent’s legal representation.

46. In support of his request for relief, the Respondent’s submission, in essence, may be summarized as follows:

Jurisdiction

a) The Respondent submits that FIFA’s Dispute Resolution Chamber had jurisdiction in this matter in accordance with Art. 22 and 24, lit. b), of the FIFA Regulation for the Status and

Transfer of Players (“the FIFA RSTP”). Thus, FIFA is competent for employment-related disputes between a club and a player that have an international dimension, unless an independent arbitration tribunal has been established at national level. The international dimension is represented by the fact that the player concerned is a foreigner in the relevant country. Only disputes between a player who has the nationality of the country to which the Club is affiliated, and the Club, fall under the exclusive jurisdiction of national sports tribunals, if the player registered for a club in the same association, cf. Art. 22, lit. b) of the FIFA RSTP. This is not the case in this matter. As to the question whether an independent arbitration tribunal guaranteeing fair proceedings and respecting the principle of equal representation of players is available in Ukraine, the Respondent first of all submits that Art. 5.2 of the Contract does not constitute an arbitration clause, but rather a clause concerning a choice of law; secondly, the Football Federation of Ukraine Dispute Resolution Committee does not meet the minimum procedural standards for independent arbitration tribunals as stipulated in Art. 22, lit. b), of the FIFA RSTP. Finally, the Appellant failed to designate FIFA as a Respondent to the present proceedings, so any question relating to the jurisdiction of the relevant FIFA decision making body will not be taken into consideration by the CAS. The FIFA decision on jurisdiction must be considered as having become final and binding on the Appellant. A different interpretation would per se constitute a violation of FIFA’s right to be heard.

The merits:

Outstanding payments

b) With respect to the outstanding amount of USD 200’000, the Respondent submitted that the single payment of USD 300,000 for the season 2007-2008 according to clause 2.1, lit. a) of the ADSB is a fixed payment obligation of the club. In support thereof, the Respondent made reference to the particular wording of the clause, which states that the club “makes payment to the player… and that the club pays the sum of money in the amount of 300’000 USD net till the 30 of June 2008”. This wording leaves no room for an individual assessment contingent upon various conditions being met. Independent of the legal certainty of the wording, the Respondent stresses that the total amount of USD 300’000 was due as early as 30 June 2008 and that the amount related to the season 2007/2008, in which season the Club reached the semi-final of the Ukrainian Cup. Moreover, the Player was in the starting line up in the 2007/2008 season more than 18 times. For these reasons, it is not possible for the Club to deprive the Player of the contractually stipulated bonus, which was due for the team’s performance in the previous season. Hence, the amount of USD 200’000 relating to the 2007/2008 season remains unpaid and outstanding.

c) With respect to the outstanding remaining salary, due to the unilateral reduction by the club as of 1 November 2008 and onwards, the Respondent submits that the Club’s decision to reduce the Player’s salary is wrongful and in violation of the Contract and well-established CAS jurisprudence. Firstly, the Respondent argues that the contractual basis does not allow for a unilateral decision to reduce a Player’s salary on the grounds of an allegedly insufficient performance. Thus, an inadequate sporting performance does not represent an acceptable reason for a unilateral withholding or reduction of an agreed remuneration according to wellestablished jurisprudence of FIFA and the CAS. In addition, the Respondent submits that the medical statement from the Academy of Medical Science of the Ukraine is false, as the Player was fully capable of performing his duties as a professional footballer when he returned from a successful surgery/rehabilitation period in Germany in November 2008. Not once, while in Germany for the surgery and rehabilitation, did the Player receive notice from the Club protesting against his operation in Germany and/or requiring that he returns to the Ukraine. During the entire period, he received his contractual salary of USD 33’333 per month. The Player has in no way whatsoever contributed to an aggravation of his injury; on the contrary he returned to Ukraine in good faith to take up his position as a professional footballer. Against this background, the Appellant’s accusations of breach of contract should be dismissed as a fabrication to cover the fact that the Club had lost interest in the Player, when he returned in November 2008 and attempted to make him abandon his contract by reducing his salary and denying him the right to equipment, training etc.

d) With respect to the payment of exchange rate fluctuations and medical costs, the Respondent submits that FIFA’s Dispute Resolution Chamber made an error by refusing to award the Player compensation for these costs. As for the exchange rate fluctuation, the Respondent refers to the Contract itself, which clearly states that the Respondent’s salary is in American dollars (USD). However, the Club made payment in Ukraine currency (HRYWNJA), which – due to the considerable fluctuation – led to a loss for the Player, when he exchanged the local currency into USD. The risk of currency fluctuation is not on the Player’s and therefore the Club should rightfully be condemned to pay USD 6450,52 for the exchange rate fluctuations. As for the medical costs for the operation, in the amount of USD 26’882, the Respondent claims that this amount should also have been awarded as compensation in the FIFA decision. The Player has made reference to article 3.3 of the Contract, which provides him the right to full medical services, including diagnostics treatments, by a specialist. Since, the Club did not have the proper equipment to perform an MRI-scan of his knee, he was forced to be examined and operated upon in Germany. This action was done with the full knowledge and acceptance by the Club and for that reason, the Club should bear the medical costs for the operation abroad, since it was not able to provide one in the Ukraine as stipulated in the Contract.