Renato Moreira Nunes de Queirós v. Khazar Lankaran Football Club

V. JURISDICTION

43. The jurisdiction of CAS, which is not disputed, derives from article 67(1) of the 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.

44. The jurisdiction of CAS is further confirmed by the Order of Procedure duly signed by the parties.

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

VI. A DMISSIBILITY

46. The appeal was filed within the 21 days set by article 67(1) of the FIFA Statutes (2014 edition). The appeal complied with all other requirements of Article R48 of the CAS Code, including the payment of the CAS Court Office fees.

47. It follows that the appeal is admissible.

VII. A PPLICABLE LAW

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

“The Panel shall decide the dispute according to the applicable regulations and, subsidiarily, to 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”.

49. The Sole Arbitrator notes that article 66(2) of the 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 ”.

50. The parties did not make any statements regarding the law or regulations to be applied by CAS. In view of the fact that the Appealed Decision was issued by FIFA and because FIFA

is domiciled in Switzerland, the Sole Arbitrator is satisfied to accept the subsidiary application of Swiss law should the need arise to fill a possible gap in the various regulations of FIFA.

VIII. MERITS — A. The Main Issues

51. As a result of the above, the main issues to be resolved by the Sole Arbitrator are:

i. Is the English Contract valid and binding upon the parties? ii. If so, does the club owe any amounts to the Player? iii. Considering the decision in respect of the English Contract, what amount of outstanding remuneration is the Player entitled to receive from the Club?

i. Is the English Contract valid and binding upon the parties?

52. The Sole Arbitrator observes that the Club, contrary to its position in the proceedings before the FIFA DRC, currently no longer disputes the existence of the English Contract. However, the Club maintains that the English Contract did not serve as an employment contract but merely as a document that was signed by the Club upon the request of the Player, to enable him to obtain a credit from a Portuguese bank.

53. Since the Club unequivocally confirmed that the existence of the English Contract is no longer disputed, the Sole Arbitrator does not find it necessary to address the Player’s statement on the Azeri document on 29 January 2009, by means of which he confirmed that “I don’t have another contract with Kazhar Lankara F.C. [sic]”.

54. The Sole Arbitrator finds that in applying general procedural rules confirmed in CAS jurisprudence, article 8 of the Swiss Civil Code (“Unless the law provides otherwise, the burden of proving the existence of an alleged fact shall rest on the person who derives rights from that fact”), respectively pursuant to article 12(3) of the FIFA Rules governing the procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the “FIFA Procedural Rules”) (“Any party claiming a right on the basis of an alleged fact shall carry the burden of proof”), the burden of proof to establish the existence of the English Contract lies with the Player, whereas, once the afore-mentioned has been established, the burden of proof shifts to the Club to establish that the English Contract did in fact not serve as an employment contract but as a document concluded with the intention to facilitate the Player to obtain a credit from a Portuguese bank and as such does not establish any contractual duties between the parties.

55. Since it is no longer in dispute that the English Contract exists, the Sole Arbitrator is only required to determine the purpose of the English Contract. The Sole Arbitrator finds that, as a result of the divergent views of the parties, it is necessary to decide what was the true intention of the parties when they signed the English Contract and, to this end, it is important to interpret the content of the English Contract in order to decide whether, despite the plain

wording of the English Contract, the true intention of the parties was different from what they declared in the English Contract.

56. The Sole Arbitrator observes that article 18(1) of the Swiss Code of Obligations provides as follows:

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

57. The Sole Arbitrator observes that CAS jurisprudence determines the following in respect of this provision:

“According to the interpretation given to this article by CAS jurisprudence, “(u)nder this provision, the parties’ intention must prevail on the wording of their contract. If this common intention cannot be determined with certainty based on the wording, the judge must examine and interpret the formal agreement between the parties in order to define their subjective common intention (WINIGER, Commentaire Romand – CO I, Basel 2003, n. 18-20 ad Art. 18 CO). This interpretation will first take into account the ordinary sense one can give to the expressions used by the parties and how they could reasonably understand them (WINIGER, op. cit., n. 26 ad art. 18 CO; WIEGAND, Obligationenrecht I, Basel 2003, n. 19 ad art. 18 CO). The behaviour of the parties, their respective interest in the contract and its goal can also be taken into account as complementary means of interpretation (Winiger, op. cit., n. 33, 37 and 134 ad art. 18 CO; WIEGAND, op. cit., n. 29 and 30 ad art. 18 CO)”. (CAS

“By seeking the ordinary sense given to the expressions used by the parties, the real intention of the parties must – according to the jurisprudence of the Swiss Federal Court – be interpreted based on the principle of confidence. This principle implies that a party’s declaration must be given the sense its counterparty can give to it in good faith (‘Treu und Glauben’: WIEGAND, op. cit., n. 35 ad art. 18 CO), based on its wording, the context and the concrete circumstances in which it was expressed (ATF 124 III 165, 168, consid. 3a; 119 II 449, 451, consid. 3a). Unclear declarations or wording in a contract will be interpreted against the party that drafted the contract (ATF 124 III 155, 158, consid. 1b): It is of the responsibility of the author of the contract to choose its formulation with adequate precision (In dubio contra stipulatorem – WINIGER, op. cit., n. 50 ad 18 CO). Moreover, the interpretation must – as far as possible – stick to the legal solutions under Swiss law (ATF 126 III 388, 391, consid. 9d), under which the accrued protection of the weakest party”. (CAS 2005/A/871, pg. 19, para. 4.30)” (CAS 2008/A/1518, §143-144).

58. Against the above-mentioned guidelines and CAS jurisprudence, which is to be taken into account in the case at hand for the purpose of seeking the true intention of the parties, the Sole Arbitrator finds that the wording of the English Contract itself leaves little room for interpretation. Article 2 of the English Contract provides that “[the Club] has agreed to appoint [the Player] as a football professional player of [the Club’s] first team” and article 3 determines that “[the Club] undertakes to remunerate the [Player] with a total amount of US240.000 (two hundred forty thousand US Dollars), against his services of the total period of the contract to be paid as follows: […]”.

59. Although the Sole Arbitrator finds that the content of the English Contract is clear and therefore does not require interpretation in itself, the Sole Arbitrator finds that, in view of the Club’s arguments, it needs to be examined whether the parties attempted to “disguise the true nature of the agreement”, i.e. whether, despite the clear wording of the English Contract, the parties did not intend to conclude an employment contract, but rather concluded such contract with the intention to enable the Player to obtain a loan from a Portuguese bank.

60. After a detailed scrutiny of the arguments of both parties and of the evidence submitted – and regardless of the fact that the Club would possibly have violated different legal duties by agreeing to conclude a fake employment contract with the Player, while being aware tha t the sole reason to conclude such fake contract was to enable the Player to obtain a credit from a Portuguese bank – the Sole Arbitrator is not convinced that the parties concluded the English Contract for this reason.

61. In coming to this conclusion, the Sole Arbitrator deems it important that the Club did not provide any evidence from which it derives that the Player made such request to the Club and that the Player denies such allegation.

62. The Sole Arbitrator finds that the testimony of Ms Santos was credible in the sense that the Portuguese bank needed to know the providence of the amounts deposited in a foreign currency on the Player’s account and that this was the reason why the bank required the Player to provide it with his employment contract, which was subsequently sent to the bank by the Club. Furthermore, Ms Santos testified that the Player did not apply for a credit from the bank during his period with the Club.

63. Finally, the Sole Arbitrator observes that it appears that the parties abided by the English Contract rather than the Azeri Contract since it is undisputed that the employment relation came to an end at the end of the 2008/2009 season, which is in accordance with the English Contract. Although the Club alleges that the Azeri Contract was mutually terminated at the end of the 2008/2009, the Sole Arbitrator observes that this was disputed by the Player and that the Club did not provide evidence of such mutually agreed termination.

64. In view of the above, the Sole Arbitrator finds that the Club’s explanation as to the parties’ intention with the conclusion of the English Contract must be dismissed. The Sole Arbitrator will however examine the additional arguments of the Club, on the basis of which the Club argues that the English Contract was not valid, below.

65. As to the Club’s argument that the English Contract was intentionally backdated to ensure the invalidity thereof because “according to the common legal principle, in case of existence of two contracts between the same parties, the later one is considered as a valid. [sic]”, the Sole Arbitrator finds that this argument must be dismissed. The Sole Arbitrator is not aware of the existence of such “common legal principle”. To the contrary, the Sole Arbitrator finds that, in general, a contract is not automatically invalidated for the mere reason that another contract is concluded on a later date, unless this is specifically determined in the latter contract.

66. Furthermore, in respect of the Club’s argument that the English Contract is not valid because it did not contain an official stamp of the Club, the Sole Arbitrator finds that this argument must be dismissed because the Club failed to establish that this was a mandatory legal requirement for the validity of the contract.

67. As to the Club’s argument that the English Contract is not valid because it was not registered with the AFFA, the Sole Arbitrator finds that this argument must be dismissed because it is the responsibility of the Club to register such contract with the AFFA, for if the Club’s failure to register a contract with the national federation would necessarily entail the invalidity of the contract, a club would have full unilateral discretion to decide whether to validate the contract or not.

68. Finally, regarding the Club’s argument that it is not logical to conclude a contract for one season following the transfer of the Player to the Club, the Sole Arbitrator finds that this argument must be dismissed because the Club failed to established that it is a mandatory requirement that the term of a contract shall be longer than one season. In addition, the Sole Arbitrator is not convinced that it is illogical for the Player and the Club to conclude an employment contract for one season only, nor did the Club established any such custom.

69. Consequently, the Sole Arbitrator finds that the English Contract is valid and binding upon the parties.

ii. If so, does the club owe any amounts to the Player?

70. Since the argument of the Club that it did not have to make any payments on the basis of the English Contract, but only on the basis of the Azeri Contract, was denied and because the English Contract was found to be binding upon the parties, the Sole Arbitrator decides that the Club should have paid the Player the amounts set out in the English Contract.

iii. Considering the decision in respect of the English Contract, what amount of outstanding remuneration is the Player entitled to receive from the Club?

71. The Sole Arbitrator observes that the Player solely bases his claim of USD 80,000 on the English Contract, i.e. the Player claims that his salary of USD 10,000 per month over the months of April, May and June 2009 remained unpaid and that he did not receive the amount of USD 50,000 due in April 2009.

72. The Club does not deny not having paid the above-mentioned amounts, but rather argues that it did not have to make any payments on the basis of the English Contract, but only on the basis of the Azeri Contract.

73. The Club maintains that it paid the Player AZN (Azerbaijani Manat) 4,000 per month (which equals the amount of USD 4,932 according to the Club), in accordance with the Azeri Contract.

74. The Sole Arbitrator observes that the Player neither disputed having been paid these amounts in Azerbaijani Manat, nor that the exchange rate was incorrect.

75. Since the main argument of the Club has already been dismissed supra, the Sole Arbitrator finds that, in the absence of any additional arguments of the Club justifying the lack of payment, the Player is in principle entitled to receive the amount of USD 80,000 from the Club as outstanding remuneration.

76. The Sole Arbitrator noted that the Player claims the amount of USD 80,000, regardless of the fact that he was paid a monthly amount in Azerbaijani Manat. As such, the Player was apparently of the view that he was entitled to remuneration on the basis of the English Contract as well as on the basis of the Azeri Contract.

77. The Sole Arbitrator observes that the Club, in its requests for relief, requested the appeal to be dismissed. However, the Club did not put forward an alternative request for relief pursuant to which the amounts paid in accordance with the Azeri Contract shall be deducted from the overdue payables on the basis of the English Contract.

78. Regardless of the fact that the Club did not put forward such argument, the Sole Arbitrator deems it necessary to verify this issue ex officio.

79. The Sole Arbitrator observes that neither the English Contract nor the Azeri Contract is clear in determining whether the Player is entitled to the remuneration set out in both agreements, or whether the remuneration set out in the Azeri Contract shall be considered included in the remuneration pursuant to the English Contract, or vice versa.

80. Observing that the Club did not raise any objections in this respect during the proceedings before FIFA and CAS, nor when the Player, through the Portuguese Player’s Union, notified the Club in writing regarding the overdue payables (on 27 May, 8 June and 2 July 2009), nor when the Player notified the Club in writing himself on 20 October 2009, the Sole Arbitrator finds that the Player is entitled to the remuneration set out in the English Contract and in the Azeri Contract as the Club would surely have raised such argument if this would have been the intention of the parties, however, it remained silent.

81. Consequently, the Sole Arbitrator finds that the remuneration paid to the Player by the Club pursuant to the Azeri Contract shall not be deducted from the remuneration due pursua nt to the English Contract. As such, the Sole Arbitrator finds that the Player is entitled to the amount of USD 80,000.

82. In view of the fact that the Player claimed “interest at a rate of 5%”, without however mentioning as from which date such interest shall accrue, the Sole Arbitrator is required to examine this issue.

83. Since the English Contract does not determine on which day of the month the Player’s salary was to be paid, the Sole Arbitrator finds that interest shall accrue as from the first day of the month following the month in which the payment fell due.

84. Consequently, the Sole Arbitrator finds that the Club shall pay outstanding remuneration to the Player in the amount of USD 80,000, with interest at a rate of 5% per annum in accordance with the scheme set out below:

– USD 50,000 as from 1 May 2009 until the date of effective payment; – USD 10,000 as from 1 May 2009 until the date of effective payment; – USD 10,000 as from 1 June 2009 until the date of effective payment; – USD 10,000 as from 1 July 2009 until the date of effective payment.

B. Conclusion

85. Based on the foregoing, and after taking into due consideration all the evidence produced and all arguments made, the Sole Arbitrator finds that:

i. The English Contract is valid and binding upon the parties. ii. The Club shall pay outstanding remuneration to the Player in the amount of USD 80,000, with interest at a rate of 5% per annum in accordance with the scheme above.

86. Any further claims or requests for relief are dismissed.