FC Sportul Studentesc SA v. FC Petrolul Ploiesti, Mares George Alexandru

III. BACKGROUND FACTS

5. Below is a summary of the main relevant facts and allegations based on the parties’ written submissions and evidence adduced at the hearing. Additional facts and allegations may be set out, where relevant, in connection with the legal discussion that follows. While the Sole Arbitrator has considered all the facts, allegations, legal arguments and evidence submitted by the Parties in the present proceedings, it refers in its Award only to the submission and evidence it considers necessary to explain its reasoning.

6. On 29 September 2005, the Player started his sporting career, at the age of 9, when he was registered for the first time as an amateur player with FC Steaua Bucarest.

7. On 2 November 2011, the Player was registered with FC Sportul, as an amateur player.

8. During the 2011/2012 season, the Player was called to play three times with the first team of FC Sportul, in the first division of the Romanian championship (the “Liga 1”). FC Sportul was relegated to the second division (the “Liga 2”) at the end of that season.

9. On 16 May 2012, the Player celebrated his 16th birthday.

10. During the 2012/2013 season, the Player participated in 11 matches with the first team of FC Sportul in Liga 2.

11. On 27 November 2013, FC Sportul was excluded by the RFF from all its competitions.

12. On 2 June 2014, the Player and FC Petrolul concluded an employment agreement whereby the former would join the latter from 5 June 2014 until 30 June 2018 (the “Employment Agreement”).

13. On 11 July 2014, FC Petrolul paid the training compensation to FC Steaua for the period spent by the Player in that club.

14. Still on 11 July 2014, after several previous attempts to contact FC Sportul, FC Petrolul formally requested the bank account details in order to proceed with the payment of the training compensation for the Player.

15. FC Sportul never replied to this request. FC Petrolul therefore relied on the so-called “payment offer procedure and deposit” provided by the Romanian Code of Civil Procedure (Article 1005 et seq.) for those situations in which a creditor refuse to receive a payment, allowing the debtor to discharge its obligations.

16. Also on 11 July 2014, the Executive Committee of the RFF (the “RFF EC”) announced on its website the approval of some amendments to Articles 18 and 27 of the RFF Regulations for Status and Transfer of Players (the “RFF RSTP”), without giving any details on the text of those amendments.

17. On 15 July 2014, FC Petrolul submitted before the RFF a request to register the Employment Agreement (the “Registration Request”).

18. On 1 August 2014, after the “payment offer procedure and deposit” was completed, the Competition Department of the RFF denied the Registration Request.

19. On 5 August 2014, FC Petrolul filed an application for registration of the Player before the CNSL.

20. On 7 October 2014, the CNSL admitted the registration of the Player with FC Petrolul.

21. FC Sportul appealed against this decision before the RFF Appeals Committee (the “RFF AC”).

22. On 31 December 2014, FC Sportul proposed a professional employment agreement to the Player. The proposal was notified to the Player on the same date.

23. On 5 February 2015, FC Sportul was notified of the decision rendered on 6 November 2014 by the RFF AC dismissing its appeal and confirming the registration of the Player with FC Petrolul.

IV. PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT

24. Following the notification of the Appealed Decision, the Appellant filed a Statement of Appeal before the Court of Arbitration for Sport (the “CAS”) pursuant to Article R47 of the Code of Sports-related Arbitration (the “Code”) on 25 February 2015. Within its Statement of Appeal, the Appellant nominated Mr. Cristian Jura, attorney-at-law in Bucharest (Romania), as arbitrator.

25. On 4 March 2015, the CAS Court Office sent a letter to the Parties, informing them on various aspects of the proceedings, in particular about the ten-day time limit granted by Article R51 of the Code to file the Appeal Brief.

26. On 6 March 2015, the Appellant filed its Appeal Brief in accordance with Article R51 of the CAS Code.

27. On 11 March 2015, the First Respondent’s legal counsel (i) informed the CAS Court Office about its mandate, (ii) requested an extension of the time limit to file the Answer until the Appellant has paid its share of the advance of costs, in accordance with Article R55 para. 3 of the Code and (iii) appointed Mr Frans de Weger, attorney-at-law in Zeist (the Netherlands), as arbitrator.

28. On the same day, the CAS Court Office informed the Parties that the Second Respondent was also represented by the First Respondent’s legal counsel, that the time limit to file the answer was set aside and that a new time limit would be set once the Appellant would have paid its share of the advance of costs.

29. On 30 March 2015, following a request from the Appellant to reduce the advance of costs as the Respondents did not agree to pay their share, the CAS Court Office informed the Parties that it was not possible to do so, unless the number of arbitrators was modified.

30. On 3 April 2015, the Appellant requested that a Sole Arbitrator be appointed to decide on the matter and that the advance of costs be reduced accordingly.

31. On 8 April 2015, the Respondents objected that the matter be referred to a Sole Arbitrator.

32. On 13 April 2015, the CAS Court Office informed the Parties that the Deputy President of the CAS Appeals Arbitration Division had decided, considering the circumstances of the case, to submit the arbitration procedure to a Sole Arbitrator, in accordance with Article R50 para. 1 of the Code.

33. On 11 May 2015, following a request by the Respondents, the Appellant filed a resolution of the extraordinary general assembly of shareholders of the clubs dated of the same day, stating that Mrs Claudia Elena Iordachescu was duly authorized to represent the Appellant in front of CAS.

34. On 4 June 2015, and in accordance with Article R56 of the CAS Code, the Parties were informed that, unless they agreed or the President of the Panel ordered otherwise on the basis of exceptional circumstances, they were not authorized to supplement or amend their requests or their arguments, nor to produce new exhibits, nor to specify further evidence on which they intend to rely, after the submission of the appeal brief and of the answer.

35. On 9 June 2015, the Parties were informed that Mr Ivaylo Dermendjiev, attorney-at-law in Sofia, Bulgaria, had been appointed by the President of the CAS Appeals Arbitration Division as Sole Arbitrator to decide the present matter.

36. On 29 May 2015, the Respondents filed their answer.

37. On 25 June 2015, the Parties were informed that the hearing would be held on 13 July 2015 at the CAS Court Office in Lausanne, Switzerland.

38. On 7 July 2015, the Parties signed and returned the Order of Procedure.

39. On 10 July 2015, the Appellant filed an unsolicited written submission addressing several aspects of the answer.

40. On 13 July 2015, a hearing was held in Lausanne, Switzerland.

41. On 16 July 2015, the CAS Court Office sent a letter to the RFF, requesting an answer to the following questions:

- On which date did the 2014 Edition of the RFF-RSTP came into force? How and when were the clubs affiliated to the RFF informed of the modification of these regulations?

- In your opinion, does Article 14 of RFF-RSTP comply with the provisions set out by Articles 39 and 45 of the Lisbon Treaty?

42. On 10 August 2015, the RFF sent a letter to the CAS Court Office, answering the abovementioned questions.

43. On 24 and 25 August 2015, the Respondents, respectively the Appellant, commented on the RFF’s letter of 10 August 2015.

V. THE HEARING

44. A hearing was held on 13 July 2015 at the CAS headquarters in Lausanne (the “Hearing”), in the presence of the Sole Arbitrator. At the outset of the Hearing, the Parties declared that they had no objection with regard to the composition of the arbitral tribunal.

45. The following persons attended the hearing:

• FC Sportul was represented by Mr. Bogdan Lucan, Counsel;

• Mr. Mares George Alexadru and FC Petrolul were represented by Mr. Josep F. Vandellos and Ms. Marina Alexe, Counsel;

46. Mr. Fabien Cagneux, Counsel to the CAS, and Mr. Serge Vittoz, ad hoc clerk, assisted the Sole Arbitrator at the Hearing.

47. At the beginning of the Hearing, the Respondents contested the powers of Mr. Bogdan Lucan to duly represent the Appellant. After having heard the Parties and analysed the evidence provided by the Appellant in this regard, the Sole Arbitrator decided that Mr. Bogdan Lucan had the necessary powers to represent the Appellant.

48. The Parties were afforded the opportunity to present their case, to submit their arguments, and to answer the questions asked by the Panel. The Parties explicitly agreed at the end of the hearing that their right to be heard and to be treated equally in these arbitration proceedings had been fully observed.

VI. THE PARTIES’ SUBMISSIONS — A. FC Sportul

49. FC Sportul’s submissions, in essence, may be summarized as follows:

• The RFF is a private non-profit, independent and non-governmental legal entity.

• RFF regulations are not issued by a public authority or a State body invested with the power to issue generally binding rules. Therefore, the provisions of Article 78 of the Romanian Constitution, according to which “Law is published in the Official Journal of Romania and comes into force three (3) days after the publication or on a subsequent date stipulated in its text” do not apply to regulation issued by the RFF.

• According to Article 41.2 RFF RSTP 2014, this document came into force on 15 July 2014.

• RFF’s affiliate members, players and commissions had been aware of the entry into force of the RFF RSTP 2014 since 11 July 2014, when an announcement in this regard was published on the RFF website.

• The Registration Request, filed by FC Petrolul on 15 July 2014, had to comply with RFF RSTP 2014.

• The time to be taken into consideration with regard to the applicability of the RFF RSTP is the time of the Registration Request, i.e. 15 July 2014, and not the signing of the Employment Agreement, i.e. 2 June 2014.

• The Employment Agreement violates Article 14.2 RFF RSTP 2014. Thus, according to this provision, the club where the player is registered has the right to propose to the player to sign a contract for the provision of football services. The club has the opportunity to exercise this right between 1 July to 31 December of the year preceding the one in which the player turns 19 years old. The Player was to turn 19 years old in 2015. Therefore the reference period is 1 July 2014 to 31 December 2014. Interpreting per a contrario these statutory provisions, the Player could not sign a contract with another football club in that period.

• At the time of the filing of the Registration Request, the Player was already registered with FC Sportul. Therefore, as long as the latter had the right to propose a contract to the Player during the period from July 1 to December 31 2014, he was forbidden to sign a contract with another football club.

• This prohibition was effective on 15 July 2014, date on which the RFF RSTP 2014 entered into force.

- The Employment Agreement shall therefore be invalidated.

B. FC Petrolul Ploiesti SA and Mr. Mares George Alexandru

50. The submissions of the Respondents, in essence, can be summarized as follows:

• The Player, born on 16 May 1996, was registered as an amateur player from 2005 until 2011 with FC Steaua Bucaresti.

• On 2 November 2011, the Player was registered, still as an amateur player, for FC Sportul.

• In the 2011/2012 season, the Player played three (3) times with the first division team of FC Petrolul, in Liga 1. At the end of this season, FC Petrolul was relegated to the Liga 2.

• The Player turned 16 years old on 16 May 2012.

• During the 2012/2013, the First Team of FC Sportul was excluded from all FRF organized competitions.

• The Player concluded a professional football contract with FC Petrolul on 2 June 2014.

• On 11 July 2014, FC Petrolul paid the training compensation to FC Steaua Bucaresti.

• On the same date, after several frustrated attempts to contact FC Sportul, FC Petrolul requested the bank account details of FC Sportul, in order to pay the owed training compensation. As no answer was received, FC Petrolul decided to rely on the so-called “payment offer procedure deposit” provided by Romanian law in order to discharge its obligations with regard to such payment.

• On 11 July 2014, the RFF EC announced on the RFF website the approval of some amendments to Articles 18 and 27 of the RFF RSTP

• On 15 July 2014, FC Petrolul submitted before the RFF the request to register the Employment Agreement.

• On 16 July 2014, the uploaded version of the RFF RSTP website was still the 2013 version.

• Article 14 RFF RSTP, in its editions 2013 and 2014, contains an exclusive right granted to the RFF affiliated clubs to compel their junior players to sign their first professional contract with them. This system allows clubs to block or retain at their own will players during a period of eight years.

• Such a system, besides being immoral, directly violates fundamental rights granted by the Romanian Constitution, in particular its Article 41 which states as follows : The right to work shall not be restricted. Everyone has a free choice of his/her profession, trade or occupation, as well as work place. Article 14 RFF RSTP provides a rule impeding junior amateur players to freely sign a labour contract and pursue his career with the club of his choice constitutes a direct and unjustified obstacle to the fundamental right to work and to choose the place of work.

• The above fundamental rights are further developed by the Romanian Labour Code (Article 3), whose dispositions are compulsory and cannot be abrogated.

• The right of a club to compel a junior player signing his first contract, such as Article 14 RFF RSTP, contravenes likewise Article 4 of the European Convention on Human Rights (ECHR), stating in particular that “No one shall be required to perform forced or compulsory labour”.

• Furthermore, Article 14 RFF RSTP also violates several provisions of the FIFA Regulations on the Status and Transfer of Players (Ed. 2015).

• Lastly, Article 14 RFF RSTP is also contrary to Swiss fundamental values regarding labour law and also contrary to international public order, and therefore, cannot be applied in the context of an arbitration procedure in Switzerland in accordance with Article 19(2) of the Swiss Private Law Act (“PILA”).

• Notwithstanding the above, the Respondents consider that the Employment Agreement was conclude in accordance with the applicable regulations and therefore, validly registered.

• Furthermore, new regulations, such as the RFF RSTP 2014 cannot under any circumstance apply to facts that occurred prior to their entry into force, as for instance, the conclusion of the Employment Agreement on 2 June 2014.

• It is a non-disputed fact by the Appellant that the Player and FC Sportul were not prevented by any regulations or laws to conclude the contract on 2 June 2014. Therefore, it is legitimate that the Respondents rely also on the rules in force at the time of the conclusion of the Employment Agreement in order to register it before the RFF competent department. The registration procedure is not constitutive of any right, but rather a simple declarative step in order to be opposable to third parties, and thus, the registration is to be subject to the same rules as the contract presented for registration. The interpretation of the Appellant would lead to the unacceptable situation of a contract validly and legally concluded not being able to be registered due to a subsequent and unknown regulation at the time of conclusion, generating a state of legal uncertainty.

• That, in conjunction with the fact that the new regulations (RFF RSTP 2014) could not possibly have come into force as they were not published until 21 July 2014, date on which they were firstly made public; and additionally, that the Respondents had a 45 days deadline at their disposal to submit the Employment Agreement for its registration before the RFF, renders the conclusion of the RFF AC with regard to the applicable version of the regulations governing the registration of the Employment Agreement (RFF RSTP 2013) entirely correct.

• Moreover, the Player having been registered with FC Petrolul in the preceding year of his 19th birthday, the right conferred by Article 14 para. 2 RFF RSTP 2013 would belong in any event, exclusively to FC Petrolul.

• The fact that FC Sportul never proposed the Player the conclusion of a contract after his 16th birthday is not disputed. Consequently, it results beyond any doubt that the

Respondents were entitled to conclude the Employment Agreement legally at any time after the deadline expired.

51. In addition, Article 13 para. 5 RFF RSTP 2013 also allows a Player to conclude a contract with a new club if, in the course of a championship, a team is excluded from that competition. FC Sportul was excluded from participating in any organized football competition on 27 November 2013, i.e. during the 2013/2014 season. A season, according to RFF RSTP 2013, lasts from 1 July to 30 June of the following year.

VII. THE PARTIES’ REQUEST FOR RELIEF

52. The Appellant’s requests for relief are the following:

Based on the above mentioned arguments, the Appellant requests that CAS rules as follows:

• To Admit the Appeal against the Decsion no. 86 issued by the Appeal Committeeof the Romanian Football Federation;

• To invalidate the contract no. 713, concluded on June 02, 2014, between Petrolul and Mr. Mares George Alexandru due to the non-compliance with the provisions of Regulations on the Status and Transfer of Football Player, in force since July 15, 2014, Regulations issued by the Romanian Football Federation;

• To invalidate the request made by Petrolul, for legitimating Mr. Mares George Alexandru under the above mentioned contract.

53. The Respondents’ requests for relief are the following: In the light of the above consideration, the RESPONDENT (sic) respectfully requests the Sole Arbitrator: 1) In principal, to fully dismiss the appeal filed by the FC Sportul against the Respondents, confirming that both the contract concluded between the Player and FC Petrolul is valid and accordingly, the registration of the Player with the latter is legal. 2) Accordingly, to ascertain and declare that Article 14 of the FRF-RSTP (Ed. 2013 and Ed. 2014) is null, void and inapplicable, and consequently producing no effects, being contrary to the fundamental legal principles announced in the present brief. 3) In subsidiary, for the case the Sole Arbitrator considers Article 14 of the FRF-RSTP legal and/or applicable, to ascertain that the Appellant club was deprived from the right to compel the Player to sign a contract, in view of the provisions contained in the applicable version of the FRF-RSTP (Ed. 2013). 4) Also in subsidiary, for the case the Sole Arbitrator considers that Article 14 of the FRF-RSTP is legal and/or applicable, and that the applicable Edition of the FRF-RSTP is the 2014, to ascertain that the Appellant club was deprived from the right to compel the Player to sign a contract, in view of the provisions contained in the applicable version of the FRF-RSTP (Ed. 2014). 5) To condemn the Appellant to the payment of the whole CAS administration costs and the Panel fees. 6) To fix a sum, to be paid by the Appellant to the Respondent, in order to pay its defense fees and costs in a sum of 20.000 Euro (10.000 Euro for each of the Respondents).