Hajer FC Al-Hasa v. Arsid Kruja

VI. JURISDICTION OF THE CAS

47. Article R47 of the Code provides as follows:

“An appeal against the decision of a federation, association or sports-related body may be filed with the CAS if the statutes or regulations of the said body so provide or if the parties have concluded a specific arbitration

agreement and if the Appellant has exhausted the legal remedies available to him prior to the appeal, in accordance with the statutes or regulations of that body”.

48. The jurisdiction of the CAS, which is not disputed by either of the Parties and was confirmed by their signatures of the Order of Procedure, derives from Article 58 of the FIFA Statutes (edition 2016, in force as of 26 April 2016).The provisions of the FIFA Statutes that are relevant to that effect in these proceedings are the following:

Article 57 “Court of Arbitration for Sport (CAS)”: “1. FIFA recognises the independent Court of Arbitration for Sport (CAS) with headquarters in Lausanne (Switzerland) to resolve disputes between FIFA, member associations, confederations, leagues, clubs, players, officials, intermediaries and licensed match agents. 2. 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”.

Article 58 “Jurisdiction of CAS”: “1. Appeals against final decisions passed by FIFA’s legal bodies and against decisions passed by confederations, member associations or leagues shall be lodged with CAS within 21 days of notification of the decision in question. 2. Recourse may only be made to CAS after all other internal channels have been exhausted. 3. CAS, however, does not deal with appeals arising from: a) violations of the Laws of the Game; b) suspensions of up to four matches or up to three months (with the exception of doping decisions); c) decisions against which an appeal to an independent and duly constituted arbitration tribunal recognised under the rules of an association or confederation may be made. 4. The appeal shall not have a suspensive effect. The appropriate FIFA body or, alternatively, CAS may order the appeal to have a suspensive effect. […]”.

49. It follows that the CAS has jurisdiction to decide this dispute.

VII. ADMISSIBILITY

50. Article R49 of the Code provides as follows:

“In the absence of a time limit set in the statutes or regulations of the federation, association or sports-related body concerned, or of in a previous agreement, the time limit for appeal shall be twenty-one days from the receipt of the decision appealed against”.

51. The grounds of the Appealed Decision were notified to the Parties on 23 March 2017. The statement of appeal was filed on 13 April 2017 and, thus, within the deadline of twenty-one days set in Article R49 of the Code and in Article 58.1 of the FIFA Statutes referred to in the Appealed Decision itself.

52. No further recourse against the Appealed Decision is available within the structure of FIFA. Consequently and in perfect accordance with the aforementioned Article 47 of the Code, the internal legal remedies have been exhausted.

53. Accordingly, the appeal filed by the Club is admissible.

VIII. APPLICABLE LAW

54. Article R58 of the Code provides as follows:

“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 that the Panel deems appropriate. In the latter case, the Panel shall give reasons for its decision”.

55. The matter at stake relates to an appeal against a FIFA decision and reference must hence be made to Article 57.2 of the FIFA Statutes which provides that:

“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”.

56. In the Employment Contract, the Club and the Player made specific references to the FIFA regulations and to the FIFA Regulations on the Status and Transfer of Players (“RSTP”) in particular.

57. The Parties expressly agreed in their respective submissions that, for the resolution of the dispute, the Sole Arbitrator shall apply primarily the FIFA RSTP.

58. Therefore, the FIFA rules and regulations shall be applied primarily. Swiss law applies subsidiarily to the merits of the dispute.

59. In the present case, the “applicable regulations” for the purposes of Article R58 of the Code are, indisputably, the FIFA’s regulations (in the edition applicable ratione temporis to the facts of the case), which must be primarily applied, because the appeal is directed against a decision issued by FIFA, which was passed applying FIFA’s rules and regulations. More precisely, the Sole Arbitrator agrees with the DRC that the regulations concerned are particularly the RSTP, edition 2015 (entered into force on 25 September 2015), considering that the matter was brought to FIFA on 2 December 2015.

60. As the present dispute concerns in essence employment matters regarding the termination of the Employment Contract and its consequences, such as compensation, the following particular rules of the RSTP are applicable:

“Article 13: Respect of contract

A contract between a professional and a club may only be terminated upon expiry of the term of the contract or by mutual agreement.

Article 14: Terminating a contract with just cause A contract may be terminated by either party without consequences of any kind (either payment of compensation or imposition of sporting sanctions) where there is just cause.

Article 16: Restriction on terminating a contract during the season A contract cannot be unilaterally terminated during the course of a season.

Article 17: Consequences of terminating a contract without just cause 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 Annexe 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. […]”.

IX. THE MERITS OF THE APPEAL

61. The core principle applicable by CAS in appeals proceedings in terms of the scope of review is the de novo principle resulting from Article R57 of the Code. According to Article R57 of the Code, the Sole Arbitrator has full power to review the facts and the law of the case. Furthermore, the Sole Arbitrator may issue a new decision which replaces the decision challenged or may annul the decision and refer the case back to the previous instance.

62. The Sole Arbitrator is of the opinion that the default of a party during a FIFA procedure should not be interpreted as an acceptance of the counterparty’s factual allegations during the relevant FIFA procedure. In consequence, the facts brought forward by the Respondent during the FIFA proceeding cannot be qualified as undisputed. Rather, the undisputed and disputed facts have to be distinguished based on the Parties’ submissions.

63. Based on the Parties’ submissions, the issues for determination are the following:

a) Was the termination of the Employment Contract made by the Player with just cause? b) Depending on the answer to (a) above, what are the legal consequences of the termination of the Employment Contract with just cause? c) Depending on the answers to (a) and (b) above, were outstanding amounts and compensation for breach of contract determined correctly in the Appealed Decision?

A. Was the termination of the Employment Contract by the Player with just cause?

64. As a preliminary issue, prior to deciding on the termination of the Employment Contract with or without just cause, the Sole Arbitrator will first address the question as to whether a legally binding written employment contract had been concluded by and between the Appellant and the Respondent. In this context, the Sole Arbitrator recalls that in order for an employment contract to be considered as valid and binding, apart from containing the essentialia negotii of an employment contract, such as the parties to the contract and their role, the duration of the employment relationship, the remuneration, it should bear the signature of both the employer and the employee.

65. Although not specifically spelled out, the Appellant raises some doubts about the validity of the Employment Contract by pointing to the fact that it was actually signed by the head coach of the Club without the authorization of the Club’s official representatives. Further, the Appellant states that as a result of the immediate transfer of the Player on loan to Flamurtari and then to Laci, “the Employment Contract between the Club and the Player never entered into force …” (emphasis put by the Appellant).

66. In its initial part, the Employment Contract names Mr Sami Mohammed Al Mulhum in his capacity of President of the Club as its representative. Mr Sami Mohammed Al Mulhum is further specified under the position “Hajer Club Chairman” as the signatory for the Club on the last page of the Employment Contract containing the signatures of the parties to it.

67. The Sole Arbitrator is not in a position to explore who signed the contract on behalf of the Club or to adjudicate upon alleged forged signature (albeit such is not strictly claimed). It is up to the party invoking a forgery of a signature to initiate proceedings before competent penal authorities or to request expert opinion. Such steps did not appear to have been taken by the Club as result of which the Sole Arbitrator must presume the authenticity of the signature until evidence to the contrary is presented.

68. Even if there is a manifest or evident divergence of signatures (for which the Sole Arbitrator again does not feel to be in a position to rule upon), the Sole Arbitrator is satisfied that in this particular case, even if not originally signed by the legal representative, the Employment Contract was de facto confirmed by the Club. First, the Appellant admits that the representatives of the Club allegedly still during the training camp in Turkey discovered that the head coach had signed the Employment Contract who then reassured the president of the Club that it would not be a problem to place the Player immediately in Albania. Second, it is not in dispute that, on two occasions, the Club entered into transfer loan agreements with respect to the Player (the Flamurtari Loan Contract and the Laci Loan Contract) which were indisputably signed on behalf of the Appellant by Mr Sami Mohammed Al Mulhim, President of the Club. In the recitals, these agreements make specific reference to the Employment Contract concluded between the Club and the Player for a term of three years and indicate that “Hajer is the owner of the Players’ Card of the Player”. Third, the Club recorded the Employment Contract in the Transfer Matching System maintained by FIFA and designated to make available information on international player transfers (the “TMS”).

69. Therefore, in the circumstances, it appears to be irrelevant who exactly signed the Employment Contract on behalf of the Club.

70. Further, in the Sole Arbitrator’s view, the undisputed fact that the Player never entered into Saudi Arabia as he was transferred on loan to Albanian clubs does not affect the entering into force, the operation or the validity of the Employment Contract which remained binding for the Parties. Therefore, the Sole Arbitrator concludes that the Employment Contract must be considered as valid and binding upon the Parties.

71. Having established this, the Sole Arbitrator will now turn to the core issue in the present case.

72. The central issue to be determined in the present matter is which party was in breach of the Employment Contract and thus whether the Player unilaterally terminated the Employment Contract without just cause or, in the opposite, whether the Club breached the Employment Contract, thus entitling the Player to unilaterally terminate the contract with just cause.

73. The Sole Arbitrator has to establish if the unilateral termination of the Employment Contract by the Player was eventually done with or without just cause. The RSTP do not provide the definition of “just cause”.

74. The Commentary on the RSTP states the following with regard to the concept of just cause: “The definition of just cause and whether just cause exists shall be established in accordance with the merits of each particular case. Behaviour that is in violation of the terms of an employment contract still cannot justify the termination of a contract for just cause. However, should the violation persist over a long time or should many violations be cumulated over a certain period of time, then it is most probable that the breach of contract has reached such a level that the party suffering the breach is entitled to terminate the contract unilaterally …”. (RSTP Commentary, N2 to Article 14).

75. The CAS has had the opportunity of specifying in its jurisprudence that while the FIFA rules do not define the concept of “just cause”, reference should be made to the law subsidiary

76. Article 337 (2) of the Swiss Code of Obligations (“Swiss CO”, references to Swiss CO below are according to the translation by the Swiss-American Chamber of Commerce) provides that “a valid reason is considered to be, in particular, any circumstance under which, if existing, the terminating party can in good faith not to be expected to continue the employment relationship”. The concept of “just cause” as defined in Article 14 RSTP must therefore be likened to that of “valid reason” within the meaning of Article 337 (2) Swiss CO.

77. It is generally accepted in most legal systems that an employment contract which has been concluded for a fixed term can only be unilaterally terminated prior to expiry of the term of the contract if there is good cause or a valid reason. This would be any situation, in the presence of which the party terminating the contract cannot in good faith be expected to continue the employment relationship.

78. For example, a grave breach of duty by the employee or the employer would constitute a good cause. The existence of a valid reason may be admitted when the essential conditions, of an objective or personal nature, under which the contract was concluded, are no longer present. Only a breach which is of a certain severity justifies termination of a contract. In principle, the breach is considered to be of a certain severity when there are objective criteria which do not reasonably permit to expect a continuation of the employment relationship between the Parties such as serious breach of confidence. According to the practice of the Swiss Federal Tribunal, an employment contract may be terminated immediately for good reason when the main terms and conditions, under which it was entered into are no longer implemented and the party terminating the employment relationship cannot be required to continue it (ATF 101 Ia 545; Judgment 4C.240/2000of 2 February 2002; Judgment 4C.67/2003 of 5 May 2003; WYLER R., Droit du travail, Berne 2002, p. 364; TERCIER P., Les contrats spéciaux, Zurich 2003, N. 3402, p. 496).

79. According to CAS case law, only a “material breach” of a contract can possibly be considered as “just cause” for termination without consequences of any kind (CAS 2006/A/1062; CAS material breach occurs “when the main terms and conditions, under which it was entered into are no longer implemented. The circumstances must be such that, according to the rule of good faith, the party terminating the employment relationship cannot be required to continue it” (CAS 2013/A/3091, 3092 & 3093; CAS

80. Likewise, in the case CAS 2013/A/3237, the concept of “just cause” has been identified as “the prevailing situation, in the presence of which the injured party cannot in good faith be expected to continue the employment relationship …. Moreover, the unilateral termination of the contract is accepted when the essential conditions under which the contract was concluded are no longer present”.

81. Applying the above principles, the Sole Arbitrator will go on to establish if, in light of the particular circumstances of the case, the Player had just cause to unilaterally terminate the Employment Contract. In performing this exercise the Sole Arbitrator has to establish in particular whether the Club committed any of the alleged contractual breaches, as claimed by the Player, and whether any of these breaches justified his termination.

a) Did the Club default on payments due to the Player for the months of July-August 2015 and January-May2016?

82. In the opinion of the Sole Arbitrator, the issue if the salary of June 2015 was due by the Club, although payment of this salary was initially requested by the Player, has become moot since it was not claimed before FIFA DRC.

83. It is not in dispute that the Player’s salaries of July and August 2015 were not paid by the Club. First of all, the Sole Arbitrator observes that the Club did not contest that a consecutive nonpayment of monthly salaries would in principle be a sufficient legal basis for termination of the Employment Contract with just cause. Rather, the Club’s position on this point is that it was Laci and not the Appellant which was responsible for the July and August 2015 salaries. If this was not the case, the Appellant submits that the Player never offered or rendered his

services to the Club for these two months as he had always wanted to keep playing in his country of origin.

84. The Appellant maintains that the Player entered in a de facto employment relationship with Laci already in July 2015 when he started training with the latter. Laci sporting season 2015/2016 started in early July 2015 with matches from the first leg of the Europa League qualifying stage. On the other hand, the first Laci’s game in the Albanian Championship was scheduled for 21 August 2015.

85. The Sole Arbitrator observes that the Laci Loan Contract was signed on 30 August 2015 between the Appellant, the Player and Laci. It is very unlikely that the Player, not having been registered for Laci yet, participated in these first games of the club referred to by the Appellant. Therefore, the Player was not part (at least formally) of Laci as of the official start of season 2015/2016 and he could have joined and played for the club only from 30 August 2015 on. In addition, as provided in the Laci Loan Contract, upon and by signing the agreement, Laci will “have the right to instruct and receive the issuance of the ITC for the Player, by Hajer and SAFF” (article 2.4). Therefore, it is not established that the Player provided its sporting services to Laci before signing of the Laci Loan Contract (30 August 2015). The fact alleged by the Appellant that the Player trained with Laci before signing of the Laci Loan Contract is, on one hand, not corroborated by any evidence, and on the other hand, even if true, it does not automatically mean that Laci became obliged to pay to the Player salaries for the alleged training period (July - August 2015).

86. The Sole Arbitrator further recalls here that, according to the Laci Loan Contract, the latter was “signed for a specific period of time, which starts on 30 August 2015 and ends on 31 December 2015” (article 1.4). During the term of the Laci Loan Contract, “the Club [Laci] is obliged to carry out all the expense relative to the monthly salaries of the Player, as it will be agreed in the individual employment contract between the parties” (article 2.5). Accordingly, “the Player will have the right to receive remuneration from the contractual relationship that he will have with the Club [Laci]” (article 4.1).On the other side, “the Player sets free of any obligation Hajer, for all the expenses relative to the monthly salaries, sporting insurance, neither medical care, for the whole duration of this agreement” (article 4.2). The Laci Loan Contract does not provide retroactively for any financial obligations of Laci towards the Player (other than the salaries for the period of the loan itself) that might have purportedly arisen before the start of the loan. Neither does so the individual employment contract entered into between the Player and Laci and valid from 30 August until 31 December 2015.

87. The Sole Arbitrator notes that the headers and footers of the Laci Loan Contract bear the logo and the contact details of the Appellant. The Sole Arbitrator further observes that the wording of the Flamurtari Loan Contract and the Laci Loan Contract is literally the same. As a consequence, the Sole Arbitrator infers that the terms of the Laci Loan Contract were proposed by the Appellant. Despite that the Laci Loan Contract is quite clear as to its term and payment obligations, the Sole Arbitrator may also resort to alternate means of interpretation, pursuant to which, in case of doubt, the contract must be interpreted against the party which drafted it(in dubio contra proferentem). Had the Appellant wished to relieve itself from payment of Player’s salaries of July and August 2015 (allegedly due by Laci for reason that the contractual relationship between Laci and the Player had effectively initiated in July

2015), it would (or must) have undoubtedly included a wording to that effect in the Laci Loan Contract. Therefore, it cannot be successfully pleaded by the Appellant that Laci was responsible for Player’s salaries for July and August 2015.

88. With regard to the alternative defence of the Appellant, the latter maintains that the Respondent was not supposed to enter Saudi Arabia between the expiry of the Flamurtari Loan Contract and the commencement of the Laci Loan Contract. Therefore, it must be presumed that the Club tacitly agreed to the Player not joining the Club until the process of transferring him on further loan from Flamurtari to Laci was completed. Therefore, it could not have been reasonably expected that the Player would return to the Club after the expiry of the Flamurtari Loan Contract just to be transferred on loan soon after that to Laci. The Club did not provide any evidence that the Player would have expressly or implicitly waived any right to the salaries for July and August 2015.

89. Therefore, in light of the particular contractual provisions at issue, the Sole Arbitrator is satisfied that the Parties remained bound by the Employment Contract in the interval between the end of the Flamurtari Loan Contract and the start of the Laci Loan Contract (i.e. 30 June 2015 – 30 August 2015). Accordingly, the Club was obliged for payment of the Player’s salaries of July and August 2015 pursuant to the terms of the Employment Contract.

90. With regard to the salaries of January – May 2016, the non-payment of which is not disputed, the Appellant advances the arguments that the Player was not entitled to receive them since (i) he never entered into Saudi Arabia or intended to do so and (ii) on 14 January 2016, i.e. only fourteen days after the expiry of the Laci Loan Contract, the Player made it clear that his intention was not to join the Club.

91. The Sole Arbitrator takes note of CAS case law, according to which, if the player does not provide the club with his working capacity, this constitutes a serious breach of duty which can justify unilateral termination of the contract, for example if the player does not even report

92. Indeed, the absence of a player without the authorisation of the club can generally constitute a just cause for a club to terminate the contract. However, in this particular case, following the expiry of the Laci Loan Contract, the Club neither contacted the Player requesting explanation as to his absence from work, nor it sent any letter, warning notice or a contract termination notification explaining that the contract was terminated due to the Player’s long absence. In addition, by not providing the Player with documents necessary to obtain visa to enter Saudi Arabia, the Club itself prevented the Player from rendering his services to the Club (the issue with the visa requirement will be separately discussed in more detail below).

93. It is not sufficiently clear to the Sole Arbitrator why the Appellant did not contact the Player after the expiry of the Laci Loan Contract considering that “the Player is obliged to return immediately to Hajer, after the lapse of the term of this agreement” (article 4.3 of the Laci Loan Contract). Likewise, Laci undertook to facilitate the return of the Player to the Club (article 2.7 of the Laci Loan Contract). The explanation that the Club inferred from the Player’s behaviour (i.e. that he simply disappeared without any explanations) that he would not be willing to travel to

Saudi Arabia is not convincing. The Club neither attempted any negotiations to terminate the Employment Contract, nor sent a contract termination notification which it should have done in order to release itself from the contractual relationship had it believed that Player was in breach.

94. The Sole Arbitrator disagrees with the Appellant’s assertions claiming that the Player acted in bad faith, considering that his non-return to Saudi Arabia after the expiry of the Laci Loan Contract could be explained by his lack of desire to complete the Employment Contract or to terminate it.

95. Moreover, this opinion is also reinforced by the extensive correspondence of the Player evidencing his contemporaneous intention regarding the continuation of the Employment Contract. Indeed, apart from claiming payment of outstanding salaries, the Player repeatedly expressed in his various correspondences his will to continue to play for the Respondent upon providing him with entry visa.

96. In his letter to the Club dated 11 November 2015, the Player clearly indicated that he did not intend to renew the Laci Loan Contract and expressed his will to respect the Employment Contract by requesting the Club to provide him with necessary documents for obtaining visa. Thereafter, having received no response, on 2 December 2015, the Player wrote to FIFA and to SAFF, notifying the federations of his intent to respect the Employment Contract and of his request to receive documents necessary for visa. At some point of time the claim lodged with FIFA on 2 December 2015 must have been communicated to the Club in order to file a reply. On 4 April 2016, the Player requested the Club to provide to him the necessary documents to come to Saudi Arabia and to be reintegrated in the training process of the team. On 25 April 2016, for a consecutive time the Player requested the Club to be provided with documents necessary to obtain visa and to be reintegrated with the team and warned that failure of which would force him to bring a claim before FIFA. On 30 May 2016, having received no replies to his previous communications, the Player sent a formal notice for termination of the Employment Contract for failure of the Club to settle outstanding payments and to provide document necessary for visa and to reintegrate him in the team. All of the correspondence remained unanswered by the Club.

97. In the meantime, on 14 January 2016, the Player wrote to FIFA in response to a letter of the latter providing copy of the relevant contract and contact details for correspondence. The Player’s letter of 14 January 2016 was apparently primarily intended to complete the claim of 2 December 2016. In addition, the Player sought from FIFA “permission to training with any club” explaining that he had not received any communication from the Club and that as a professional player he needed to train. On 10 February 2016, the Player reiterated its request to be permitted to train with any club. The Sole Arbitrator is not persuaded that the wording of the letters dated 14 January 2016 and 10 February 2016 imply that the Player wished to terminate the Employment Contract. To the extent that the Player sought support from FIFA and SAFF, it was only with respect to a permission to train with and not to play for, to join or to be provisionally registered with another club. On the other hand, undoubtedly, any preparation performed individually by a player on his own would be less productive than a training process with a club, which as a result may adversely affect the future career and

development of the player. In that regard, it was reasonable from the Player to seek options to maintain and develop his sporting abilities and form. With no communication received from the Club, the Player’s concerns for the impossibility to train seem credible and the request to FIFA in that respect was justified. In any way, such permission was not granted, at least no proof to the contrary was provided. Moreover, there is no evidence whatsoever that the Respondent’s main target was to terminate the Employment Contract in order to join a new football club team or for other reason.

98. Therefore, the Sole Arbitrator does not consider that, by sending of the communication of 14 January 2016, the Player sought to find a way to free himself from the employment relationship and to terminate the Employment Contract.

99. The Appellant also claims that the Player’s termination notice of 30 May 2016 was in bad faith filed too late almost 5 months after the expiry of the Laci Loan Contract, thus allowing the Player to claim unpaid salaries the amount of which could have otherwise been lesser had the Employment Contract been terminated earlier.

100. The Sole Arbitrator notes that, except for prescription periods, there is no specific rule providing when at the latest the aggrieved party must file a termination notice following the breach of contract. Although just cause in cases regarding delayed salaries is determined on a case by case basis, there is CAS jurisprudence to the effect that a party that has not been paid its salary for more than three months generally has just cause to terminate the contract (CAS 2014/A/3584, at paragraph 87). The Sole Arbitrator is satisfied that the Player, having sent the default notice of 11 November 2015, was obviously awaiting the position of the Club before putting an end to the contractual relationship. After it became evident that the Club would not respond to the Player’s requests (the last one from 25 April 2016, containing a warning for termination), he ultimately terminated the Employment Contract on 30 May 2016. In addition, the Player was also exchanging correspondence with FIFA and SAFF. Under these circumstances, the Player cannot be accused of bad faith, even if he could have sent the termination notice earlier. In view of the foregoing, the Sole Arbitrator finds that the termination notice was not filed lately in bad faith.

101. On a side note, from practical point of view, it would be irrelevant as a financial consequence if the Appellant was ordered to pay salaries of January - May 2016 or the same amounts would have been awarded to the Player as compensation on the basis of the residual value of the Employment Contract including the amounts pertaining to not received salaries of January - May 2016.By way of example, if the Player had terminated the Employment Contract with just cause on 30 January 2016 (instead on 30 May 2016) he would be entitled to the salary of January 2016, while the value of the contract for the period February - May 2016 would have been included in the total amount of compensation for breach of contract.

102. Accordingly, the Sole Arbitrator finds that the Club owed to the Player the salaries for the months which fell due before the termination of the Employment Contract. Failure to pay due salaries under a binding contract for a continuous period of time constitutes a serious breach of contract.

103. In relation with the present matter, the Sole Arbitrator consulted other CAS case-law which has also considered that continuous breaches by the employer of its duty to comply with its financial commitments towards the player can constitute just cause for termination.

104. In the landmark case CAS 2006/A/1180, the panel ruled: “The non-payment or late payment of remuneration by an employer does in principle - and particularly if repeated as in the present case - constitute “just cause” for termination of the contract (ATF 2 February 2001,4C.240/2000 no. 3 b aa; CAS 2003/O/540 & 541, non-public award of 6 August 2004); for the employer’s payment obligation is his main obligation towards the employee. If, therefore, he fails to meet this obligation, the employee can, as a rule, no longer be expected to continue to be bound by the contract in the future. Whether the employee falls into financial difficulty by reason of the late or non-payment, is irrelevant. The only relevant criteria is whether the breach of obligation is such that it causes the confidence, which the one party has in future performance in accordance with the contract, to be lost. This is the case when there is a substantial breach of a main obligation such as the employer’s obligation to pay the employee. However, the latter applies only subject to two conditions. Firstly, the amount paid late by the employer may not be “insubstantial” or completely secondary. Secondly, a prerequisite for terminating the contract because of late payment is that the employee must have given a warning. In other words, the employee must have drawn the employer’s attention to the fact that his conduct is not in accordance with the contract (see also CAS 2005/A/893; CAS 2006/A/1100, marg. no. 8.2.5 et seq.)”.

105. In light of the above, the Sole Arbitrator holds that non-payment of salaries in the present case is not insubstantial and thus the “substantiality” condition for terminating the Employment Contract with just cause is met.

106. As regards the second prerequisite, the Sole Arbitrator recalls that, as the CAS jurisprudence has declared, “for a party to be allowed to validly terminate an employment contract, it must have warned the other party, in order for the latter to have had the chance, if it deemed that the complaint to be legitimate, to comply with its obligations” (CAS 2013/A/3091-3093). According to the same line of reasoning, CAS jurisprudence has consistently held that “a party will only be able to establish a just cause to terminate the employment contract if it had previously warned the other party of its unacceptable conduct or

107. Therefore, before proceeding with the termination, it is advisable, depending on the circumstances, for the aggrieved party to send a notice to the breaching party asking it to desist its wrongful acts. Indeed, the Sole Arbitrator in CAS 2014/A/3460 held (at para. 63) that “[a]lthough the need to send notices is not mandatory in all cases and is established on a case by case basis, CAS Sole Arbitrators have regarded notices as a vital step which could possibly have played a role in bringing an end to an unexplained breach or series of breaches, particularly where the breach or breaches in question has not yet reached a fundamentally unacceptable level and/or unduly prejudiced the non-breaching party to the extent that the latter cannot be reasonably expected to continue the contract”.

108. In denying the possibility for the Player to enforce his claim for payment, the Appellant cannot contend that no proper notice had been given and that therefore the Player terminated the Employment Contract without just cause.

109. The Appellant disputes to have received the default notice of 11 November 2015 by which the Player requested payment of the salaries of June - August 2015 and to be provided with

visa-related documents. However, the receipt by the Appellant of the Respondent’s letter of 11 November 2015may prove to be irrelevant since, in any case, it is undisputed that the monthly salaries were due on the dates indicated in the Employment Contract (“the end of every Gregorian month”), irrespective of any request of payment by the Player, and that the Club in any case received the claim lodged thereafter by the Player with FIFA, but still failed to either make the payment requested or react in any other way.

110. Notwithstanding the above, on the balance of probabilities the Sole Arbitrator is satisfied that the Player offered sufficient evidence to prove that the letter of 11 November 2015 was sent and received. The bill of receipt attached to the letter bears some stamp, evidencing its presentation to the relevant Albanian post office. In addition, the fact that the letter was sent is not expressly disputed by the Appellant that only denies its receipt. On such basis, the Sole Arbitrator is satisfied that the letter, sent by the Player, can also be deemed to have been received by the Club. According to Swiss law, facts whose existence must be presumed according to the normal course of events can be indicated as a basis of a judgment, even if these facts are not confirmed by evidence, if the opposing party does not indicate or prove circumstances suitable to put their existence in doubt. In that regard, the Sole Arbitrator notes that a letter, sent through a post office, is ordinarily received, and that the Appellant did not offer any indication, in addition to its own word, to confirm that the letter had not been delivered. Notably, in his letters dated 4 April 2016 and 25 April 2016, the Player reminded that he had kindly asked the Club to provide him with visa and to reintegrate him in the training process after the expiry of the loan period with Laci, as well as to pay outstanding monies, to which the Club did not object.

111. The Appellant admits that it was not until October 2016 when the new management of the Club took up office when the Appellant discovered that the old managers of the Club had failed to inform the new ones about the FIFA proceedings and had not passed over any relevant documents. Therefore, it can reasonably be supposed that any correspondence from the Player were not kept in the best possible way and was not duly passed over to the new management of the Club. As an explanation for not filing a reply to the Player’s claim in the FIFA proceedings, the Appellant further noted that as a small club it lacked a proper management structure. In the view of the Sole Arbitrator, however, shortcomings in proper keeping of files and documents or deficiency in the organization of the Club cannot be held to the detriment of the Player.

112. Regardless of whether the default notice dated 11 November 2015 was received by the Club, it is not in dispute that the Club was further requested to comply with its contractual obligations by the Player’s letters dated 4 April 2016 and 25 April 2016 when the Player sent a final notice of default and warned that failure to satisfy the requests would force him to terminate the Employment Contract with just cause and to file a claim before FIFA. On 30 May 2016, the Player terminated the Employment Contract for the reasons stated in the termination notice, to which the Club did not object. In the termination notice of 30 May 2015 the Player made express reference to his correspondence of 25 April 2016.

113. In the opinion of the Sole Arbitrator, the above shows that the Club had for some reasons lost interest in the Player’s services as the Club was in default of various payments due

pursuant to the Employment Contract and did not react in any way to the Player’s actions to obtain his remuneration, even before the Employment Contract was terminated. According to the Sole Arbitrator, such attitude justifies the termination by the Player since he could not reasonably expect future performance by the Club in accordance with the Employment Contract.

114. For the reasons set out above, the Sole Arbitrator is satisfied that the Appellant had been warned of a possible termination of the Employment Contract.

115. As set out above, the Sole Arbitrator finds that, both prerequisites for the early termination with “just cause” of the Employment Contract because of the Appellant’s failure to pay the due salaries are satisfied: (i) the unpaid amount due by the Club was not “insubstantial” or completely secondary; and (ii) the Player gave a warning, drawing the Club’s attention to the fact that its conduct was not in accordance with the Employment Contract.

b) Did the Club fail to facilitate the obtaining of the Player’s visa?

116. It is common knowledge and is in fact not disputed by the Parties that visitors to Saudi Arabia must obtain a visa in advance unless they come from one of the visa exempt countries (Albania is not among such visa exempt countries). In addition to an entry visa, an employment visa is required for staying in the country for the purpose of providing labour services under an employment contract. In other words, the right of employment is subject to obtaining a visa/work permit.

117. Thus, the Player must have had a visa before he would be able to play for the Club. The Sole Arbitrator holds that the Club, as the employer, is responsible for obtaining the visa/work permit. It is a general rule that the employer, the Club, must arrange the visa/work permit for the employee, the Player. Furthermore, according to Article 18.4 of the RSTP, it is explicitly stipulated that the validity of a contract may not be made subject to the granting of a work permit (it would not be a far reaching extensive interpretation if this provision is applied by analogy with respect to visa, too).

118. The employer is obliged to undertake the necessary steps to provide his employees with visa and/or work permit. It is very natural and is a basic principle of any labour law that an employer must provide his employees with visa/work permit, if necessary. By not providing the employee with visa/work permit, not even after being reminded to do so, the employer in effect is forcing the employee to leave. If an employer does not undertake the necessary action to provide his employee with a visa/work permit and if this prevents him from entering the country in which he is employed and therefore to start work, this could be seen as an unjustified breach of contract by the employer.

119. The Club and the Player signed the Employment Contract valid for a term of three years. If the Club genuinely wished to benefit from the services of the Player it should have made the necessary actions to obtain a long term visa for him. At the very least, the Club should have obtained a visa for the Player following the expiry of the Flamurtari Loan Contract and the Laci Loan Contract. It should be noted in that aspect that it is unreasonable for the Club to

wait until only expiration of the said Loan Contracts before applying for a visa for the Player in front of the competent authorities. The Player has the right to know well in advance whether or not the Club would be taking the necessary actions for obtaining visa or, in the opposite, he can look for another club and thus avoid having to find himself unemployed in case the Club decides not to provide him with visa.

120. The Sole Arbitrator does not share the Appellant’s view that the Player should have tried to travel to Saudi Arabia at his own expenses, reserving the right to claim a full compensation by the Club, thus implying that a visa could have been obtained by the Player personally. According to the Club, the Player did not himself take the necessary steps to secure his legal entry into the country. If an employer alleges that it does not bear any responsibility for obtaining visa and work permit of the player, it is up to the employer to prove this allegation. The Club failed to prove such allegation and is therefore presumed to have been under the responsibility for obtaining the visa/work permit. The responsibility to obtain the necessary visa/work permit to enable the player to render his services to the club is incumbent on and lies with the club. The club is responsible to undertake the appropriate actions to obtain the visa/work permit for the player not only before concluding the relevant contract but, as the case may be, at some point of time during the duration of the said contract (for example, in this particular case after the expiry of the Laci Loan Contract). In the absence of proof to the contrary, it must be held that the visa or work permit had not been obtained by the Club.

121. In that respect, the Sole Arbitrator notes that the Appellant cannot truly rely on the award in CAS 2013/A/3444 where the Panel reached the conclusion that, by doing nothing to return to Romania (the home country of the club) on his own and request reimbursement of travel expenses, the player had no just cause to terminate the contract. The circumstances there were different as, first, nationals of Brazil (the home country of the player) are exempted from Romanian visa requirements and access is visa-free for them, and, second, the player had already played for his club but did not return from holidays.

122. It is the duty of the club to make sure that the relevant application and required documents are duly and timely completed and submitted to the relevant authorities so as to allow the obtaining of the visa/work permit. Of course, the player must cooperate in full with the efforts to obtain visa or work permit. Thus, the player must put himself at the club’s disposal and supply the prospective club with all necessary information and documentation in order to facilitate these tasks. However, it can hardly be expected that the initiative for collecting the required documentation must come from the player who is not national of the host country and is presumably not aware of the formal requirements.

123. In any event, the Sole Arbitrator is satisfied that the Player showed sufficient degree of diligence by requesting the Club on more than one occasion to be provided with necessary documents for obtaining visa to enter Saudi Arabia (the first one already during the existing Laci Loan Contract). The Club, however, did not offer any evidence demonstrating that it ever contacted the Player either for the purpose of complying with the administrative formalities for obtaining a visa, or for any other contract-related issue.

124. The findings of the Sole Arbitrator are consistent with other CAS jurisprudence. Although the Sole Arbitrator in CAS 2015/A/4158 ultimately found that the coach there had terminated the employment contract without just cause, with respect to visa it held: “… Although the Employment Contract contains no provision regarding the visa and work permit renewals, the Club, as the employer, had an implied duty to facilitate the renewal of the Coach’s visa and work permit. This is the general presumption in employment relationships and if the Club intended to shift this obligation to the Coach, then it ought to have ensured a clause to this effect in the Employment Contract” (at para.118).

125. Similarly, the Sole Arbitrator in CAS 2014/A/3706 concluded: “As per the Player’s visa renewal, the Sole Arbitrator considers that it was also the responsibility of the Respondent, as employer of the Appellant, to provide this last with all the necessary documents” (at para.95).

126. The Sole Arbitrator considers that among a player’s fundamental rights under an employment contract, is not only his right to a timely payment of his remuneration, but also his right to access training and to be given the possibility to compete with his fellow team mates in the team’s official matches. By not undertaking the necessary actions to provide a player with visa or working permit, the club is effectively barring, in an absolute manner, the potential access of a player to competition and, as such, violating one of his fundamental rights as a football player.

127. As elaborated above, the circumstances must be such that, according to the rules of good faith, the party terminating the employment relationship cannot be required to continue it. When immediate termination is at the initiative of the employee, a serious infringement of the employee’s personality rights, consisting, for example, in unilateral or unexpected change in his status which is not related either to company requirements or to organization of the work or the failings of the employee, may be deemed “good reason”.

128. According to Articles 28 et seq. of the Swiss Civil Code, any infringement of personality rights caused by another is presumed to be illegal and subject to penalties unless there is a justified reason that overturns this presumption. It is generally accepted in jurisprudence (ATF 120 II 369; ATF 102 II 211; ATF 137 III 303; Judgment of the Swiss Federal Tribunal 4A_558/2011, dated March 27, 2012) that personality rights apply to the world of sport. For athletes, personality rights encompass in particular the development and fulfilment of personality through sporting activity, professional freedom and economic freedom. An athlete who is not actively participating in competitions depreciates on the market and reduces his future career opportunities. Athletes have therefore a right to actively practice their profession. To the extent that Articles 28 et seq. of the Swiss Civil Code protect parties from negative actions and require offending parties to refrain therefrom, but do not grant rights to positive actions, such right to actively practice one’s profession is resolved notably by labour law (CAS

129. The Employment Contract was therefore not terminated by mutual agreement, but unilaterally by the Player with just cause due to the Club’s misbehaviour. From the facts stated before, the Sole Arbitrator is satisfied that the unilateral termination was caused by the Appellant in that it failed to pay agreed remuneration and did not carry out the necessary actions for

providing the Player with visa all of which had the effect of a just cause for the Player to terminate the Employment Contract.

130. In application of Article 8 of the Swiss Civil Code, concerning the burden of proof, it has been considered that it is up to the party invoking a “just cause” to establish the existence of the facts founding this “just cause” (see IBARROLA J., La jurisprudence du TAS en matière de football – Questions de procédure et de droit de fond, in BERNASCONI/RIGOZZI (eds.), The Proceedings before the Court of Arbitration for Sports, Berne 2007, p. 252).

131. In the present case, the Sole Arbitrator is clearly of the opinion that the Player established the existence of a just cause. For all the reasons set out above, the Sole Arbitrator concludes that the Employment Contract was unilaterally terminated by the Player with just cause.

B. What are the legal consequences of termination of the Employment Contract with just

cause?

132. Having established that the Club is to be held liable for the early unilateral termination of the Employment Contract by the Player, the Sole Arbitrator will now proceed to assess the legal consequences of the termination.

133. The Sole Arbitrator observes that Article 14 of the RSTP 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”.

134. Although the Sole Arbitrator 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.

135. The Sole Arbitrator, however, is satisfied that the Player is, in principle, entitled to outstanding payments and compensation because of the breach of the Employment Contracts by the Club. In this respect, the Sole Arbitrator makes reference to the Commentary to the RSTP (the “FIFA Commentary”). According to Article 14 (5) and (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.

136. The Sole Arbitrator observes that Article 17.1 of the RSTP 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”.

137. As the Employment Contract does not contain any contractual provisions determining the consequences of a possible unilateral breach by the Club, the Sole Arbitrator will apply Article 17 of the RSTP 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 RSTP 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 §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).

138. With reference to CAS 2014/A/3642, the Appellant purports that the lack of genuine interest to stay remaining contracted with the club is the decisive element in excluding the player’s right to receive compensation for the alleged unlawful termination caused by the club. In that particular case, the panel found that the player did not have sufficient grounds to terminate the contract with just cause. The panel in CAS 2014/A/3642, however, found that although, in general, compensation was due in case of a breach of contract without just cause, the fact that the club placed no value on the player’s services questioned the existence of any damage for the club. As the club apparently considered it favourable to save the payments of salary in exchange of losing the player’s services, it could not argue that there was a damage to be compensated when losing such services while saving the salary. The panel therefore ruled that the club should not be awarded any value or compensation for the player, regardless of whether he breached the contract or not.

139. The Sole Arbitrator observes that the facts in the present case are different in that, as was already established above, the Player had just cause to terminate the Employment Contract. On the other hand, it remained unproven that the Player had no real interest in pursuing its career with the Appellant. On the contrary, the written evidence in the file shows the opposite.

140. Therefore, in the present case of premature termination of the Employment Contract the breaching party (the Club) shall owe compensation to the Player.

C. Were outstanding amounts and compensation for breach of contract determined

correctly in the Appealed Decision?

a) Outstanding remuneration

141. The relevant provisions related to payments contained in the Employment Contract for 2015 provide for “payment of a monthly salary of ## 7500 # Seven thousand five hundred US dollars each month of the first year …. To the second party at the end of every Gregorian month”. Next, denoted as “any other benefits”, the Employment Contract further provides, as follows: “paid player in the first year the amount of 100,000 one hundred thousand US dollars received as provider contract and the remaining 10% distributed on a monthly salary for a year”. The relevant salary provisions contained in the Employment Contract for 2016 and 2017 respectively provide the following: “paid player in the second year the amount of 110,000 one hundred and ten thousand US dollars received as provider contract and the remaining 15% distributed on a monthly salary for a year” and “paid player in the third year the amount of 150,000 one hundred and fifty thousand US dollars received as presenter hold 15% and the rest distributed in monthly salaries for a year”.

142. As correctly noted by the DRC, the contract provisions related to payments during the respective years of the term of the Employment Contract are vague and require interpretation. In order to properly analyse them, the DRC considered the information in the TMS, which confirmed that the salary for the first year totals USD 100,000, that the salary for the second totals USD 110,000 and that the salary for the third year totals USD 150,000.Considering the relevant provisions, the DRC further accepted, with which the Sole Arbitrator agrees, that any of the annual payments were divided into two components: (i) an instalment in a percentage of the total amount payable at the beginning of the respective year and (ii) a monthly salary calculated after deduction of the instalment from the total amount. Thus, the Employment Contract provided for the total payment of USD 100,000 for 2015 with USD 10,000 payable at the beginning of 2015 (10% of the total amount of USD 100,000) and a monthly salary of USD 7,500 payable thereafter. Next, the Employment Contract provided for the total payment of USD 110,000 for 2016 with USD 16,500 payable at the beginning of 2016 (15% of the total amount of USD 110,000) and a monthly salary of USD 7,792 payable thereafter. Lastly, the Employment Contract provided for the total payment of USD 150,000 for 2017 with USD 22,500 payable at the beginning of 2017 (15% of the total amount of USD 150,000) and monthly salary of USD 10,625 payable thereafter.

143. The Sole Arbitrator notes that, the Appellant generally disputes to be liable for any outstanding payments. The Appellant, however, does not object to the DRC’s findings regarding the information contained in the TMS. The Appellant does not object to the particular calculation of the separate outstanding payments (instalment plus monthly salaries) made by the DRC after decoding the content of the salary provisions, either. Further, the Appellant explicitly confirmed in the appeal brief that the Player had a monthly salary of USD 7,792 for 2016 and of USD 10,625 for 2017.

144. The DRC awarded a total amount of USD 70,460 comprising of USD 15,000 as salaries due for the months of July and August 2015 (each in the amount of USD 7,500), USD 16,500 as instalment due at the beginning of 2016 (15 % from USD 110 000) and USD 38,960 as salaries

due for the months of January - May 2016 (each in the amount of USD 7,792). The decision of the DRC with respect to outstanding payments is hereby confirmed with the following two notes.

145. First, the DRC is somewhat inconsistent in that it first concluded that for the year 2015 the Employment Contract provided for the total payment of USD 100,000 with USD 10,000 payable at the beginning of the year and a monthly salary of USD 7,500 payable thereafter (point II./6 of the Appealed Decision). However, later on in the decision, the DRC held that the instalment due at the beginning of 2015 was not due point (II./10 of the Appealed Decision) while the instalment due at the beginning of 2016 was granted (point II./11 of the Appealed Decision). Nevertheless, the rejection of the claim pertaining to the instalment due at the beginning of 2015 was not appealed by the Player and therefore the Sole Arbitrator cannot review the Appealed Decision in this part.

146. Second, in his claim lodged before FIFA, the Player requested the payment of USD 6,875 as five monthly salaries for the months of January - May 2016 calculated as USD 1,375 per month. The DRC awarded an amount of USD 38,960 (calculated as 5 months x USD 7,792) although the Player claimed under this heading salaries for 5 months in the amount of USD 1,375 per month (equal to a total of USD 6,875). The Sole Arbitrator is mindful of the “non ultra petita” principle, according to which a party may not be awarded anything more than or different from what it has requested. However, the DRC was not barred under the ne ultra petita principle from ordering the Club to pay USD 38,960 to the Player, although the Player in his prayers for relief before the DRC had requested payments amounting to USD 6,875. The DRC has partially rejected the Player’s claim related to the instalment due at the beginning of 2016 in the amount of USD 110,000 (the DRC ordered payment of USD 16,500) and thus was able to award more to the Player under the heading of the claim for outstanding salaries of January - May 2016, because the total amount awarded remains lower than the total amount claimed by the Player as outstanding remuneration (cf. KAUFMANN-KOHLER/RIGOZZI, International Arbitration – Law and Practice in Switzerland, 2015, p. 478, para. 8.164). In addition, the Appellant has confirmed that the monthly salary for 2016 is in the amount of USD 7,792 (and not USD 1,375) and therefore the Sole Arbitrator is satisfied that the DRC decision was correct.

b) Compensation

147. In respect of the calculation of compensation in accordance with Article 17 of the RSTP and the application of the principle of “positive interest”, the Sole Arbitrator took note of the explanation thereof by a previous CAS Sole Arbitrator:

“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 2008/A/1519-1520, at §80 et seq.

148. The Sole Arbitrator finds that the legal framework set out above and the principle of positive interest are also applicable to the present case. The principle of the so-called positive interest (or “expectation interest”) aims 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 recognized by various law systems and aims at setting the injured party to the original state it would have if no breach had occurred. The positive damages of the employee are the salaries and other material income that he would have had if the contract would have been performed until its natural expiration. Therefore, in the case of termination of the Employment Contract for just cause by the Player, the latter would be entitled to the entire income until the expiration of the fixed duration of the Employment Contract (and not only until the termination) less any amount received from a third party.

149. According to the CAS jurisprudence (CAS 2008/A/1447, para. 30; CAS 2008/A/1518, para. 71), Article 17.1 RSTP closely follows Article 337c Swiss CO, which grants as compensation to the party not being in breach of the contract an amount corresponding to all claims arising out of the employment relationship, reduced by everything “which he saved as a consequence of the termination of the employment relationship and which he earned or intentionally failed to earn through other work”(see CAS 2006/A/1180, para. 41). The Sole Arbitrator therefore has to compare two financial situations in order to determine the compensation: the Player’s hypothetical financial situation without the Appellant’s breach of contract and his financial situation following the breach of contract by the Appellant.

150. Indeed, the Sole Arbitrator notes that there is a consensus in the CAS jurisprudence as to the application of the “positive interest” principle approach followed in the case of CAS 2008/A/1519 & 1520, and applied in CAS 2009/A/1880 & 1881. The Sole Arbitrator agrees with such approach and emphasises that the application of the criteria indicated by Article

17.1 RSTP should “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” (CAS 2008/A/1519 & 1520, § 86).

151. For such purposes, it is this Sole Arbitrator’s role to consider each of the criteria within Article 17.1 RSTP and any other objective criteria, in light of the specific facts of this case and to determine how much weight, if any at all, to apply to each in determining the amount of compensation due in this particular case. It is also the Sole Arbitrator’s role to ensure that “the calculation made … shall be not only just and fair, but also transparent and comprehensible” (CAS 2008/A/1519 & 1520, § 89), with a view to putting the injured party in the position it would have been in, had no breach occurred.

152. In this case, however, in which a breach by the Club (and not by the Player) is involved, the “remuneration factor”, together with “the time remaining on the existing contract” plays a major role. In addition, the salaries and other benefits earned by the player in question under any new contract signed (also to mitigate the damages sustained) have to be taken into account by way of deduction from the amount the player can claim.

153. Against this background, the Sole Arbitrator will proceed to determine the amount due. The Sole Arbitrator observes that the DRC awarded the amount of USD 193,000 to the Player as compensation for the breach of contract by the Club as well as 5% interest per annum after the expiry of 30 days as from 2 December 2015.

154. The DRC granted compensation on the basis of the remaining duration of the Employment Contract, had there been no breach by the Appellant. The Sole Arbitrator shares the view of the DRC that in the present case it is reasonable to take into due consideration, on the one side, the amount of the salary to be received by the Player for the remaining duration of the Contract and, on the other side, to deduct the amounts earned by the Player from his new club. The basis for calculating the compensation granted to the Player seems therefore to be neither arbitrary nor unreasonable, as claimed by the Appellant.

155. The remaining payments under the Employment Contract, following the termination of 30 May 2016, include 7 salaries for 2016 (June to December 2016) and the payments for the entire 2017. It was established that the monthly salary for 2016 was in the amount of USD 7,792 and therefore the remaining payments for 2016 were totalling USD 54,544 (7 months x USD 7,792). The Employment Contract provided for the total payment of USD 150,000 for 2017. Therefore, the residual value of the Employment Contract was in the amount of USD 204,544 (USD 54,544 + USD 150,000).

156. On 13 July 2016, the Player concluded a new employment contract with Vllaznia valid until 31 May 2018 pursuant to which the Player was entitled to receive a monthly salary of Albanian Lek 88,000 (equal to approximately USD 780, according to the Appellant, or USD 770, according to the Respondent, respectively). The Sole Arbitrator accepts the figure of USD 770 for which evidence of the exchange rate was presented to the file. The Sole Arbitrator observes that in addition to the fixed amount of Albanian Lek 88,000, the Vllaznia contract provides also for a contingent payment (“Variable Reward every month 88.000”) subject to the

fulfilment of certain conditions such as appearances for the club. The Sole Arbitrator, however, was not provided with evidence if the conditions for payment of the additional bonus of Albanian Lek 88,000 were met or if the parties reviewed the financial conditions to the Vllaznia contract in the second year

157. According to generally accepted principles of the law of damages and also of labour law (cf. Article 337c of the Swiss CO and Article 17.1 of the RSTP), any amounts which the Player earned must be deducted from the compensation. The Sole Arbitrator, therefore, finds that the remuneration the Player earned with Vllaznia during the remaining contractual term of the Employment Contract should be deducted from the amount the Player would have earned with the Club should the Club have properly performed the Employment Contract. In other words, the amount of the Player’s salaries from Vllaznia for the months of July 2016 to December 2016 (the Sole Arbitrator will count the entire monthly salary of July 2016 considering that the contractual relationship was operational for more than half of the month of July) and for the 12 months in 2017 should be deducted. This amount of the Player’s salaries form Vllaznia is calculated to be in the total of USD 13,860 (18 months x USD 770).

158. In conclusion, the compensation for termination of the Employment Contract for just cause is in the amount of USD 190,684 (USD 204,544 - USD 13,860). Therefore, the Appealed Decision which awarded the amount of USD 193,000 should be accordingly modified.

159. According to articles 104 and 339 of the Swiss CO, the Appellant has to pay the Respondent a 5% annual interest rate on the compensation owed under article 337b of the Swiss CO for the termination of the Employment Contract as from the date following its termination (i.e. 30 May 2016). Indeed, the Player lodged his claim before FIFA on 2 December 2015 which was subsequently amended on 8 August 2016. However, as of the first date, the termination of the Employment Contract, which triggers the obligation for compensation, was not a fact. For the above-mentioned reasons, the Sole Arbitrator disagrees with the DRC regarding the date on which interest started to accrue and rules that the Respondent is indeed entitled to receive from the Appellant interest on the amount of USD 190,684 but from the date following the termination of the Employment Contract, i.e. from 31 May 2016.

160. The Appellant questioned the credibility of the amount of the salary of the Player with Vllaznia stating that such an amount was not true and made a request for the production of certain documents. In the course of the proceedings the request was modified and the Appellant indicated that it maintained only its request for disclosure under para.144, let.a of its appeal brief (any copy or unilateral acknowledgement signed in connection to and/or as a consequence of the Player’s registration and his employment relationship with Vllaznia, including any contracts for the exploitation of image rights, sponsorship or endorsement rights, etc.). As stated above (para. 37 of the Award), the request was denied by the Sole Arbitrator for reasons to be set out in the arbitral award.

161. The request was refused on the basis that the Appellant has not been able to prove that any other documents exist (as required by Article R44.3 of the Code).The Appellant’s challenge was not substantiated by facts or at least by an indication that any of the requested documents were ever concluded or must have been in the custody of the Player. According to Swiss

procedural law, a valid contestation of facts needs to be specific, i.e. it must be directed and attributable to an individual fact submitted by the party bearing the burden of proof (ATF 117 II 113, E. 2; ATF 115 II 1, E. 4; see also SFT 4A_299/2015, E. 2.3; DIKE-ZPO/LEU, 2011, Art 150 no 59). The challenge made by the Appellant was generic in nature and did not meet this threshold.

162. In this context, the Club also claims that the Player failed to comply with the duty to mitigate his damage. As already noted above, according to article 337 c (2) of the Swiss CO, the duty of mitigation is related to the rule that the employee must permit a set-off against the amount of compensation for what he saved because of the termination of the employment relationship, or what he earned from other work, or what he has intentionally failed to earn.

163. In the opinion of the Sole Arbitrator, such a rule implies that, in accordance with the general principle of fairness, the injured player must act in good faith after the breach by the club and seek for other employment.

164. The wording of article 337c (2) of the Swiss CO, with reference to what the employee intentionally failed to earn, suggests that the duty to mitigate should not be considered satisfied when, for example, the player deliberately fails to search for a new club or unreasonably refuses to sign a satisfying employment contract, or when, having different options, he deliberately accepts to sign the contract with worse financial conditions, in the absence of any valid reason to do so.

165. In this respect, the Sole Arbitrator holds that in the specific case at stake, there is no evidence in the file that the Player intentionally failed to find new employment opportunities after the termination of the Employment Contract.

166. Moreover, the Sole Arbitrator observes that the Club has not demonstrated that the Player acted in bad faith or that he deliberately decided not to enter into negotiations with other clubs after the termination of his relationship with the Appellant.

167. According to the principle established by CAS jurisprudence, “in CAS arbitration, any party wishing to prevail on a disputed issue must discharge its burden of proof, i.e. it must meet the onus to substantiate its allegations and to affirmatively prove the facts on which it relies with respect to that issue. In other words, the party which asserts facts to support its rights has the burden of establishing them (…). The Code sets forth an adversarial system of arbitral justice, rather than an inquisitorial one. Hence, if a party wishes to establish some fact and persuade the deciding body, it must actively substantiate its allegations with convincing evidence” (e.g. CAS 2003/A/506, para. 54; CAS 2009/A/1810 & 1811, para. 46 and

168. The Sole Arbitrator holds that since the Club maintains that the Player failed to mitigate his damage, it is the burden of the Club to prove that the Player intentionally refused to sign other employment contracts or otherwise intentionally failed to reduce his damage. As a result of the observations above, the Sole Arbitrator believes that the Player partially mitigated his damage by signing a new employment contract with Vllaznia on 13 July 2016. The Sole Arbitrator was not referred to any evidence that prior to that date or afterwards, the Player

failed to comply with his duty to mitigate his damages within the meaning of article 337c (2) of the SCO, as specified above.

169. According to the terms of the individual employment contracts entered into between the Player and Flamurtari and Laci, the Player was entitled to a monthly salary of EUR 800 and USD 1,000, respectively. The Sole Arbitrator concludes from this that the amount of the monthly payment under the Vllaznia contract (USD 770 plus potential bonus) was close or comparable to the one agreed in the employment contracts of the Player with Flamurtari and Laci. Therefore, the Sole Arbitrator is satisfied that the amount of the salary of the Player with Vllaznia was not untrue.

170. Contrary to what the Appellant argues, the difference in costs of living and levels of average salary in Saudi Arabia and Albania is not a convincing reason to justify a different calculation or reduction of the compensation due to the Player. The Sole Arbitrator can only conclude that the damage suffered by the Player justifies the basis of calculating the compensation determined in the Appealed Decision as amended with the present Award.

171. In view of all the above findings, the Sole Arbitrator decides to partially uphold the Appellant’s appeal only with respect of reduction of the sum awarded as compensation for termination of the Employment Contract for just cause and the interest accrued thereupon. The Appealed Decision in that respect shall be amended and the Appellant is therefore ordered to pay to the Respondent the amount of USD 190,684 as compensation for termination of the Employment Contract for just cause as well as 5% interest per annum as from 31 May 2016.

172. The Appealed Decision shall only be modified with respect of the above amounts. In its remaining part the Appealed Decision should be upheld and the appeal dismissed.