Gil Vicente Futebol Clube v. FC/FK Rad

II. FACTUAL BACKGROUND

3. Below is a summary of the main relevant facts, as established on the basis of the Parties’ written submissions and the evidence examined in the course of the present appeal arbitration proceedings and during the hearing. This background is set out for the sole purpose of providing a synopsis of the matter in dispute.

4. On 2 August 2019, the Appellant and the Respondent (hereinafter “the Parties”) concluded a transfer agreement (hereinafter “the Transfer Agreement”) regarding the permanent transfer of the player A. (hereinafter “the Player”), from FK Rad to Gil Vicente.

5. The Transfer Agreement provided, in its Article 1, that its validity was subject to the following suspensive conditions: (i) The Player has successfully completed the medical examination conducted by Gil Vicente and, (ii) Gil Vicente and the Player have entered into a valid employment contract.

6. Article 3 of the Transfer Agreement stipulated that FK Rad is entitled to a transfer fee of EUR 80,000, payable in two instalments: (i) EUR 50,000 upon signing the Transfer Agreement and,

(ii) EUR 30,000 until 31 August 2019 at the latest.

7. On 5 August 2019, Gil Vincente and the Player signed an employment contract (hereinafter “the Employment Contract”).

8. On 8 August and 22 October 2019, medical examinations were carried out. According to the report dated 22 October 2019, the Player suffered from a chronic femoral patellar instability.

9. The Parties communicated with each other via E-Mail and WhatsApp. On 8 August 2019, the Respondent sent an email with an invoice for the payment of the first instalment to the Appellant (hereinafter “the First Invoice”). Shortly after receiving this email the Appellant received another email in which it was asked to withhold the payment. On the following day, on 9 August 2019, the Appellant received a new invoice for the first instalment (hereinafter “the Second Invoice”). On 21 August 2019, the Appellant made the payment of EUR 50,000 according to the Second Invoice.

III. PROCEEDINGS BEFORE THE FIFA PSC

10. On 30 October 2019, FK Rad lodged a claim in front of the FIFA Players’ Status Committee (hereinafter “the FIFA PSC”) against Gil Vicente, requesting the payment of the overdue transfer fee in the amount of EUR 80,000, in accordance with the Transfer Agreement as well as “interest as of the due dates”.

11. Gil Vicente, in turn, claimed back the first instalment of EUR 50,000, arguing that the amount has already been paid to FK Rad, but not owed as the Player had failed medical examinations which is why Gil Vicente considered the Transfer Agreement to be invalid.

12. On 29 July 2020, the Single Judge of the FIFA PSC issued the following decision (hereinafter “the Appealed Decision”):

1. The claim of the Claimant / Counter-Respondent, FK Rad, is accepted.

2. The counterclaim of the Respondent / Counter-Claimant, Gil Vicente FC, is rejected.

3. The Respondent / Counter-Claimant has to pay to the Claimant / Counter-Respondent, the following:

• EUR 50,000 plus 5% interest p.a. as from 3 August 2019 until the date of effective payment;

• EUR 30,000 plus 5% interest p.a. as from 1 September 2019 until the date of effective payment;

4. A warning is imposed on the Respondent / Counter-Claimant.

5. The Claimant / Counter-Claimant is directed to immediately and directly inform the Respondent / Counter-Claimant of the relevant bank account to which the Respondent / Counter-Claimant must pay the due amount.

6. The Respondent / Counter-Claimant shall provide evidence of payment of the due amount in accordance with this decision to psdfifa@fifa.org, duly translated, if applicable, into one of the official FIFA languages (English, French, German, Spanish).

7. In the event that the amount due, plus interest as established above is not paid by the Respondent within 45 days, as from the notification by the Claimant / Counter-Respondent of the relevant bank details to the Respondent / Counter-Claimant, the following consequences shall arise:

1. The Respondent / Counter-Claimant shall be banned from registering any new players, either nationally or internationally, up until the due amount is paid and for the maximum duration of three entire and consecutive registration periods. The aforementioned ban mentioned will be lifted immediately and prior to its complete serving, once the due amount is paid (cf. art. 24bis of the Regulations on the Status and Transfer of Players).

2. In the event that the payable amount as per in this decision is still not paid by the end of the ban of three entire and consecutive registration periods, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee.

8. The final costs of the proceedings in the amount of CHF 2,000 are to be paid by the Respondent / Counter-Claimant to FIFA.

13. The grounds of the decision were communicated to the Parties on 16 September 2020.

14. In its decision, the Single Judge first assessed whether the Transfer Agreement was indeed valid or not.

15. He noted that from the documentation contained in the FIFA Transfer Matching System (hereinafter “FIFA TMS”), it appeared that Gil Vicente had signed an employment contract with the Player and had registered the latter on 8 August 2019. Also, the Player and Gil Vicente mutually agreed to terminate their employment relationship on 13 January 2020. Therefore, the Single Judge concluded that the Transfer Agreement was validly concluded and executed.

16. With regard to the payment in the amount of EUR 50,000 reclaimed by Gil Vincente the Single Judge observed that Gil Vicente had paid this amount to another bank account than the one provided by FK Rad in its invoice. The Single Judge decided that the alleged payment could therefore not be taken into account.

17. From that, the Single Judge inferred that Gil Vicente was obliged to pay FK Rad the total amount of EUR 80,000 (EUR 50,000 plus EUR 30,000) as well as 5% p.a. interest as from the due dates over the aforementioned amounts until the date of the effective payment.

IV. PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT

18. On 6 October 2020, the Appellant filed its Statement of Appeal with the Court of Arbitration for Sport (“CAS”) against the Respondent with respect to the Appealed Decision.

19. On 19 October 2020, within the time limit set, the Appellant filed its Appeal Brief.

20. On 26 October 2020, the Parties were informed by the CAS Court Office that, unless the Respondent objected, the case will be submitted to a Sole Arbitrator as requested by the Appellant. Furthermore, the Respondent was invited to object if it did not agree with English being the language of the proceedings. The Respondent was requested to file its Answer within 20 days of receipt of said letter.

21. On 27 October 2020, the Respondent agreed with both the appointment of a sole arbitrator as well as English being the language of the proceedings. It further requested that the time limit to file its Answer be set once the advance of costs had been paid by the Appellant.

22. On the same day, the CAS Court Office granted the Respondent’s request regarding the filing of its Answer and set aside the time limit set earlier.

23. On 5 November 2020, the Parties were informed by the CAS Court Office that FIFA renounced to its right to request its intervention in the present arbitration proceedings.

24. On 3 December 2020, the Parties were informed by the CAS Court Office that the suspension of the time limit to file the Answer had been lifted. Furthermore, the Parties were advised that the Sole Arbitrator to decide the case at hand had been appointed as follows: Sole Arbitrator: Mr Patrick Lafranchi, Attorney-at-law in Bern, Switzerland

25. On 21 December 2020, the Respondent requested an extension of the deadline of 20 days to file its Answer, which was granted.

26. On 18 January 2021 and within the time limit set, the Respondent filed its Answer. On the same day, the Respondent requested the CAS to deem the Appeal withdrawn, to issue a Termination Order and to exclude the file from the CAS roll, should the Appellant not have paid the second part of the advance of costs.

27. On 19 January 2021, the Parties were requested to inform the CAS Court Office concerning their preferences regarding a possible hearing. They were further informed that the Appellant had paid the totality of the advance costs.

28. On the same day, the Appellant requested three further documents to be admitted to the files.

29. On 26 January 2021, the Appellant requested a hearing to be held. It asked for the addition of two documents as evidences and for authorisation to submit a Reply to the Statement of Defence.

30. On the same day, the Respondent informed the CAS Court Office that i) it preferred a hearing to be held, that ii) it did not agree with the addition of the Appellant’s documents to the process and that, iii) these should be disregarded and excluded from the file. In case the documents were allowed, the Respondent requested that its exhibit R09 be also accepted.

31. On 1 February 2021, the CAS Court Office informed the Parties that the Sole Arbitrator noted that both Parties wished that a hearing be held, and accordingly informed the Parties that further information with respect to possible hearing dates would follow in due course.. Furthermore, the Parties were informed that the Sole Arbitrator had decided to grant a second round of

submissions in accordance with Article R56 CAS Code.

32. On 16 February 2021, the Appellant submitted its Reply requesting the CAS to:

“accepts the present reply and issues an award in favour of the Appellant, declaring the invalidity of the agreement established between the parties - Transfer Agreement FK Rad Beograd- Gil Vicente FC A., and consequently the Respondent is ordered to reimburse Appellant on the amount already payed to the Respondent on 21 August 2019, of the first instalment - EUR 50.000,00 (fifty thousand euros) according to Article 3.1 of the present Agreement, plus 5% p.a. interest until the date of effective payment.

Without prejudice,

Should it be understood that the Agreement entered into is valid, it must always be acknowledged that the Appellant has already paid to the Respondent the amount of EUR 50.000,00 (fifty thousand euros) corresponding to the first instalment, being only supposedly due the amount of EUR 30.000,00 (thirty thousand euros);

In any case: a) The Respondent shall always be condemned as a bad faith litigant in an amount of not less than EUR 10.000,00 (ten thousand euros); and b) The Respondent shall always be condemned to pay the costs of the proceedings”.

33. On 4 March 2021, the Respondent submitted its Second Submission within the prescribed deadline, requesting: a) That the present appeal be dismissed; b) That the Appealed Decision be upheld, being the initial claim of the Respondent fully accepted; c) That the Appellant be ordered to bear all the costs and fees of the present arbitration, as well as to the proceedings before the FIFA PSC; d) That the Appellant be ordered to pay the Respondent a contribution towards legal fees and other expenses incurred in connection with the proceedings and those before the FIFA PSC, in an amount not less than CHF 15,000, or the amount deemed fair by the Sole Arbitrator.

34. On 6 May 2021, the CAS Court Office announced to the Parties that the hearing would take place on 3 June 2021, by video conference. The CAS Court Office further invited the Parties to sign the Order of Procedure issued on behalf of the Sole Arbitrator.

35. The Procedural Order was duly signed and returned to the CAS Court Office on 7 May 2021 by the Respondent and on 11 May 2021 by the Appellant.

36. On 3 June 2021, the hearing by video was held. At the outset of the hearing, all Parties confirmed that they did not have any objections as to the constitution and composition of the Arbitral Tribunal. In addition to the Sole Arbitrator and Mrs Andrea Sherpa-Zimmermann, CAS Counsel, the following persons attended the hearing: For the Appellant:

• Mrs Isabel Carneiro as Legal Counsel

• Mrs Ana da Silva Ferreira as Legal Counsel

• Mrs Paula Carvalho as Interpreter

• Mr José Manuel Martins as Representative and Witness

• Mr José Miguel Pimenta as Representative and Witness For the Respondent:

• Mr Jan Schweele as Legal Counsel

• Mr Thomas Prestes Bosak as Legal Counsel

• Mr Hugo Paris as Legal Counsel

• Mr Gavin Dingley as Legal Counsel

• Mrs. Mirela Markus as Representative and Witness

37. The Appellant renounced to question its representative and witness Mr Tiago Manuela Lenho.

38. The witnesses and the interpreter were instructed by the Sole Arbitrator to tell the whole truth and nothing but the truth, subject to penalties of perjury under Swiss Law.

39. At the hearing, the Parties were given a full opportunity to present their case, submit their arguments, and answer any of the questions from the Sole Arbitrator.

40. As preliminary remark, the Respondent’s legal counsel pointed out that the language of proceedings is English according to Article R29 of the CAS Code and that no deviation has been agreed on. The Parties agreed that the Appellant will ask the questions in English and all its witnesses will answer with the support of the interpreter. Furthermore, the Respondent pointed out that the translations provided by the Appellant have been done by Mrs Ana da Silva Ferreira, who is a Legal Counsel of the Appellant, and are thus not independent translations which is why the weights attached to the translation is limited. Referring to Article R44.1 CAS Code as well as to Articles 4 and 8 para. 3 of the IBA Rules on Taking of Evidence in Arbitration, the Respondent pointed out that the Appellant did not provide any witness statements but only a summary of their statement.

41. In its closing statement the Appellant requested: To declare the invalidity of the agreement celebrate between the Parties and consequently to order to FK Rad reimburse Gil Vincente the amount already paid by the latter of EUR 50,000. Notwithstanding shall this not be the case if the agreement is considered valid, Gil Vincente requests that Gil Vincente has already paid the amount of EUR 50,000 be only due EUR 30,000. Should this not be the case, the proceedings shall be suspended for the time necessary to carry out the measures to be taken by the police which are already on their way in Serbia and in Portugal. Measures that are essential to the matter of truth and the proper decision of the case under the terms of articles R39 and R57 CAS-Code.

42. In its closing statement the Respondent rejected the Appellant’s request to put the proceedings on hold and requested: a) To dismiss this Appeal in full; and b) To confirm the challenged decision rendered by FIFA.

43. At the end of the hearing, the Parties confirmed that they were satisfied with the hearing and that their right to be heard had been provided and fully respected.

V. THE POSITION OF THE PARTIES

44. The following outline of the Parties’ positions is illustrative only and does not necessarily comprise every contention put forward by the Parties. The Sole Arbitrator, indeed, has carefully considered all written and oral submissions made by the Parties, even if there is no specific reference to those submissions in the following summary.

A. The Position of the Appellant in the Appeal Brief

45. In its Appeal Brief, the Appellant requested the Sole Arbitrator to decide as follows: That the CAS accepts the present claim and issues an award in favour of the Claimant, declaring the invalidity of the agreement established between the parties – Transfer Agreement FK Rad Beograd – Gil Vicente FC A., and consequently the Respondent is ordered to return to Appellant the amount already payed to Respondent on 21 August 2019, of the first instalment – EUR 50,000 (fifty thousand euros) according to Article 2 of the present Agreement, plus 5% p.a. interest until the date of effective payment. Without prejudice, Should it be understood that the Agreement entered into is valid, it must always be acknowledged that the Appellant has already paid to the Respondent the amount of EUR 50,000 (fifty thousand euros) corresponding to the first instalment, being only due the amount of EUR 30,000 (thirty thousand euros); In any case: a) The Respondent shall always be condemned as a bad faith litigant in an amount of not less than EUR 10,000 (then thousand euros); and b) The Respondent shall always be condemned to pay the costs of the proceedings.

46. The Appellant points out that the Player had failed the medical examinations carried out on 22 October 2019. In these medical examinations, it was established that the Player suffered from a chronic femoral patellar instability of the left knee. Strength tests showed a significant decrease in values in the left lower limb. It was further stated that said chronic patellofemoral instability is an injury that implies long periods of anterior knee pain, joint effusion and marked limitation of sporting activity, particularly in football, conditioning several periods of stopping of sporting activity, and that they need conservative and / or surgical treatment.

47. On 25 October 2019, the Appellant signed a “Commitment Letter” with the Player which allowed the latter to perform further medical examinations in Serbia.

48. According to the Appellant, it had no choice but to terminate mutually the contract with the Player.

49. The Appellant considers that the suspensive condition in Article 1 of the Transfer Agreement (“The Player has successfully completed the medical examination, as conducted by Gil Vicente FC”) was not met. As said condition, upon which the validity of the contract was depended, was not met, the Transfer Agreement cannot be considered valid.

50. Therefore, FK Rad was not entitled to receive any payment form Gil Vicente. Rather, FK Rad must return the amount of EUR 50,000 corresponding to the first instalment already received.

51. As to the payment made, the Appellant submits that the first instalment of EUR 50,000 owed according to the Transfer Agreement, was paid on 21 August 2019 to the bank account provided by Mrs. Mirela Markus, the Assistant General Manager of FK Rad.

52. The Appellant argues that on 8 August 2019, per first email, the Respondent sent the Appellant the First Invoice containing a Serbian bank account. In a second e-mail, the Respondent urgently asked the Appellant to withhold its payment as the bank account mentioned in the First Invoice could not be used for any transactions as it was closed by the bank.

53. The Appellant submits that on 9 August 2019, another e-mail was sent by FK Rad with a revised invoice (hereinafter “the Second Invoice”) attached. Gil Vicente paid the amount of EUR 50,000 to this bank account.

54. The Appellant states that said payment had been successful. It submits an email of Mrs. Mirela Markus dated 24 September 2019 confirming the receipt of the first instalment.

55. The Appellant therefore states that FK Rad, by hiding the receipt of said payment, acts in bad faith. It submits that the Respondent requests the payment of an amount already paid to which it is not entitled.

56. In case the Transfer Agreement is understood as valid, the Appellant submits that it had already paid EUR 50,000 and thus only EUR 30,000 are due.

57. In sum, the Appellant therefore states that the Respondent shall be condemned as a bad faith litigant.

B. The Position of the Respondent in the Answer

58. In its Answer, the Respondent requested the Sole Arbitrator to decide as follows:

That the present appeal be rejected in totum; That the Appealed Decision be confirmed in totum, being the initial claim of the Respondent fully accepted; That the Appellant be ordered to bear the entire cost and fees of the present arbitration, as well as to the

proceedings before the FIFA PSC; That the Appellant be ordered to pay the Respondent a contribution towards legal fees and other expenses incurred in connection with the proceedings in an amount not less than CHF 10,000, or the amount deemed fair by the Sole Arbitrator.

59. Regarding the validity of the Transfer Agreement, first, the Respondent considers the conditions to be deemed fulfilled, in theory. Second, and despite the fact that the Player did not pass the medical tests, the Transfer Agreement is valid as certain exceptions apply.

60. According to the Respondent, the second condition had been fulfilled upon the signing of the Employment Contract between the Player and the Appellant as of 5 August 2019.

61. With regard to the first condition, the Respondent points out that the conclusion of the Employment Contract on 5 August 2019 took place before the first medical examinations. This contradicts a long-standing jurisprudence of the CAS. It furthermore highlights that under Swiss Law and CAS jurisprudence (cf. art. 156 Swiss Code of Obligations (hereinafter “SCO”); CAS 2016/A/4794) a party responsible for the fulfilment of a condition precedent must take reasonable cautions to such fulfilment. It highlights that the electrocardiogram and the transthoracic echocardiogram dated 8 August 2019. The reports of the MRI’s of the right ankle and the left knee are not dated. However, the final medical exam report is dated 22 October 2019. Referring to CAS 2010/A/2168 and art. 156 SCO, the Respondent underlines that a condition is or is deemed fulfilled where one of the parties has prevented its fulfilment by acting in bad faith and this party is to be held liable.

62. The Respondent then points out – referring to CAS 2016/A/4794 and art. 152 para. 1 SCO - that, the relevant party responsible for the action fulfilling the suspensive condition may execute and perform the agreement without all conditions being fulfilled. It stresses that Gil Vicente did make use of that possibility by registering the Player, signing the Employment Contract and allegedly even paying the first instalment of the transfer fee in the amount of EUR 50,000. Thus, the Appellant performed the Transfer Agreement despite the fact that one of the suspensive conditions was allegedly not fulfilled.

63. Also, the Respondent considers the Appellant to violate the principle of venire contra factum proprium. By arguing that only EUR 30,000 would be outstanding, Gil Vicente admits that the Transfer Agreement is valid and that it has effectively been performed.

64. Regarding the alleged payment made by the Appellant, the Respondent states that it has never received the payment of the first instalment. The Appellant, who bears the burden of proof according to art. 8 Swiss Civil Code (hereinafter “SCC”), fails to prove that FK Rad received the allegedly made payment of EUR 50,000.

65. The Respondent contests the authenticity of the e-mail exchange between the Parties submitted by the Appellant. It states that it has never sent an e-mail with further instructions nor a different, second invoice with bank details of a Spanish bank account to the Appellant and that it has never confirmed receipt of the payment allegedly made by Gil Vicente. It submits a different version of the email exchange as well as an official statement of the Banco Santander,

a Spanish bank according to which the Spanish bank account of the Second Invoice does not belong to the Respondent.

66. The Respondent further points out that the Second Invoice shows that said bank details were grossly copied and pasted, evidencing an obvious adulteration in the correct invoice [the First Invoice] previously sent by FK Rad, containing the correct bank details with the Respondent’s only bank account.

67. In case the Appellant indeed should have received instructions and effectively should have made a payment, it had failed to undertake the minimal reasonable and expected due diligence. The Respondent therefore considers the Appellant to be liable for this fault according to Article 99 para. 1 SCO.

68. The Respondent submits that regardless of the different versions of the e-mail communication it did not received the payment of the transfer fee of EUR 80,000, to which it would be entitled, plus interest of 5% p.a. as from the date of each instalment.

69. Regarding the request of condemnation as bad faith litigant, the Respondent submits that it has never acted in bad faith and that the request is not supported by any legal basis.

C. The Position of the Appellant in the Reply

70. The Appellant upholds that the Transfer Agreement is valid and the Respondent has to reimburse the Appellant EUR 50,000. It states that due to internal restructuring it was not able to perform the medical examinations before the signing of the Employment Contract with the Player. It further points out that the first medical exam is dated 8 August 2019 and weak physical conditions were mentioned in the training reports.

71. Furthermore, the exception of articles 152 para. 1 and 156 SCO do not apply as the Appellant acted in accordance with the principle of good faith and of nemo auditor propriam turpitudinem allegans. The payment of EUR 50,000 was an act in good faith. So was the registration of the Player which was further necessary due to the deadline of the Portuguese Football Federation.

72. Regarding the emails, the Appellant states that it has never falsified any email chains or documents. It states that it received the emails submitted by itself but neither sent nor received the emails submitted by the Respondent. The submitted emails by itself are authentic as it received them from the official FK Rad email account.

73. The Appellant argues that by making the payment to the Spanish bank account it followed the instruction given by the official email account of the Respondent.

74. With regard to the burden of proof, the Appellant argues that it only has to prove that it made the payment and not that the Respondent received the payment. Thus, it is irrelevant whether a fraud was committed by the Respondent or whether the Respondent’s email account was hacked.

75. The Appellant points out that according to the emails submitted by the Respondent the latter

tried to contact the Appellant’s financial department using email-addresses that first have never been communicated to it and second do not belong to the Appellant.

76. The Appellant argues that the email exchange submitted by the Respondent shows that the latter did not communicate with the official email addresses of the Appellant. The official email addresses of the Appellant (ending with “@gilvcentefc.pt”) are shown as sender or receiver, however, different email addresses (ending with @gmx.pt”) appear under “reply to” or “cc”. Thus, the Respondent’s emails are sent to the @gmx.pt-addresses, which do not belong to the Appellant.

77. According to the Appellant either the Respondent’s email account has been hacked or the Respondent has forged emails and created a fake bank account. It denies that itself was hacked arguing that only in the email chain submitted by the Respondent the @gmx.pt-addresses appear. Furthermore, the Appellant refers to the statement of Mrs. Mirela Markus according to which she had contact with […]@gilvicentefc.pt and not with […].gilvicentefc@gmx.pt.

78. According to the Appellant, the Respondent did not receive the payment due to its own negligence. Based on Articles 97 et seq. and 754, 827 SCO, the Respondent is responsible for its own protection and is liable thereof.

79. In any case, the Appellant argues that it was not expected to undertake research with regard to the origin of the bank account as in international football sports it is normal that different bank accounts are used.

D. The Position of the Respondent in the Second Submission

80. The Respondent upholds that the Transfer Agreement is valid. The Respondent submits that there are no precise criteria for the completion of a medical test. If requisite standards are to be met they are to be stated in the contract (cf. CAS 2013/A/3314 and Article 18 SCO). By finishing the medical examination more than two months after the registration of the Player and after the signing of the Employment Contract, the Appellant must have been satisfied and thoroughly informed of the Player’s condition. A “post-agreement medical examination” would neither be fair nor sufficient. This is in line with the principle that if a club does not undertake the necessary research before signing a contract, its later nonfulfillment cannot be based on the injuries or the fact that the player has not received a work permit (cf. CAS 2013/A/3261).

81. Subsidiary and in any event, the Respondent argues that it is entitled to a compensation as the Appellant’s non-compliance with the Transfer Agreement caused a loss of an important player.

82. With regard to the performance of the Transfer Agreement, the Respondent argues that the Appellant has not proven that the Respondent received the payment and thus is not discharged from the burden of proof. Itself, it is not liable for any mistaken payment as it complied with the Serbian law and acted diligently.

83. Regarding the emails addresses, the Respondent submits that the first time a @gmx.pt-address appears as “reply to” in its version of the email communication, is in the email sent by the Appellant on 9 August 2019 at 1:11PM. Only after receiving this email the Respondent started

to communicate with the @gmx.pt-email addresses. The Respondent submits that the respective IP address is located in Bangkok.

84. Referring to the Appellant’s Second Submission the Respondent points out that the Appellant did not communicate with the Respondent’s official email account, fcradbdg@gmail.com, but with fcradbgd@mail.com which appears in the “replay to” function in the chain of emails submitted by the Appellant. The Respondent submits that the email accounts of both Parties were hacked.

85. At the hearing before CAS it was stated that the use of the wrong email addressed of the financial department of the Appellant by Mrs. Mirela Markus was due to a translation mistake by herself and is not related to hacking.

86. Moreover, the Respondent argues that any email sent from fcradbgd@mail.com was not sent by the Respondent or a person allowed to represent it according to Article 38 SCO. Referring to SFT 120 II 201, the Respondent argues that despite acting with due diligence it did not have the chance to prevent the action of the hackers. However, the Appellant could have noticed that the Second Invoice was false.

87. The Respondent submits that the Appellants’ conduct could be considered as grossly negligent. Referring to SFT 4A_386/2016 (5 December 2016), it argues that first the transaction to a bank account abroad and second the insufficient information given for the Second Invoice in addition to its poor quality asked for additional clarifications to be made. It further submits that it did not know and nor could have known about the fraud at the time the payment was made. The Appellant remains bound by the Transfer Agreement according to Article 28 para. 2 SCO.

88. The Respondent submits that the Appellant did not prove that it acted in accordance with the minimal expected and necessary due diligence. The Appellant knew that the payment had to be made to the Serbian bank account as its details were indicated in the FIFA TMS. Furthermore, Mrs. Mirela Markus asked Mr. Tiago Lenho, Team Manager of Gil Vicente, about the payment, after the payment was made by the Appellant. In addition, the order of events does not correspond to the normal behaviour and the Second Invoice was poorly altered. The Appellant would have been obliged to contact the Respondent as a reasonable third party in the same situation had done.