BGPU-BG Pathum United v. Daniel Garcia Rodriguez, Fédération Internationale de Football Association (FIFA)

V. JURISDICTION

63. Article R47 of the CAS Code provides as follows:

“An appeal against a decision of a federation, association or sports related body may be filed with 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 it prior to the appeal, in accordance with the statutes or regulations of that body”.

64. Article 57 (1) of the FIFA Statutes provides:

“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 receipt of the decision in question”.

65. None of the Parties objected to CAS jurisdiction. The jurisdiction of CAS is further confirmed by the Order of Procedure, duly signed by the Parties without any reservation. Although the Parties do not dispute the jurisdiction of CAS to decide on appeals against decisions passed by the FIFA’s legal bodies, the Appellant disputes that the FIFA DRC had jurisdiction to decide the dispute between the Club and the Player, because the Third Employment Contract established the exclusive competence of the Thai Courts. The issue regarding the FIFA jurisdiction to hear the present matter, however, shall be addressed in the merits section below, because it does not concern the CAS jurisdiction to hear the present Appeal.

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

67. Under Article R57 of the Code and in line with the consistent jurisprudence of the CAS, the Panel has full power to review the facts and the law. The Panel, therefore, deals with the case de novo, evaluating all facts and legal issues involved in the dispute.

VI. ADMISSIBILITY

68. 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 in a previous agreement, the time limit for appeal shall be twenty-one days from the receipt of the decision appealed against. The Division President shall not initiate a procedure if the statement of appeal is, on its face, late and shall so notify the person who filed the document. When a procedure is initiated, a party may request the Division President or the President of the Panel, if a Panel has been already constituted, to terminate it if the statement of appeal is late. The Division President or the President of the Panel renders her/his decision after considering any submission made by the other parties”.

69. According to Article 57 (1) of the FIFA Statutes, appeals “shall be lodged with CAS within 21 days of notification of the decision in question”.

70. FIFA notified the grounds of the Appealed Decision on 5 September 2022. The Appellant lodged the Statement of Appeal with CAS on 26 September 2022, i.e., within the 21 days allotted under Article 57 (1) of the FIFA Statutes. The Statement of Appeal also complied with the requirements of Articles R47, R48 and R64.1 of the CAS Code, including the payment of the CAS Court Office fee.

71. The admissibility of this appeal is further not contested by any of the Parties. It follows that the appeal is admissible.

VII. APPLICABLE LAW

72. A distinction between the lex arbitri (the arbitration law at the seat of arbitration) and the lex causae (the law applicable to the merits) has to be made first: “[w]hereas procedural issues are governed by the law of the seat of the arbitration, i.e. Switzerland, the law applicable to the merits of the dispute depends on the applicable conflict of law rules” (CAS 2017/A/5465, paragraph 69).

73. CAS has its seat in Lausanne, Switzerland and, as such, the Swiss Private International Law Act (“PILA”) is applicable to the present case as lex arbitri. In addition to this, according to Article 176 (1) of the PILA, the provisions of Chapter 12 apply since this is an international arbitration and only FIFA is based in Switzerland.

74. The lex arbitri’s conflict of laws provisions are then used to determine the law applicable to the merits. As such, according to Article 187 (1) of the PILA, “[t]he arbitral tribunal shall decide the dispute according to the rules of law chosen by the parties or, in the absence of such a choice, according to the rules of law with which the case has the closest connection”.

75. There is no doubt that by submitting themselves to the CAS, not contesting directly its jurisdiction and by signing the Order of Procedure, the Parties have made an implicit agreement as to the applicable procedural rules, accepting the CAS Code. However, by doing this, the Parties also accept the conflict of laws rules contained in the CAS Code, in particular its Article

76. Article R58 CAS 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”.

77. With regards to the interpretation of the above-mentioned provisions, the Panel concurs with the standing jurisprudence of the CAS as evidenced in CAS 2017/A/5374; CAS 2018/A/5624; CAS 2017/A/5465 and others: “Like Art. 187 (1) of the PILA, Art. R58 of the CAS Code also distinguishes between whether or not the parties have made a choice of law. In the absence of a choice of law, Art. R58 of the CAS Code stipulates that the Panel shall apply ‘the law of the country in which the federation, association or sport-related body which has issued the challenged decision is domiciled or according to the rules of law the Panel deems appropriate’. This approach is basically no different from the closest connection test provided for in the second alternative of Art. 187 (1) of the PILA. To this extent the two provisions are almost identical. In the event that the parties have made a choice of law, however, the question of law is different, since in this regard Art. R58 of the CAS Code stipulates that this choice of law is relevant only ‘subsidiarily’. Consequently Art. R58 of the CAS Code serves to restrict the autonomy of the parties, since even where a choice of law has been made, the ‘applicable regulations’ are primarily applied, irrespective of the will of the parties. These are the (autonomous) rules of the association that made the first-instance decision that is being contested in the appeals arbitration procedure. Since in football-related disputes this is the FIFA, under Art. R58 of the CAS Code – regardless of the parties' choice of law – the rules and regulations of FIFA apply accordingly” (HAAS U., Applicable law in football-related disputes: The relationship between the CAS Code, the FIFA Statutes and the agreement of the parties on the application of national law, in CAS Bulletin 2015/2, p. 11).

78. Considering that Article R58 of the CAS Code clearly intends to curtail the Parties’ autonomy with regard to the choice of law in appeal arbitration proceedings, the Panel is of the opinion that “[t]he correct view is that the CAS case law is to be followed, whereby the implicit reference to Art. R58 of the CAS Code takes precedence over an explicit choice of law by the parties” (Idem, page 12).

79. As a result, it is clear that “(...) any choice of law made by the parties does not prevail over Art. R58 of the CAS Code, but is to be considered only within the framework of Art. R58 of the CAS Code and consequently affects only the subsidiarily applicable law” (Idem, page 13).

80. Article 57(2) FIFA Statutes provides the following:

“The provisions of the CAS Code of Sports-related Arbitration shall apply to the proceedings. CAS shall primarily apply the various regulations of FIFA and, additionally, Swiss law”.

81. The Panel also adheres to the findings of the panel in CAS 2017/A/5111 (para 85):

“Article R58 provides that the dispute shall be decided first and foremost according to the ‘applicable regulations’. These ‘regulations’ shall be applied irrespectively of the will of the parties. The term ‘applicable regulations’ within the meaning of Article R58 CAS Code refers to the rules of the association that made the first-instance decision which is being contested in the appeals arbitration procedure (CAS 2014/A/3626, no. 76: ‘… in the present case the ‘applicable regulations’ for the purpose of Article R58 of the Code are, indisputably, the FIFA’s regulations, because the appeal is directed against a decision issued by FIFA …’)”.

82. Therefore, the Panel finds that Article 57(2) FIFA Statutes applies. In accordance with this provision, the regulations of FIFA are primarily applicable and, if necessary, additionally, Swiss law.

83. However, the Appellant also requests that, in accordance with Article 7 of the Third Employment Contract, additionally to FIFA Regulations and Swiss Law, in matters not addressed in the FIFA Regulations, the Thai Law shall be applied.

84. Indeed, the Panel observes that in its statements before FIFA DRC and before CAS, the Appellant relied on FIFA Regulations on Status and Transfer of Players, on Thai and Swiss laws.

85. Therefore, and in view of the specific circumstances of this case, respective legislative acts will be referred to by the Panel, where relevant for the merits of this case, as follows from the below discussion on the merits, additionally to FIFA Regulations and Swiss law.

86. The Panel cannot ignore the Parties’ choice made in Clause 7 of the Third Employment Contract and, as a result, must limit the applicability of Swiss Law prescribed by the FIFA Statutes to the interpretation of the relevant provisions of relevant FIFA regulations (such as the RSTP). This conclusion is in line with the aforementioned jurisprudence of CAS Panels (see, among other, CAS 2018/A/5624 par. 58, 59, CAS 2017/A/5465 par. 73-81):

“(...) the reference to the ‘additionally’ applicable Swiss law is merely intended to clarify that the RSTP are based on a normatively shaped preconception, which derives from having a look at Swiss law. Consequently, the purpose of the reference to Swiss law in Art. 66 (2) of the FIFA Statutes is to ensure the uniform interpretation of the standards of the industry. Under Art. 66 (2) of the FIFA Statutes, however, issues that are not governed by the RSTP should not be subject to Swiss law. Swiss law does govern, for example, the question of methodology as to FIFA rules and regulations (including the RSTP) should be interpreted or how, in event of a conflict, one should proceed when faced with a choice between a subordinate set of an association's rules and regulations (e.g. the RSTP) and a superordinate one (e.g. the FIFA Statutes). (HAAS U., Applicable law in football-related disputes: The relationship between the CAS Code, the FIFA Statutes and the agreement of the parties on the application of national law, in CAS Bulletin 2015/2, p. 15)”.

87. In summary, the Panel shall primarily apply all the relevant FIFA regulations, combined with Swiss Law wherever interpretation of such provisions is needed; subsidiarily, the Panel has to apply the relevant provisions envisaged by the Parties in Clause 7 of the Third Employment Contract considering the matter at stake.

88. As to the question of which version/edition of the RSTP is applicable, the Panel notes that the facts at the heart of the dispute occurred in May 2021 (the termination date) and, as such, the January 2021 RSTP edition is the one applicable.

VIII. MERITS — A. Preliminary issues

a. Admissibility of the documents submitted by the Appellant on 12 April 2023

89. As mentioned in paragraph 49 above, on 12 April 2023, the Appellant sent to the CAS Court Office new pieces of evidence requesting their admission into the case file, namely CAS & Football Annual Report published by FIFA on 22 February 2023 on its website and the CAS Award rendered in the case CAS 2020/A/7382, to which the said Report referred, which award was published by FIFA on its website on 28 September 2022.

90. The Panel invited both Respondents to comment on such a request – the First Respondent objected to this request, stating that it was filed late considering that the Report was available since 22 February 2023 and that, in addition, CAS jurisprudence does not need to be admitted to the case file. The Second Respondent remained silent on the issue.

91. On 19 April 2023, the Parties were informed that the Panel has decided to admit both documents. In deciding so, the Panel has considered (a) that both documents are publicly available, (b) that they both are not belonging to the factual materials of the case and (c) that the CAS award is in line with the Appellant’s argumentation in its Appeal Brief. Obviously, the Appellant should have been more scrupulous and could have reasonably discovered the CAS Award well before submitting its Appeal Brief, however FIFA did not object to the admission of the said documents (content of which is well known to it) and the Player stated that the CAS award anyways could be referred to by the Appellant without the need to be admitted to the file.

92. Therefore, the Panel concluded that admission of these two documents to the file would not take any of the Parties by surprise and, thus, would not violate their right to be heard.

b. Appellant’s objection to the FIFA DRC jurisdiction

93. The Panel, initially, notes, that the Appellant during FIFA DRC proceedings and in its appeal to CAS maintains that FIFA DRC was not competent to rule on the dispute between the parties to the Third Employment Contract, the Club and the Player. This is a threshold matter to be resolved by the Panel in these proceedings. If the Panel decides that FIFA had no jurisdiction over the dispute – the Appealed Decision shall be cancelled, and the claim of the Player pronounced inadmissible.

94. The Panel initially notes that it is not disputed by the parties to these proceedings that a new clause: “Governing Law” was inserted into Article 7 of the Player’s Third Employment Contract (quoted in para 7 of this award), which, according to the Club, conferred jurisdiction over any disputes between the Club and the Player to Thai courts with applicability to the relevant proceedings of Thai law.

95. However, the Player argues that the said clause allegedly in favour of Thai courts and Thai law was inserted into his Third Employment contract without his knowledge in abuse of the Club’s powers, that it has never been discussed with him. He argues that he was not assisted by anybody (an agent or a lawyer) during the negotiations and signing of his Third Employment Contract and did not pay attention to this clause because he has no legal knowledge and his main concern were personal conditions, namely the financial remuneration and airline tickets for his family; his understanding was that the remaining provisions of the draft were without change as this was the mere renewal of his second employment contract, moreover visibly the draft was exactly the same as the second employment contract.

96. During the hearing Mr. Piyasak Bhumichitra, former Club’s CEO, who is a lawyer, practicing in Thailand, clarified that when he was hired by the Club in September 2018, his task was to amend and improve the Club’s legal documents, including employment contracts. He stated that it was him who included the choice of court/choice of law clause in favour of Thai courts, as in the Third Employment Contract of the Player, to the employment contracts of all players hired by the Club as a new standard clause. He could not recall having spoken with the Player regarding this clause explaining him its meaning, however stated that all players had accepted it because their main concern were “the numbers”.

97. The Panel, having heard Mr. Bhumichitra, understands that such a clause was inserted without distinction to all employment contracts, i. e. of players-nationals and players-foreigners, including the Player.

98. Having considered the arguments put forward by the Player as to the circumstances around him signing the Third Employment Contract, the Panel concludes that the Player did not prove by any means that he was somehow prevented from being assisted by an agent and/or a legal adviser – during the hearing he stated that he at all times had and has the possibility to ask for assistance from his (now former) football agents, namely “You First Sport Agency”, even in absence of any agency contract signed with them; there is nothing on the file suggesting that he was somehow prevented from reading the draft of the Third Employment Contract before signing it.

99. The Player, as it appears from the documents, available to the Panel on the file, was satisfied with being locally assisted by Mr. Manny, a Thailand-based football agent of Spanish origin, who was the person initially bringing the Player to the attention of the Club in 2015. There is nothing on the file suggesting that the Player ever complained to the Club regarding Mr. Manny’s behaviour or required Mr. Manny to change the way he was assisting the Player in his needs. Only after the dispute arose the Player started complaining about Mr. Manny being in reality the representative of the Club who was acting in its favor.

100. Further, the Panel notes, there is nothing on the file demonstrating that the Player, who complains in his written submissions about alleged constant abusive behaviour of the Club since 2015 (namely not returning timely his contracts and their attachments signed, keeping contact only via messengers), has ever tried to offer to the Club to have another channel of communication beside messengers (e.g. email, official mail etc.) if he felt, as he complains, uncomfortable and unprotected in communicating with the Club’s representatives via different

messengers only. He has never complained to the Club in writing that he was unsatisfied with the way he was treated, especially so while signing vital documents (three employment contracts, their attachments and the Extension of the last employment contract).

101. Having considered the above, the Panel emphasizes that a party signing a contract, as a general rule, does so on its own responsibility. The Player is not a newcomer to the world of football, he was 33 years old at the time of the relevant events, he had all the possibilities to ask for assistance from his agents and lawyers, but did not do so before signing his Third Employment Contract as he, for example, did when decided to sign this same contract extension – he had “consulted his advisers”.

102. Thus, all reproaches of the Player regarding his unfavourable position based on lack of understanding of the meaning of the clause in Article 7 of the Third Employment Contract are without grounds.

103. The Panel further notes that the Club and the Player have devoted significant parts of their respective written submissions to the question of the validity of the choice of court clause inserted into Article 7 of the Third Employment Contract.

104. The Panel, however, is of the opinion that this issue can be left open and it will therefore not analyse relevant ample arguments put forward by the Club and the Player in their respective written submissions and during the hearing for the following reasons.

105. First and foremost, the Panel considers Article 7 of the Third Employment Contract to be a combined choice-of-court/choice of law clause and furthermore observes that there is abundant CAS jurisprudence on the validity of similar choice-of-court/choice of law clauses. However, this case is a very particular one and stands on its own. In this case the Club and the Player, having agreed on a choice-of-court /choice of law clause, afterwards acted in a contradictory manner and their dispute, as result of this contradictory behaviour, was brought before FIFA. That is why an interpretation of the parties’ real intention is needed.

106. In this regard the Panel wishes to quote another CAS award, where it is stated: “Even in case the terms used in a contract have a clear literal (i.e. unambiguous) meaning, the adjudicatory body must assess whether or not the parties truly wished to attribute such meaning to the terms used. The view held here is also backed by legal literature (BK-OR I/WIEGAND, Art. 18 N. 25). Article 18 SCO prohibits an ‘interpretation by means of letters’ (Verbot der reinen ‘Buchstabenauslegung’, cf. SFT 131 III 287, see also OR I/WIEGAND, Art. 18 N. 25 and 37 with further references). Only in the very limited circumstances in which there are no objective grounds to think that the plain text does not reflect the parties’ will, there is no reason to depart from it (SFT 136 III 188 E. 3.2.1; BK-OR I/WIEGAND, Art. 18 N. 25). Doubts that the wording used by the parties in the contract truly reflects their will may arise from a multitude of different circumstances, such as the drafting history of the agreement, its purpose or the overall content of the contract” (see

107. It is not in dispute among the Club and the Player that their relationship is of contractual nature. Therefore, Article 7 of the Third Employment Contract is to be interpreted according to the general rules of interpretation of contracts under Swiss law, applicable to the merits of the case.

108. Article 18 (1) of the SCO, states as follows: “When assessing the form and terms of a contract, the true and common intention of the parties must be ascertained without dwelling on any inexact expressions or designations they may have used either in error or by way of disguising the true nature of the agreement”.

109. Whether the choice of court clause of the Third Employment contract has been agreed must be determined objectively on the impression given by the parties’ words and actions. According

“In order to establish whether a contract has been entered into, …, the judge must interpret the parties’ declarations of intent. At first, he must seek to discover the true and mutually agreed upon intention of the parties, if necessary empirically, on the basis of circumstantial evidence (Decision of the Swiss Federal Tribunal,4A_155/2017, 12 October 2017, consid. 2.3; ATF 132 III 268 consid. 2.3.2, 131 III 606 consid. 4.1). To be taken into account are the content of the statements made – whether they are written or oral - and also the general context, i.e. all the circumstances, which could give an indication as to the real intention of the parties. Also relevant are the statements made prior to the conclusion of the contract as well as the subsequent events and conduct of the parties (ATF 118 II 365 consid. 1, 112 II 337 consid. 4a). The judge must assess the situation according to his general experience of life (ATF 118 II 365 consid. 1 and references).

When the mutually agreed real intention of the parties cannot be established, the contract must be interpreted according to the requirements of good faith (ATF 129 III 664; 128 III 419 consid. 2.2 p. 422). The judge has to seek to determine how a declaration or an external manifestation by a party could have been reasonably understood depending on the individual circumstances of the case (ATF 129 III 118 consid. 2.5 p. 122; 128 III 419 consid. 2.2 p. 422). The requirements of good faith tend to give the preference to a more objective approach. The emphasis is not so much on what a party may have meant but on how a reasonable man would have understood its declaration (ATF 129 III 118 consid. 2.5 p. 122; 128 III 419 consid. 2.2 p. 422)”.

110. In interpreting the true intention of the parties to the Third Employment Contract, the Panel, in this particular case, has the possibility to analyse two previous employment contracts, concluded between the same parties in 2015 and 2017 and, what is more important, the behaviour of the Club and the Player after signing the Third Employment Contract i.e. the drafting history of the agreement, its purpose or the overall content of the contract.

111. Thus, the Panel observes that the First Employment Contract of the Player did not contain any choice of court or choice of law clause. This is not disputed by the Parties as well as that in case any dispute would have arisen between the Club and the Player, Article 22 (b) of the FIFA RSTP would have been applicable by default, it states as follows:

“22. Competence of FIFA

Without prejudice to the right of any player or club to seek redress before a civil court for employment-related disputes, FIFA is competent to hear:

a) […]

b) employment-related disputes between a club and a player of an international dimension; the aforementioned parties may, however, explicitly opt in writing for such disputes to be decided by an independent arbitration tribunal that has been established at national level within the framework of the association and/or a collective bargaining agreement. Any such arbitration clause must be included either directly in the contract or in a collective bargaining agreement applicable on the parties. The independent national arbitration tribunal must guarantee fair proceedings and respect the principle of equal representation of players and clubs; […]”.

112. Therefore, FIFA always maintains “default” competence to hear disputes of an international dimension (like in this case) between clubs and players, unless the competence to resolve such disputes is assigned by the parties to an employment contract to an independent national arbitration tribunal or national courts.

113. The Second Employment Contract of the Player contained choice of court and choice of law clause in Article 13 (quoted in para 6 of this award), and it exclusively provided for FIFA jurisdiction and applicability of FIFA Regulations, and subsidiary Swiss law, in case of any disputes between the Club and the Player. CAS was nominated as only appeal instance, English language was chosen as the language of the proceedings.

114. Therefore, there is no doubt that also in this second contract, FIFA was nominated as the forum for dispute resolution and its regulations would have been applicable.

115. Regarding the Third Employment Contract the Panel initially observes that beside Article 7, there is no mention of any Thai law provisions (as well as there is none in the two previous contracts), which normally would be the case in an employment contract – regarding e.g. vacation, termination (and any compensation in case is unlawful), rights and obligations of the parties etc.

116. The Parties had no opportunity to test the applicability of the choice of court/choice of law clause until 20 April 2021, when an authorisation for the Player to look for another Club was signed by the Player and the Club. Even if they both admit that this document was drafted by the Player’s team of lawyers and agents and referred to FIFA, AFC or FA of Thailand Regulations only, the Panel notes that there is no evidence that the Club was prevented from amending it, adding relevant provisions of Thai law or re-drafting the document entirely, cancelling any reference to FIFA Regulations. Nevertheless, it did not do so and just signed the document without reservations. Already at this stage it appeared that neither the Player nor the Club was relying on Thai law. It strikes the Panel that on behalf of the Club this Authorisation was signed by Mr. Bhumichitra.

117. The Panel further notes that when the dispute regarding the Third Employment Contract Extension arose, on 17 May 2021 [the Panel understands that there is a typo on the Power of Attorney, mentioning 17 May 2020, because on that date there was no dispute between the Club and the Player] the Club hired a law firm specialized in sports law and dispute resolution within sport jurisdiction (namely FIFA and CAS), based in Europe, and authorised such a law firm to represent it, first and foremost, “before FIFA judicial bodies, Court of Arbitration for Sports […] or other judicial

institution and/or any other form of settlement negotiations in relation to the dispute” with the Player. Again, neither Thai courts nor Thai law were mentioned.

118. It appears self-speaking to the Panel that no Thai law firm was hired either alone or together with the other one, and that there is no mention of Thai courts and/or Thai law in the Power of Attorney issued by the Club and signed on its behalf, again, by Mr. Bhumichitra, who was the author of and the person who inserted the choice of court/choice of law clause into the Third Employment contract of the Player.

119. Further, the Panel concurs with the Respondents as to the following indicators of the real intention of the Club and the Player:

120. Indeed, it appears entirely implausible that the Player would consciously opt out of FIFA dispute resolution system in favour of Thai courts and Thai law – he is Spanish, does not speak Thai language, had no lawyers or agents from Thailand who could have potentially helped him had any problem occurred, to proceed in accordance with Thai law in local courts. Beside unsubstantiated statements of the Appellant made in its written submission, nothing on the file suggests that the Player had any other ties with Thailand beside his, obviously temporary, work in the Club.

121. The hired law firm, on behalf of the Club, made the first step by addressing an official letter to the Player dated 25 May 2021, where with regard the dispute between the parties it referred only to FIFA and CAS jurisprudence (obviously based on FIFA regulations and Swiss law) and FIFA Procedural Rules (Article 12) regarding the burden of proof. Neither Thai courts, nor Thai law were mentioned at least en passant. Further, the draft Mutual Termination Agreement, attached to this letter, to be signed by the Player, did not contain any reference to Thai law either.

122. In his response dated 1 June 2021, the Player and his legal team also referred to FIFA regulations (Article 18 RSTP), FIFA and CAS jurisprudence, alerting the Club that they would bring the dispute to the attention of the relevant FIFA judicial body. At this point in time it appears that the only conclusion any reasonable man could have made is that both parties had renounced to apply Article 7 of the Third Employment Contract.

123. Further on, in its second letter to the Player dated 16 June 2021, the Club again referred to FIFA DRC and CAS jurisprudence, and the FIFA Procedural Rules (Article 12) regarding the burden of proof. Thai Law was finally mentioned in two instances as follows: “8. […] We hereby request you to return the car to the Club within the next 5 days as the employment relationship ended. Please note that the car is not your property, and any intention to keep the car under your possession will be considered a breach of Thai law. […] 10. In case you remain of the opinion that our client did not act in accordance with applicable laws of Thailand, […] we will be notified with a copy of your claims before the competent court”. The last paragraph of the letter stated: “This letter is sent to you without prejudice and under reservation of all rights and our client leaves all possibilities open to start proceedings against the Player if necessary” – again, without mentioning any specific provision of Thai law or the court where the Club would possibly bring its claim, nothing pertinent to the employment relationships.

124. In his reply to this letter, dated 6 July 2021, the Player maintained that initially it was the Club who referred to FIFA and CAS jurisprudence and that he was going to bring his claim to FIFA DRC, which would be competent to resolve the dispute between the parties.

125. In its last letter to the Player dated 27 July 2021, before the proceedings in FIFA DRC were commenced by the Player, the Club stated, inter alia, as follows: “[…] we are quite surprised by your sudden reference to involving FIFA DRC in this matter. As per explicit player contract, we strongly suggest you to follow the exclusive grievance procedures as stipulated under Article 7 of the employment contract to assure that the dispute will be looked at by the competent bodies under the competent laws to find a solution suitable for all involved”.

126. The Panel again notes that even in this letter no specific provision of Thai law was mentioned, no specific Thai court was referred to either. And it is only in this letter that the Club, in total contradiction to its initial position, changed its stance as to the applicable law and the forum, competent to adjudicate the dispute between the parties. The Panel considers this behaviour of the Club as acting in bad faith.

127. The letters of the Club must be interpreted as giving a legitimate understanding to the Player that their relationships are governed by FIFA Regulations and, therefore, the disputes between them shall be resolved by FIFA. No other interpretation to the Club’s letters was possible, their language was clear and explicit. Should it be deemed unclear, the principle of “in dubio contra stipulatorem” applies, it requires any ambiguity to be resolved against the stipulator, the author of the clause, who was the one who had the power and the duty to proceed in accordance with its prescription.

128. Relying on the Club’s behaviour, the Player in good faith understood that he could have brought the dispute between the parties to the FIFA DRC and did so, relying on FIFA Regulations. Only in its reply to the Player’s claim to FIFA the Club started claiming applicability of Article 7 of the Third Employment Contract, denying its own previous behaviour. However, it still did not rely on provisions of Thai law in that reply to the Player’s claim, it still relied on FIFA Regulations and FIFA/CAS jurisprudence, claiming that the clause inserted in Article 7 of the Third Employment Contract was valid and that it was the Player, the party who breached the contract.

129. The statements of the Club, justifying it referencing FIFA Regulations and FIFA/CAS jurisprudence as those regulations and jurisprudence which could have allegedly been applied by Thai courts, are not proven by any legal provision taken from any Thai law – for example, the Appellant could have referred to a law, regulating sport movement and sport relationship in Thailand, as lex specialis, where it is stated, that the local courts must apply or, at least, consider, the regulations adopted by international sport federations together or instead of the national law. This alleged possibility was not explored properly not only by the lawyers hired by the Appellant, but also by the legal expert, who was called to make analysis only of the choice of court clause of the Third Employment Contract based, inter alia, on Thai law. Moreover, during the hearing Mr. Bhumichitra stated that Thai courts would never apply FIFA Regulations, because such a possibility is not conferred by any national law, but would apply national laws

only. Therefore, the Panel finds such statements ungrounded and concludes that reliance on FIFA regulations by the Club also speaks in favour of its intention to retain FIFA jurisdiction.

130. Finally, when the Club appealed the FIFA DRC decision to CAS, in its Appeal Brief it relied on Thai Law only with regard to (i) the validity of the choice of court clause, referring to the Expert opinion, (ii) the duty of a club and a player to conclude employment contracts in writing and the consequences applicable for not doing so - two provisions from Professional Sports Promotion Act B.E. 2556 (2013) were quoted, and further two provisions of Thai Civil and Commercial Code, regulating agency relationship, were additionally quoted.

131. The Panel, however, observes that none of those legal provisions are pertinent to the employment dispute between the Player and the Club. The Appeal Brief principally refers to FIFA Regulations, CAS jurisprudence and Swiss law, especially so with regards to the conclusion of contracts, when the Appellant objects to the validity of the Extension and pertinent negotiations process outcome.

132. Further, the Panel finds it self-speaking that no Thai legal expert was involved in this case, but an expert in International Private Law, again, from Europe, who relied on legal instruments, not applicable in Thailand, by analogy.

133. The Panel found the Expert opinion on validity of the choice of court provisions inconclusive, because no provision of Thai law on validity of the choice of court provisions was actually analysed since the relevant article of the Thai civil procedure rules was abolished in 1991; the Thai Supreme Court decision which was analysed by the expert dated 2003, however, was not pertinent to the employment relationships; the Expert’s opinion was narrowed only to the analysis of the choice of court provision, it did not analyse at all the behaviour of the parties subsequent to the Third Employment Contract conclusion and two previous employment contracts concluded between the Player and the Club, scrutinised under Thai law.

134. Notably, the legal expert, called by the Club, did not argue the validity of the choice-of-forum clause inserted into the Second Employment Contract of the Player in favor of FIFA and CAS. Thus, the Panel concludes that both clauses would be equally valid according to his opinion, because they were inserted into different contracts based on the same applicable Thai legal framework, analysed by the expert.

135. Having listed all the above elements, that the Panel considers important, it concludes that by their, subsequent to the signature of the Third Employment Contract behaviour, the Parties opted out of their agreement regarding their previous choice of court. By their express behaviour, which prompted the Panel to the interpretation of the contractual clause, the Club (who, the Panel observes, was the drafter of the Third Employment Contract and after was the first party who started the correspondence exchange regarding the dispute as to the contract extension and its premature termination), and afterwards the Player, have demonstrated that their subjective will, their real intention, at the time when the dispute arose, was to submit their dispute to the sport adjudicating bodies, namely FIFA and CAS, notwithstanding the wording of Article 7 of the Third Employment Contract.

136. Therefore, the Panel concludes that FIFA has rightfully accepted the jurisdiction over the dispute between the Club and the Player.

B. The Main Issues

137. Having concluded that FIFA had jurisdiction over the dispute, the Panel now turns its attention to the merits of this dispute. In this regard, the Panel observes that the main issues it is called to resolve by the Player and the Club in this case are:

i. Was the Third Employment Contract concluded on 28 October 2019 extended in December 2020 for another two seasons?

ii. Which party to the Third Employment Contract concluded on 28 October 2019 terminated it and was there a just cause to do so?

iii. What are the consequences of the Third Employment Contract termination, if any?

i. Was the Third Employment Contract concluded on 28 October 2019 extended in December 2020 for another two seasons?

138. The Player and the Club are in disagreement as to the Player’s Third Employment Contract Extension. While the Club argues that it was not extended because the parties to it did not agree on its essential conditions and it was not signed by the Club, the Player argues that his employment contract was validly extended because he signed the Extension offered and drafted by the Club.

139. In order to answer this question, the Panel starts its analysis by explaining its understanding of how the communication flow between the Club and the Player was functioning since the Player joined the Club in 2015.

140. Thus, it is established by the Panel based on written submissions and personal testimonies during the hearing, given by the Club representatives and the Player, that the Player throughout his employment in the Club was in constant contact with at least four persons, representing the Club, in order to organise his daily life in Thailand and smooth performance of his employment duties: (i) Mr. Manny – a Thai based football agent of Spanish origin, who was in contact with the Player for the purpose of signing and extending his employment contracts, acting as an intermediary between the Club’s management and the Player in their negotiation process, as of 2015; (ii) Mr. Kevin, a translator, hired by the Club, to facilitate daily communication with the foreign players and Thai staff of the Club, e.g. regarding the training process; (iii) Ms. Noi, who was responsible for visa questions and tax payments’ documentation for foreign players, (iv) Mr. Samai Seeyango or Mr. K – assistant of Mr. Bhumichitra, CEO of the Club at the time of the relevant events, who was responsible for daily logistic inside the team, responsible for communication flow between the players, team staff, including coaches and doctors, and the management of the Club, namely Mr. Bhumichitra and the president of the Club, Mr. Pavin Bhiromhakdi.

141. Notably, in their messages sent to the Player, Mr. Manny and Mr. Seeyango constantly referred to “them”, while discussing contracts’ conclusion and any discussion of their conditions, the Player also asked these two persons to speak or pass his request “to them”, to clarify with “them” etc. – which brings the Panel to the conclusion that Mr. Manny and Mr. Seeyango were not the persons making any binding decisions on behalf of the Club, but mere intermediaries between the Player and the Club’s CEO and president. From these exchanges it appears that the Player had clear understanding of how the hierarchy worked.

142. While analysing the way the communication and decision-making process was organised in the Club, the Panel observes that it is not disputed by the Player and the Club that there were no direct contacts between the Player and the management of the Club unless they met for signing employment contracts or their extensions.

143. Having explained the communication flow, the Panel now turns to analyse the sequence of events which took place in December 2020, pertinent to the alleged Third Employment Contract extension. It is not disputed by the Player and the Club that some time in December 2020 they started discussing possible extension of the Player’s Third Employment Contract for another two seasons, until 30 April 2023.

144. On 9 December 2020, a meeting between the Player, Mr. Manny, Mr. Seeyango, the president and the CEO of the Club took place, during which the possible extension of the employment relationship was discussed in more details.

145. On 15 December 2020, Mr. Seeyango, via messenger Line, wrote to the Player inviting him to come for a second meeting in the afternoon of the same day in order to sign the Extension. He mentioned that Mr. Manny would be present too. However, since the Player was informed about the meeting gathering only at the last minute and did not have time to familiarize himself with the text of the Extension that he was called to sign yet, the Player refused to come for the meeting and sign the Extension. One hour later, Mr. Seeyango forwarded to the Player via Line a document named “Attachment to Extend Contract season 2021-2023_Toti_final”.

146. Four hours later, the Player requested Mr. K to “Add some Sign Fee in 2022 and make clear airfare (5 tickets each year. 2021/2022/2023). With this I could sign”.

147. On 16 December 2020, Mr. Seeyango sent a reply to the Player as an emoji – a man giving a military salute, which the Panel understands meant “Yes, sir”.

148. On Friday 18 December 2020, however, the Player, after having consulted his family and advisers, informed Mr. Seeyango that he was ready to sign the Extension as drafted by the Club, to what Mr. Seeyango responded with an “OKAY” emoji.

149. It is this “OKAY” response which is disputed by the Club and the Player – whereas the Club insists that Mr. Seeyango has no power to bind the Club and this informal “Ok” meant only that he would have passed the Player’s decision on to the management of the Club, the Player insists that by this response Mr. Seeyango, on behalf of the Club, confirmed that the Extension was validly concluded.

150. On Saturday 19 December 2020, the Player wrote to Mr. Seeyango asking to organise a meeting with the Club’s CEO and Club’s president in order to “finalise everything and make everything clear of misunderstanding and my communication”.

151. On Sunday 20 December 2020, Mr. Seeyango informed the Player that the president of the Club told him that the negotiations regarding the extension would resume at his return from loan, in April 2021. Later on the same day, the Player returned the duly signed Extension to Mr. Seeyango.

152. The Club argues that, by requesting addition of Signing Fee the Player refused the initial offer made by the Club and made to the Club a counter-offer, thus automatically invalidating the Club’s initial offer, which was not re-validated by the change of stance of the Player and his subsequent signature of the Extension in its original, drafted by the Club, version. To support this position, the Club relies on Article 1(1) of the SCO, which provides as follows: “The conclusion of a contract requires a mutual expression of intent by the parties”.

153. Regarding the “OKAY” emoji sent by Mr. Seeyango to the Player when the latter informed him that he was ready to sign the Extension, the Panel concludes that the Line Messages amounted to informal exchanges which held no clearly identifiable expressions of intentions, and did not bind the Club in any way. Moreover, Mr. Seeyango did not indeed have any legal capacity to bind the Club. Accordingly, his emoji message does not have any legal binding effect, i.e. it is not a confirmation that the Club had accepted to sign the Extension at that moment of time. That message was a mere confirmation that the Player’s decision would be communicated to the Club’s management. It appears from the Player’s next message, requesting another meeting with the Club’s management, that he had the same understanding that Mr. Seeyango was not the person making any binding decisions on behalf of the Club – the Player had the intention to have further discussions with the Club’s CEO and president, not with Mr. Seeyango.

154. Moreover, the Panel understands from the message exchange between Mr. Seeyango and the Player, subsequent to the Player’s decision to sign the Extension, that the Player required further discussion on the conditions of the Extension with the President and CEO of the Club because he realized that the agreement was not in fact concluded, and he was informed by Mr. Seeyango three times that the president of the Club had decided to continue negotiations regarding the Extension after the Player’s return from loan, i.e. at the end of April 2021.

155. The Panel further observes that the Player went on loan in December 2020 and that, until the dispute between him and the Club which arose in the end of May 2021 as to the validity of the Extension and premature termination of his Third Employment Contract, he never came back to Mr. Seeyango requesting him to arrange a meeting regarding the Extension (as agreed in December 2020) or requested that the document signed by the Club be returned to him. They only discussed the organization of the training process after his return from loan.

156. Having analysed the communication flow established in the Club and the sequence of events and communication between Mr. Seeyango and the Player in December 2020, which all point

to a non-conclusion of the Extension de-facto, the Panel now turns its attention to the legal framework, i.e. to analysis of the same facts de-jure.

157. The Panel observes that the Appellant and the First Respondent in their written submissions referred to Swiss law, as applicable law, analysing the validity of an offer and of its acceptance, in order to substantiate their respective contradictory positions. Therefore, the Panel proceeds with its analysis based on Swiss Law applicable to the matter.

158. Thus, in accordance with Article 1 of the SCO: “The conclusion of a contract requires a mutual expression of intent by the parties”.

159. Further, the Panel observes, that “An agreement is a bilateral juridical act which implies the exchange of at least two expresssions of intent, being it neccessary that each party lets the other know, with all the precision required, that it wants to provoke a certain legal effect. An offer is not enough to provoke the legal effect described by the offeror, as the contract is only considered concluded if three supplementary pre-requisites are met: acceptance, reciprocity and concordance” (see CAS 2020/A/6867, paragraph 72, referring to THEVENOZ/WERRO, Code des obligations I, Art 1-529 CO, 2nd ed., Basle 2017, Art. 1 N 78 & 84).

160. The execution of a contract requires two concurrent declarations of intent, i.e. an offer by one party and an acceptance by the other party. Furthermore, the declarations of intent must be corresponding in order for there to be a valid contract (see CAS 2016/A/4697, paragraph 84).

161. Having studied the Extension document drafted by the Club, the Panel observes that it contained a valid offer, with all essential elements present. Had the Player signed it upon receipt and without any further comments/requests to the Club, this would have counted as unconditional acceptance.

162. However, it is not in dispute by the Player and the Club that, on the same day that the Club sent the draft Extension to the Player to sign, i.e. 15 December 2020, he, rather than saying that the offer had been accepted, decided not to sign it and requested a sign-on fee for the 2022 season.

163. Article 2 of the SCO states as follows: “Where the parties have agreed on all the essential terms, it is presumed that the contract will be binding notwithstanding any reservation on secondary terms”. Based on this Article, the Player argues that his demand was a pure clarification request, i. e. was a secondary term, which could have not been perceived by the Club as refusal to sign the Extension.

164. The Panel, however, disagrees. The sign-on fee belongs to the essential terms of the agreement as it forms part of the remuneration under the employment contract. Therefore, the Panel concurs with the Appellant that the Player actually made a counter-offer, invalidating the initial offer made by the Club, as to one of the essential terms of the future contract.

165. The Panel observes that an offer is no longer to be considered valid and binding if it has been rejected or has been accepted in a manner which does not constitute a full and unconditional accept of the terms offered. Based on the Player’s conduct the offer had lapsed and was no

longer valid and binding. The signing of the Extension by the Player on 20 December 2020 was of no legal effect, as that offer has lapsed as soon as it was refused by the Player.

166. The fact that the initial offer to extend the contract was no longer valid and binding was communicated by Mr. Seeyango, acting at all times as mere intermediary between the Player and the Club’s CEO and the President in passing essential information, in his message to the Player of 20 December 2020, sent hours before the Player had signed and returned to him the Extension. The same was repeated to the Player twice via Line messages. And in fact, the Club did not counter-sign the Extension document.

167. Therefore, the Panel concludes that the Extension was never duly agreed upon by the Player and the Club due to initial refusal by the Player and before his final agreement to accept the primary offer, such offer has lapsed before it was accepted. The Player’s subsequent forwarding of the signed Extension is to be considered a new offer which was never accepted by the Club.

ii. Which party to the Third Employment Contract concluded on 28 October 2019 terminated it and was there a just cause to do so?

168. Having concluded that the Third Employment Contract was not extended, the Panel now turns its attention to determining which party to the Third Employment Contract was at the origin of its premature termination, the original expiration date being 30 November 2021.

169. While the Club argues that the contract was terminated by mutual agreement of the parties, i.e. that it came to the end prematurely because both parties had lost interest in the continuation of their relationship, the Player argues that it was the Club which terminated his employment contract prematurely without just cause.

170. As initial note, the Panel observes that Article 13 of the FIFA RSTP defends the principle of contractual stability by expressly stating that:

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

171. At the same time, the principle of contractual stability is not absolute as Article 14 of the FIFA RSTP provides that:

“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”.

172. In this respect, the Panel considers that the FIFA Commentary on the RSTP (the “FIFA Commentary”), namely to its Article 14, provides further guidance as to when an employment contract is terminated with just cause:

“For a party to have a just cause to terminate the contract, the other party must have ignored or failed to comply with its own contractual obligations […] Whether there is just cause for the early termination of a contract signed between a professional player and a club must be assessed in consideration of all the specific circumstances of the

individual case. […] A contract may only be terminated prior to the expiry of the agreed term where there is a valid reason to do so. In several awards, CAS has drawn a parallel between the concept of ‘just cause’ as defined in article 14 of the Regulations and the concept of ‘good cause’ in article 337(2) of the Swiss Code of Obligations (SCO). Good cause (and thus just cause) to lawfully terminate an employment contract exists when the fundamental terms and conditions which formed the basis of the contractual arrangement are no longer respected by one of the parties. When required to assess whether a valid reason existed for a unilateral contract termination, the following principles should be applied, while considering the specific circumstances of each individual matter:

– Only a sufficiently serious breach of contractual obligations by one party to the contract qualifies as just cause for the other party to terminate the contract. In principle, the breach is considered sufficiently serious when there are objective circumstances that would render it unreasonable to expect the employment relationship between the parties to continue, such as a serious breach of trust.

– The termination of a contract should always be an action of last resort (an ‘ultima ratio’ action)”.

173. The Panel also refers to the relevant provisions of Swiss law, applicable to the interpretation of the FIFA Regulations (CAS 2014/A/3643, paragraph 78; CAS 2008/A/1518, paragraph 59). As such, Article 337 (1) SCO ab initio which applies complementarily, provides that “Both employer and employee may terminate the employment relationship with immediate effect at any time for just cause”.

174. Under Swiss law, such a just cause exists whenever the terminating party can in good faith not be expected to continue the employment relationship (Article 337 (2) SCO). The definition of “just cause”, as well as the question and whether just cause in fact existed, shall be established in accordance with the merits of each particular case (ATF 127 III 153 consid. 1 a). In other words, the event that leads to the immediate termination must so significantly shatter the trust between the parties that a reasonable person could not be expected to continue to work with the other party who is responsible for the just cause (ATF 130 III 28; ATF 116 II 145; ATF 116 II 142; ATF 112 II 41).

175. According to CAS jurisprudence, only material breaches of a contract can possibly be considered as “just cause” for the termination of the latter (CAS 2013/A/3091, 3092 & 3093, paragraph 191; CAS 2006/A/1062).

176. Having carefully studied and analysed the arguments put forward by the Club and the Player, and the documents available on the file, including Line message exchange between the Player and Mr. Seeyango, the Panel finds that the Third Employment Contract was not mutually terminated by its parties because of alleged lack of interest in continuation of their employment relationship.

177. Thus, in December 2020 the Player went on loan to Samutprakarn until the end of April 2021. Two weeks before he was about to return to the Club and to continue performing his obligations under the Third Employment Contract, on 16 April 2021, he was contacted by Kevin, translator of the Club, inviting him to join the training session. The Player, in response, contacted Mr. Seeyango the same day, assuring him that he would be happy to return and train, however mentioning that he was still on loan and would have needed a permission from Samutprakarn to join BGPU.

178. However, in response he was informed by Mr. Seeyango that, according to the “last update from the team” he did not need to show up and had to wait for further instructions.

179. According to the personal testimony given by the Player, on the same day he was informed by Mr. Manny that the Club did not want him any longer and that he had to look for another employment. There is no hard evidence on the file proving this statement (which is also mentioned in the Player’s Answer to the appeal), however during the hearing it was not negated by the Appellant. The Player argues that he immediately asked to be provided with an official authorization to look for another Club.

180. As a matter of fact, on 21 April 2021, the Player signed and forwarded via Line to Mr. Seeyango the Authorisation for him to look for a new employment, requesting it to be sent back to him signed by the Club. The Panel understands that by doing so the Player agreed to continue his career in another Club if he had found one.

181. On 27 April 2021, the Player wrote to Mr. Seeyango via Line again, informing him that he would have to re-join the BGPU team as of 1 May 2021 because his loan was to end on 30 April 2021 and asked him for instructions and a training plan. A pdf file named “BGPU HOME PROGRAM TRAINING” was sent to the Player by Mr. Seeyango on 30 April 2021.

182. On the same day the Player insisted, by sending another message to Mr. Seeyango, that he needed an official document where the Club authorised him to train at home “until we finish out relationship otherwise I have to show myself on Monday [3 May 2021]”. The Player also complained that the said plan did not mention for how many weeks it was to be followed. Mr. Seeyango responded that the plan should be followed for 3 - 4 weeks.

183. Still on the same day, 27 April 2021, Mr. Seeyango came back to the Player again, informing him that due to Covid the Player was required to train at home until 1 June 2021.

184. It is based on this message in conjunction with the Authorisation signed by the Club, valid until 30 June 2021, that the Panel considers that at that moment the Parties indeed were in agreement to mutually terminate the contract had the Player found a new employment by 30 June 2021, failing which the Player intended to perform his employment duties until the end of contract, i.e. until 30 November 2021, and by doing so he demonstrated that he was ready to follow any instructions given by the Club to him.

185. It does not appear from any document on the file that the Player was not content to continue working for the Club or that it was him who wanted to look for a new club or that he refused to train on his own as instructed by the Club. It was the Club who instructed him to train on his own after his return from loan.

186. However, as it comes from further written exchange between the Parties, all of a sudden, while the Player was authorised to be out of the Club’s sphere of control for searching a new employment until 30 June 2021 and additionally, he was officially required by the Club to train alone at home until 1 June 2021, on 25 May 2021 the Club has informed the Player that “[…] Given your actual stance requesting the explicit possibility to look for another employment in

combination with your behaviour during the last months while not providing any services, we understand that you have no interest in pursuing any further employment with [the Club] […] We consider the contractual relationship as (to be considered) tacitly terminated by the parties’ actions and therefore conclude that the employment came to a natural end”.

187. The Panel fails to follow the logic of this letter because there was no “behaviour during the last months” that could possibly count as a misbehaviour by the Player because he was on loan until 30 April 2021 and was actually prevented from returning to the Club by the Club itself, being requested to train alone until 1 June 2021. The Player, instead, with his messages to Mr. Seeyango sent in April 2021, was at all times insisting on performing his contractual obligations.

188. By its next letter dated 16 June 2021 the Club informed the Player that his contract was tacitly terminated allegedly by mutual loss of interest of the Club and the Player and attached a letter from its HR Department where 25 May 2021 was indicated as the date of termination.

189. It is obvious to the Panel that under these circumstances, after having received two official letters from the Club, informing him that his contract was terminated, the Player had no other option than to give back the car (as requested by the Club) and leave Thailand by the end of June 2021. It was obvious to him that the Club would not change its mind and reinstate their employment relationship.

190. The Club even did not bother to inform its national association that the contract of the player was terminated, as the result of which the Thai FA refused an ITC request on 3 September 2021 because according to its knowledge the Player was still under the contract with the Club until 30 November 2021.

191. Therefore, the Panel concludes that the Club terminated the Third Employment Contract of the Player without invoking any just cause.

iii. What are the consequences of the Third Employment Contract termination, if any?

Legal framework

192. The Panel notes that Article 17 (1) of the RSTP provides as follows:

“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.

Bearing in mind the aforementioned principles, compensation due to a player shall be calculated as follows:

i. in case the player did not sign any new contract following the termination of his previous contract, as a general rule, the compensation shall be equal to the residual value of the contract that was prematurely terminated;

ii. in case the player signed a new contract by the time of the decision, the value of the new contract for the period corresponding to the time remaining on the prematurely terminated contract shall be deducted from the residual value of the contract that was terminated early (the ‘Mitigated Compensation’). Furthermore, and subject to the early termination of the contract being due to overdue payables, in addition to the Mitigated Compensation, the player shall be entitled to an amount corresponding to three monthly salaries (the ‘Additional Compensation’). In case of egregious circumstances, the Additional Compensation may be increased up to a maximum of six monthly salaries. The overall compensation may never exceed the rest value of the prematurely terminated contract.

[…]”.

193. The Panel observes that the Player and the Club appear to have deviated from the application of Article 17(1) of the RSTP. Indeed, the parties to a contract of employment are free to agree to an option to unilaterally terminate the said contract without any just cause. This agreement is commonly referred to as a “liquidated damages clause”: in such clause the amount to be paid by the breaching party in the event of a breach and/or of a unilateral, premature termination of the employment contract is established.

194. The so-called liquidated damages clause is inserted in Article 5.3. of the Third Employment Contract. This Article states as follows: “From 1st July 2020, BGPU shall be entitled to terminate this Agreement prematurely with compensation of 3 (three) month salary. The Player agrees that the above net indemnity is just and fair and compensate the damage caused by the Club”.

195. However, the principle of contractual freedom and stability is not absolute. In order for a liquidated damages clause to be valid, essentially three cumulative requirements shall be met: (i) the clause shall be written in a clear and unequivocal manner; (ii) there shall be no evidence of coercion or duress in conclusion of the clause; and (iii) the clause shall not demonstrate excessive commitment by one party that grants the other party undue control. Intervening with the parties’ free will enshrined in a liquidated damages clause should be confined to exceptional cases. This would, in principle, apply in the case of excessive disproportionality i.e., a liquidated damages clause may be incompatible with the general principles of contractual stability and considered null and void if the reciprocal obligations it sets forth actually disproportionately favour one of the parties and gives it an undue control over the other party (see CAS

196. The Panel notes that in the case at hand the amount foreseen by the clause 5.3 of the Third Employment Contract is clearly disproportionate and presents a clear case of an excessive commitment by the Player. The Panel is of the opinion that the clause is excessively favourable towards the Club which in case of breach of the Contract would only be obliged to pay three

monthly salaries to the Player, whereas in case of breach by the Player, the Club would be entitled to the total amount of the contract as per FIFA RSTP, because no reciprocal clause was inserted into the Contract, giving a right to the Player to terminate the Contract prematurely.

197. The Panel agrees with another CAS Panel, who rightfully stated that “A liquidated damages clause that puts the Player entirely at the mercy of the club, because in practice it entitles the club to terminate the employment contract at any moment in time without any valid reasons having to be invoked for the relatively low amount of two monthly salaries cannot be condoned, because the relevant clause is practically in violation of what is determined in Article 14 of the FIFA Regulations on the Status and Transfer of Players (RSTP) and the concept of contractual stability” (see CAS 2016/A/ 4852, CAS 2016/A/ 4875, CAS 2018/A/5771 & 5772).

198. Based on the above, the Panel concludes that Article 5.3 of the Third Employment contract is invalid. Therefore, the compensation for breach of contract to be paid to the Player by the Club is, therefore, to be determined in accordance with Article 17 (1) of the RSTP.

199. Whilst establishing the amount due as compensation, the parties to a contract are normally focusing on the principle of “positive interest” which shall put the injured party in the position it would have had if the contract was performed properly. 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 if no breach had occurred

200. The Panel finds that the legal framework set out above and the principle of positive interest are applicable to the present case. Against this background, the Panel will proceed to assess the Player’s objective damages, before applying its discretion in adjusting this total amount of objective damages to an appropriate amount, if deemed necessary.

201. The Third Employment Contract was terminated on 25 May 2021 and set to expire on 30 November 2021. The remaining remuneration due to the Player was THB 526,316 x 6 as salary for June - November 2021, i.e. THB 3,157,896 gross – this is the total amount of compensation equal to the residual value of the Third Employment Contract, which, in principle, is due to be awarded to the Player as compensation for breach of contract, as this is the salary he would have been entitled to should the Club not have breached the Third Employment Contract.

202. However, as argued by the Club, the Panel notes that it is not in dispute between the Parties that the Player found new employment before the expiry of the Player’s Third Employment Contract with the Club, namely with the Spanish C.D. Guijuelo. The Player’s new employment contract with C.D. Guijuelo is valid from 30 July 2021 until 30 June 2023 (as known to the Panel from open sources). The remuneration due under this contract for the same period as the terminated contract with the Appellant amounts to EUR 1,700 net x 4 (salary for August - November 2021) = EUR 6,800 net.

203. The Panel finds that the Player thereby mitigated his damages and that these earnings should be deducted from the amount of compensation to be awarded by the Panel.

204. The net amount, according to the Third Employment Contract with the Club, due to the Player as its residual value, would be THB 500,000 x 6 = THB 3,000,000, which is equal approximately to EUR 80,077.

205. In the light of the above, the amount to be paid to the Player as compensation for the premature termination of his Third Employment Contract is EUR 73,277 net (EUR 80,077 net – EUR 6,800 net). All amounts in EUR are calculated considering the currency conversion at the date of the decision.

206. Finally, the FIFA DRC awarded interest of 5% p.a. as from 14 March 2022 until the effective date of payment. Before confirming FIFA decision as regards to the date on which the interest shall start running, the Panel has considered the First Respondent’s request, put forward in his Answer to the Appeal Brief, where he requested this interest to be awarded as of the date of the Third Employment Contract termination, namely 25 May 2021 (paragraphs 297 – 299 of the Answer). However, in essence, the Respondent requests for the appeal to be dismissed, respectively for the Appealed Decision to be confirmed in its relevant parts in his final requests for relief on the last page of the Answer.

207. For the sake of clarity and avoidance of any doubt, the Panel cannot entertain the request, put forward in the Answer. The reason for this is that, as is well-established, it follows from Article R55 of the CAS Code that the respondent to an appeal procedure is not entitled to file any counterclaim to challenge any or all the rulings of the Appealed Decision. Instead, to file any claims himself, the respondent would have had to file an independent appeal against the decision in question, within the applicable deadline. This has been established by consistent CAS jurisprudence (see CAS 2017/A/5481, CAS 2016/A/4852 and CAS 2016/A/4623 & 4624) and endorsed by the Swiss Federal Tribunal (Judgment 4A_10/2010).

208. Therefore, the First Respondent’s request goes beyond a mere confirmation of the Appealed Decision. The First Respondent did not file an appeal against the Appealed Decision. As a consequence, the Panel holds that the First Respondent’s request is inadmissible.

209. Therefore, based on Articles 102 and 104 of the SCO, the Panel confirms the Appealed Decision and finds that an interest rate of 5% p.a. shall be awarded on the amount of EUR 73,277 as from 14 March 2022 until the effective date of payment.

C. Conclusion

210. Based on the foregoing, the Panel finds that:

i) FIFA rightfully retained jurisdiction over the dispute between the Player and the Club;

ii) The Third Employment Contract was not extended and was due to expire on 30 November 2021.

iii) The Club terminated the Third Employment Contract without just cause on 25 May 2021;

iv) The liquidated damages clause inserted into the Third Employment Contract is invalid. The Club shall pay to the Player EUR 73,277 as compensation for breach of contract without just cause plus 5% interest p.a. as from 14 March 2022 until the effective date of payment.

211. All other and further motions or prayers for relief are dismissed.