Club Adanaspor v. Mbilla Etame Serges Flavier

II. FACTUAL BACKGROUND

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

A. Background facts

4. The Player was born on 22 June 1988.

5. On 30 July 2008, the Player and the Club signed an employment contract valid until 31 May 2011 (the “First Employment Agreement”).

6. TFF regulations stipulate certain restrictions regarding the number and age of foreign players, as well as the duration of their employment contracts. Those restrictions are determined and announced on a seasonal basis by the TFF. Before the beginning of the 2010/2011 season, the TFF issued its 2010/2011 Circular, which stated (emphasis added by the TFF):

“Bank Aysa 1. Lig clubs can sign contracts with 3 foreign players on the condition that they are born on or after 01.01.1987, the expiry date of contracts with such players should be at the latest 31.05.2013”.

7. On 29 November 2010, during the term of the First Employment Agreement and in the 2010/2011 season, the Player and the Club signed a second employment contract, for the purported period between 1 June 2011 and 31 May 2014 (the “Second Employment Agreement”). The Second Employment Agreement was signed outside the relevant transfer window in Turkey, which was permitted under TFF regulations.

8. The Second Employment Agreement had the following material terms1:

1 The Panel notes that the original version of the Second Employment Agreement was in Turkish, and has quoted the terms of the Agreement using the English translation provided by the Club.

“2 – TERM OF CONTRACT

Start of contract (day - month – year) 01.06.2011 End of contract 31.05.2013”

The date for the end of the Second Employment Agreement initially stated “31.05.2014”, however this was changed as set out above and the change was initialled by the Player. The Second Employment Agreement also contained these further terms:

“3 – FEE

Net Monthly Wage For the season 2011-2012; 3.500 Euros per month from August to May (Not to be lower than the minimum wage) For the season 2012-2013; 3.500 Euros per month from August to May

For the season 2013-2014; 3.500 Euros per month from August to May

Pre Match Payment For season 2011-2012; 2.645-Euros

For season 2012-2013; 2.940-Euros

For season 2013-2014; 3.235-Euros

Other wages Seasonal guaranteed wage payments promised by the club For season 2011-2012: 55.000-Euros

For season 2012-2013: 65.000-Euros

For season 2013-2014: 70.000-Euros

Payment Type Monthly payments within the first week of month follow […] deserved month

Per match payments: at the end of the first and second halve […] season

Guaranteed wages: during the season

(…)

8 – SPECIAL PROVISIONS

1 - The per match allowances of the player shall be as follows; The footballer will reserve 100% of per match fee if he starts to play within the first 11 players, 75% of the fee if he is fielded as a substitute and %50 of fee in case he is unused substitute but in the 18 man squad. The player shall be due no match fee if he is outside 18-man squad.

(…)

5 - Following the signature date of this contract, the Footballer has to submit to the Club the documents necessary for his registration before Turkish Football Federation within determined periods by the Club, as well as to be present at the designated place by the club to undergo medical examinations. In case the footballer refrains from fulfilling these obligations or signs a contract with another club, he accepts and undertakes to pay a compensation of 3.000.000 TL to the club, that the compensation amount is neither excessive nor subject to any reduction.

(…)

8 - In case of groundless termination of the contract by the footballer or its termination by the club based on justification, the footballer shall pay a compensation of unjust termination of 3.000.000 TL to the club. The compensation amount is determined by free will of the parties and shall be subject to no reduction”.

9. Later on 29 November 2010, the Second Employment Agreement was registered by the TFF, after the term was reduced to 31 May 2013.

10. In or around the summer of 2011, whilst still under contract with the Club, the Player joined another club’s (Club Odense’s) training sessions. As a result, on 28 July 2011, the Club wrote to the Player stating that he was fined EUR 54,000 (the “Fine”). It appears that the Player never paid the Fine, nor did the Club look to deduct any monies from his salaries.

11. Before the beginning of the 2011/2012 season, the TFF issued its 2011/2012 Circular, which stated (emphasis added by the TFF):

“Bank Aysa 1. Lig clubs can sign contracts with 3 foreign players on the condition that they are born on or after 01.01.1988, the expiry date of contracts with such players should be at the latest 31.05.2014”.

12. On 15 July 2011, the Club alleged that the Player requested and they both signed a second version of the Second Employment Agreement, with the expiry date now being reinstated to 31 May 2014 (the “Third Employment Agreement”). This also had a slightly different start date from the Second Employment Agreement and was signed by a different official on behalf of the Club, otherwise, it was identical. The Third Employment Agreement was never registered with the TFF.

13. On 31 May 2012, the Club submitted an application to the TFF requesting that the Second Employment Agreement’s registration dates be modified to end in 2014 instead of 2013. The Player’s signature did not appear on this submission, which stated as follows:

“Subject: The subject matter is to submit our request for amendment of the end date, 31.05.2013 of Professional Footballer contract registered at the Federation between our club and Mbilla Etame Serges Flavier, as 31.05.2014 and for its registration.

An Off-Season contract has been made between Mbilla Etame Serges Flavier and our club within 2010- 2011 so as to be valid between 01.06.2011 and 31.05.2014; and it was submitted to the Federation for registration.

Pursuant to the rules declared by TFF (Turkish Football Federation) for the season 2010-2011, teams in Bank Aysa 1. Lig competition can sign 3 foreign players on the condition that they are born on or after 01.01.1987, and contracts with such players can expire at the latest on 31.05.2013.

In line with abovementioned rule, it is indicated by the Federation that the expiry date of related contract cannot be registered as 31.05.2014, but only as 31.05.2013. Thereupon, the expiry date of contract was amended as 31.05.2013.

Nevertheless, even though Off-Season contract was signed during season 2010-2011, it would come into effect as of 01.06.2011, that is, season 2011-2012. Therefore, the mentioned contract cannot undergo the rules declared for season 2010-2011.

As a matter of fact, pursuant to the rules declared for season 2011-2012, teams in Bank Aysa 1. Lig can sign 3 foreign players on the condition that they are born on or after 01.01.1988, and contracts with such players can expire at the latest on 31.05.2014. Accordingly, Off-Season contract between the parties, with respective start and expiry dates 01.06.2011 and 31.05.2014, fulfils the corresponding rules and regulations. The birth date of Mbilla Etame Serges Flavier is 22.06.1988. And the Off-Season contract has come into effect in season 2011-2012. Therefore, it is erroneous not to register the Agreement expiry date as 31.05.2014.

The will of parties is to determine the expiry date as 31.05.2014. There is no obstacle against application of rules for season 2011-2012 with respect to abovementioned contract. As a result of an improper implementation, the Federation has registered the contract expiry date as 31.05.2013, non compliantly with the will of parties and related regulations. The true will of parties is proven by means of the Professional Footballer contract in the annex, which has respective start and expiry dates 15.07.2011 and 31.05.2014 and which was not registered by the Federation.

We kindly submit for your information and inform our request that the expiry date of present Off-Season contract registered by the Federation is changed as 31.05.2014, or that the Federation registers Agreement, a sample of which is in the annex, beginning on 15.07.2011 and ending on 31.05.2014 for that all actions remain in line with the true will of parties and relevant regulations and that no loss of right is in question”.

14. On 13 May 2013, the Club received an offer by email from German club FC Union Berlin to sign the Player on a permanent basis. The offer was for EUR 100,000 plus a 7.5% sell on fee.

15. On 4 June 2013, the Player’s counsel wrote to the Club stating that the contractual relationship between the Player and the Club had ended on 31 May 2013, and requested the Club not to interfere with the Player’s intention to enter into a contract with another club, otherwise the Club could be liable for damages.

16. On 6 June 2013, the Club wrote to the Player stating that it was unlawful for the Player to negotiate with other clubs without its consent as he was still under contract with the Club. The Club requested the Player to honour his contractual obligations or risk facing legal action.

17. On 10 June 2013, the Club wrote to the Player again explaining, inter alia, the contractual history between the two parties and requested once again that the Player honour his contractual obligations to the Club.

18. On 20 June 2013, the Club wrote to the Player for a third time in a similar manner. There was no response from the Player to these three letters sent by the Club in June 2013.

19. On 26 June 2013, the Club wrote to the Player’s counsel stating that their pre-season training camp would begin on 4 July 2013, and they expected the Player to join the team by that date. Later that same day, the Player’s counsel responded to the Club and directed the Club to the Player’s agent.

20. On 5 July 2013, the Player wrote to the Club, copying in the TFF, stating that the expiry date of the Second Employment Agreement was 31 May 2013 and that he had no intention to extend the contract any further. Moreover, the Player claimed that the Third Employment Agreement was in Turkish and was never translated to his native language (French) and claimed that the provisions against him were unacceptable. The Player also claimed that the Club had to pay him the amount of EUR 24,360, which was the amount of outstanding match bonus payments.

21. On 11 July 2013, the Club responded to the Player stating, inter alia, that the end date of the Second Employment Agreement was 31 May 2014 and that the French translation of the contracts had been provided to the Player. The letter also referred to the Fine, which had still remained unpaid.

22. On 3 August 2013, the Player signed an employment contract with Azerbaijani club Khazar Lankaran (the “Khazar Employment Agreement”).

B. Proceedings before FIFA

23. On 22 October 2013, the Club filed a claim at the FIFA Dispute Resolution Chamber (“DRC”), requesting the Player and Khazar Lankaran be held jointly and severally liable in the amount of 3,000,000 Turkish Lira (EUR 1,107,054). The Club also requested to be reimbursed EUR 29,640

from the Player and requested that sporting sanctions be imposed on the Player and his new club.

24. On 14 October 2014, the Club and the Player were informed by FIFA that the club Khazar Lankaran had been disaffiliated from its national federation and therefore was no longer a party to the FIFA proceedings.

25. On 30 October 2014, the Player filed a counter-claim against the Club requesting to be paid EUR 26,320 as outstanding remuneration as well as legal fees.

26. On 13 July 2017, the FIFA DRC rendered its decision as follows (the “Appealed Decision”):

“1. The claim of the Claimant/Counter–Respondent, Adanaspor, is rejected.

2. The counterclaim of the Respondent 1/Counter-Claimant, Mbilla Etame Serges Flavier, is accepted.

3. The Claimant/Counter–Respondent has to pay to the Respondent 1/Counter-Respondent the amount of EUR 26,320 as outstanding remuneration, within 30 days as from the date of notification of this decision.

4. In the event that the aforementioned sum is not paid by the Claimant/Counter-Respondent within the stated time limit, interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned time limit and the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision”.

27. The grounds of the Appealed Decision were notified to the parties on 27 September 2017.

III. PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT (CAS)

28. On 18 October 2017, in accordance with Article R47 of the Code of Sports-related Arbitration (the “CAS Code”), the Club filed a Statement of Appeal with the CAS challenging the Appealed Decision and requesting the following prayers for relief:

“- To grant a permanent relief reversing the appealed decision; to accept the Appellant’s claim and to reject the Respondent’s counter-claim,

- To condemn the Respondent to pay the Appellant the legal fees and other expenses in connection with the legal proceedings”.

29. In its Statement of Appeal, the Club requested the appointment of a Sole Arbitrator to resolve this dispute.

30. On 30 October 2017, in accordance with Article R51 of the CAS Code, the Club filed its Appeal Brief with the CAS with the following prayers for relief:

“1. To set aside the challenged FIFA Dispute Resolution Chamber decision;

2. To decide as the Respondent, Mr. Mbilla Etame Serges Flavier terminated the employment contract unilaterally without just cause and breached the contract,

3. To condemn the Respondent:

a. Accordingly, to pay in favour of the Appellant the amount of 3.000.000,-TL (EUR 1.103.468,57-) as compensation for breach of the contract without just cause,

b. To reimburse the amount of EUR 27.640,- in favour of the Appellant as outstanding and non-paid part of the fine,

4. To condemn the Respondent as the only responsible of this trial and to establish that the costs of the arbitration procedure shall be borne by the Respondent”.

31. On 31 October 2017, the CAS Court Office wrote to the parties stating, inter alia, that since the Player did not state his position regarding the Club’s request for a sole arbitrator to be appointed to this case, in accordance with Article R50 of the CAS Code it would be for the President of the CAS Appeals Arbitration Division, or her Deputy, to decide the issue taking into account the circumstances of the case.

32. On 8 November 2017, the Player wrote to the CAS Court Office confirming that he did not agree to the appointment of a sole arbitrator.

33. On 20 November 2017, the Player wrote to the CAS Court Office requesting that the time limit for filing his Answer be fixed only after the payment by the Club of his share of the advance of costs. Further, in accordance with Article R53 of the CAS Code, the Player nominated Mr Bernhard Welten, Attorney-at-Law, Bern, Switzerland, as an arbitrator.

34. On 21 November 2017, the CAS Court Office wrote to the parties confirming that the time limit for the Player to file his Answer was suspended until the Club paid his share of the advance of costs in accordance with Article R55 of the CAS Code and informed the parties that the President of the CAS Appeals Arbitration Division had decided to submit the dispute to a Panel of three arbitrators.

35. On 28 November 2017, in accordance with Article R48 of the CAS Code, the Club nominated Mr Efraim Barak, Attorney-at-Law, Tel-Aviv, Israel, as an arbitrator.

36. On 21 December 2017, the CAS Court Office wrote to the parties confirming that the Club had paid its share of the advance of costs for this procedure, and accordingly the Player had 20 days to submit his Answer pursuant to Article R55 of the CAS Code. Further, in accordance with Article R54 of the CAS Code, and on behalf of the President of the CAS Appeals Arbitration Division, the CAS Court Office informed the parties that the Panel appointed to this case was constituted as follows:

President: Mr Mark Hovell, Solicitor, Manchester, England

Arbitrators: Mr Efraim Barak, Attorney-at-Law, Tel Aviv, Israel

Mr Bernhard Welten, Attorney-at-Law, Bern, Switzerland

37. On 19 January 2018, out of the time limit stipulated by Article R55 of the CAS Code, the Player filed his Answer to the Club’s Appeal.

38. On 22 January 2018, the CAS Court Office wrote to the parties acknowledging receipt of the Player’s Answer and invited the Club to comment on the admissibility of the Answer within 3 days.

39. On 25 January 2018, the Club wrote to the CAS Court Office stating that the Answer was filed late, and should therefore be deemed inadmissible.

40. On 25 January 2018, the CAS Court Office wrote to the parties acknowledging the Club’s position on the admissibility of the Answer. The CAS Court Office also invited the parties to state by 29 January 2018 whether they preferred for a hearing to be held in this matter or wished for the Panel to issue an Award solely on the written submissions.

41. On 29 January 2018, the Club wrote to the CAS Court Office requesting that a hearing be held in this matter.

42. On the same date, the Player wrote to the CAS Court Office stating that he did not wish for a hearing to be held in this matter.

43. On 31 January 2018, the CAS Court Office wrote to the parties confirming that a hearing would be held in this matter. The CAS Court Office also invited the Player to explain the reasons for filing his Answer only on 19 January 2018.

44. On 5 February 2018, the Player wrote to the CAS Court Office stating, inter alia, as follows:

“All of our defenses [sic] have already been reported in the FIFA DRC file. Our defense is the same in this file. Because of this, all of our defences under the scope of the dispute have already been presented in the FIFA DRC file, so the appellant’s objection is of no practical benefit.

But I only received the letter dated January 16, 2018 and we sent respondents answer immeadetly [sic].

On December 22, I did not receive any posts. Maybe it is a mistake of my secretary, but we demand that our answers be taken into consideration”.

45. On 7 February 2018, the CAS Court Office wrote to the parties confirming that a hearing would be held in this matter on 27 March 2018.

46. On 8 February 2018, the CAS Court Office wrote to the parties stating as follows:

“Answer

(…)

On behalf of the Panel, the Parties are informed as follows: the Respondent does not contest the fact that he only filed his Answer on 19 January 2018. Therefore, in order to decide whether or not the Respondent’s Answer was timely filed, the issue that needs to be assessed by the Panel is when the 20-day time limit provided for in Article R55 of the Code of Sports-related Arbitration (“Code”) expired.

The Panel notes that the 20-day time limit was fixed by means of CAS’ letter of 21 December 2017 (“twenty (20) days of receipt of this letter by courier”). The Panel has taken note of the Respondent’s indication that “On December 22, I did not receive any posts. Maybe it is a mistake of my secretary […]”. Having assessed the evidence on file, the Panel considers that it is established that CAS’ letter of 21 December 2017 was received by the Respondent by fax on the same day and by DHL on 22 December 2017. The Panel therefore considers that the time limit for the filing of the Answer was 11 January 2018 and that, consequently, the Answer was filed after the expiry of said time limit.

Moreover, the Panel notes that, pursuant to Article R56 of the Code, a party may only be authorised to, inter alia, supplement its submissions after the filing of the appeal brief and of the answer, if (a) the parties agree or (b) the Panel orders otherwise on the basis of exceptional circumstances. The Panel notes that (a) the Appellant has objected to the admissibility of the Answer and (b) despite having been afforded with the opportunity to do so, the Respondent has not established the existence of any exceptional circumstances for the purposes of Article R56 of the Code.

In light of the above, the Panel has decided that the Answer filed by the Respondent on 19 January 2018 is inadmissible.

FIFA file

The Parties are advised that the Panel has decided to request that FIFA provides a copy of the entire file of the FIFA proceedings for this case, pursuant to Article R57 of the Code”.

47. On the same date, pursuant to Article R57 of the CAS Code the CAS Court Office wrote to FIFA requesting a copy of the complete FIFA file.

48. On 22 February 2018, FIFA wrote to the CAS Court Office providing a copy of the complete FIFA file on this matter. On the same date, the CAS Court Office sent a copy of the FIFA file to the parties.

49. On 13 March 2018, the CAS Court Office wrote to the parties with the Order of Procedure for this matter, which was returned signed on 13 and 19 March 2018 by the Respondent and the Appellant, respectively.

50. A hearing was held on 27 March 2018 in Lausanne, Switzerland. The parties did not raise any objection as to the composition of the Panel. The Panel were all present and was assisted by Mr Daniele Boccucci, Legal Counsel at the CAS. The following persons attended the hearing:

i. the Club: Mr Kemal Kapulluoğlu, counsel; and

ii. the Player: Mr Mehmet Aygün, counsel and Mrs Fatima Karakulah, translator.

51. The parties were given the opportunity to present their cases, to make their submissions and arguments and to answer questions posed by the Panel. The hearing was then closed and the Panel reserved its detailed decision to this written Award.

52. Upon closing the hearing, the parties expressly stated that they had no objections in relation to their respective rights to be heard and to be treated equally in these arbitration proceedings. The Panel has carefully taken into account in its subsequent deliberation all the evidence and the arguments presented by the parties, both in their written submissions and at the hearing, even if they have not been summarised in the present Award.

IV. THE PARTIES’ SUBMISSIONS

53. The following summary of the parties’ positions is illustrative only and does not necessarily comprise each and every contention put forward by the parties. The Panel, however, has carefully considered all the submissions made by the parties, even if no explicit reference is made in what immediately follows.

A. The Club’s submissions

54. The true will of the parties was for the Second Employment Agreement to run until 31 May 2014. This Agreement had been entered into outside of a transfer window (as allowed under the TFF’s regulations), but needed to be provided to the TFF during the next window. However, as it was due to commence immediately after the First Employment Agreement expired on 31 May 2011, it did not need registering until that time.

55. The parties knew that by the time the Second Employment Agreement was due to be registered, the 2011/12 TFF Circular would be in force, so for a foreign player of the Player’s age, the maximum term could be until 31 May 2014, hence this was the expiry date included in the Second Employment Agreement.

56. When the Second Employment Agreement was sent to the TFF, it was unable to upload this on their systems, so they suggested changing the expiry date to 31 May 2013 temporarily. Thus, later on the Club approached the TFF to rectify this, which it did.

57. There was no pressure put on the Player to sign the Second Employment Agreement, he was receiving a six-fold increase in his remuneration.

58. Further, the Player sought to ignore the Second Employment Agreement and his agent looked to take him to Odense. However, when the Club informed Odense of the Second Employment Agreement, the Player returned. He was concerned that the registered version was only for a couple of years, so he requested a contract that was for 3 years, until 31 May 2014. As such, the parties executed the Third Employment Agreement.

59. This was never registered, as the TFF agreed to amend their records to show that the Second Employment Agreement would run until 31 May 2014. Further, a translated copy of the Third Employment Agreement was provided to the Player’s counsel. However, when before FIFA, it mistakenly took this translation as an unsigned contract with the Player.

60. The Club denied the Player’s claims that he never signed the Third Employment Agreement. At the hearing, the Player’s counsel suggested that the Club had got the Player to sign an extra copy of the Second Employment Agreement and had submitted this as a signed version. However, the Club pointed out that in addition to the expiry date being different, so was the commencement date and the signatory on behalf of the Club.

61. When the Player refused to come back after the end of the 2012/2103 season, he breached the Second Employment Agreement, which the parties intended to run until 31 May 2014, without just cause.

62. Article 8 of the Second Employment Agreement clearly sets out the agreed remedy for such a breach. The Player has to compensate the Club in the amount of TL 3,000,000. Further he never paid the Fine, but the Club acknowledged it owed the Player EUR 26,360.

63. At the hearing, the Club’s counsel acknowledged that the penalty clause may not be proportionate, and directed the Panel to the offer (that it turned down) that FC Union Berlin made for the Player around the time he breached without just cause, in the sum of EUR 100,000, with a sell on fee.

B. The Player’s submissions

64. The Player denied that he ever signed the Third Employment Agreement. Before FIFA he alleged that it was forged and at the hearing, his counsel maintained this accusation. When directed to a purportedly signed copy of the Third Employment Agreement, his counsel suggested that it was a duplicate of an earlier contract (i.e. the Second Employment Agreement) that had been changed.

65. As such, the contract between the Parties was the Second Employment Agreement. The Player’s position was that he had been pressured into signing it in the first place, and that it had been modified so that the expiry date was 31 May 2013. He had accepted this and initialled the change, which was on the version of the contract registered with the TFF.

66. The Club approached the TFF without the Player’s knowledge and persuaded them to change their records to show that the expiry date was now 31 May 2014, however, he never agreed to

this modification and the contract could only be modified with his consent. Without this consent, the Second Employment Agreement expired on 31 May 2013, after which he was free to join Khazar Lankaran, as he did on 3 August 2013.

67. In the alternative, the Player alleged a breach of Article 18.2 of FIFA’s Regulations on the Status and Transfer of Players (the “RSTP”), as the combination of the First and Second Employment Agreements would have a term of 6 years, if allowed to run until 31 May 2014, which is greater than the 5 years allowed under the RSTP. As such the term should be until 31 May 2013 to be compliant.

68. With regard to the Fine, he was not aware of this, but he did have arrears of salaries still due to him in the amount of EUR 26,320. As such, he should be paid this sum and the Fine be ignored, as FIFA had done. The Appeal should be dismissed.