Sabah Football Association v. Igor Cerina

II. BACKGROUND FACTS

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

5. On 18 December 2015, the Club and the Player entered into an employment agreement (the “First Contract”), valid from 18 December 2015 until 17 December 2016, which provided for the Player’s monthly salary in the amount of MYR 20,000 (“Schedule A – Salary” of the First Contract) and for certain in-kind benefits (“Schedule B – Other Benefits” of the First Contract).

6. On the same date, the Parties have agreed on the “extra allowance amount RM 10,000.00 per month nett” to be paid by the Club to the Player, by signing the “Extra Allowances of Premier League Player Season 2016”.

7. On 18 December 2016, the Parties concluded the second employment agreement (the “Second Contract”), valid from 18 December 2016 until 30 November 2018.

8. The Second Contract provided for the Player’s remuneration consisting of, in particular:

(i) monthly salary in the amount of MYR 20,000 (“Schedule A – Salary” of the Second Contract),

(ii) certain in-kind benefits (“Schedule B – Other Benefits” of the Second Contract), and

(iii) bonus of USD 10,000 or USD 20,000 “if the team qualified for the Malaysia Cup in 2017” or “for the Super League in 2018”, respectively (“Schedule B – Other Benefits” of the Second Contract).

9. In addition, the Parties signed the “Salary Increase and Extra Allowances of Premier League Player Season 2017/2018” by which the Club agreed “to increase player salary 20% if the team qualify to Super League 2018” and to pay to the Player “extra allowance amount RM 29,200 […] effective from 18 December 2016 till 30 November 2018”.

10. On 15 May 2017, the Player suffered an injury.

11. On 19 May 2017, the Club and the Player entered into an agreement (the “Agreement on Leave”) pursuant to which the Club agreed “to cover player medical expenses up to USD 5,000.00” and half of such expenses exceeding USD 5,000.00.

12. Pursuant to the provisions of the Agreement on Leave, the Player was to perform his medical treatment in Croatia, to be “deregistered from the Malaysia Premier League for the remaining of 2017 season” and to be “registered for the 2018 season” “upon the player making a full recovery and is match fit”.

13. On 28 September 2017, the Player was contacted by the Club summoning him “to resume training with Sabah [the Club’s] senior team on the 28 December 2017”.

14. On 29 January 2018, following the Player’s MRI check-up initiated by the Club, the latter received a medical report with regards to the Player’s health condition, advising, in particular, that the Player “reduce high impact training for 4 weeks”.

15. On 9 February 2018, the Club extended its instructions for the Player to train “with the Sabah President Cup team” due to the ongoing rehabilitation.

16. On 13 February 2018, the Player’s attorney sent an email to the Club stating, in particular, that the Club’s behavior in forbidding the Player to train with the Club’s First Team was discriminatory and that the Player was considering a possibility of terminating the Second Contract based on the said breach by the Club of its provisions.

17. On 20 March 2018, the Club and the Player entered into the “Agreement to Terminate” effective on the same date (the “Termination Contract”), pursuant to which the Parties agreed to terminate the Second Contract with a compensation “of nett RM 132,066.80” to be paid by the Club to the Player.

18. On 21 March 2018, the Parties signed a letter titled “SAFA Guarantees Full Payment of Outstanding Allowances” (the “Annex to Termination Contract”) which formed “an integral part of the termination of the contract”, pursuant to which the Club acknowledged “its obligation to pay [the Player] his outstanding allowances” in the amount of MYR 233,600 “before 20 June 2018”.

19. On 24 July 2018, the Player’s attorney sent a notice to the Club by email to proceed with the payment of the Player’s allowances in the amount of MYR 233,600 which were outstanding and informed the Club of the Player’s intent to initiate a legal action against it, should it fail to do so.

20. On 25 August 2018, the Club appointed a new Head of First Team Operation.

21. On the same date, the Player was contacted by the Club’s officers who informed him of the Club’s intent to resume his employment.

22. During the period from 25 August 2018 to 28 August 2018, the Club and the Player were negotiating the draft of the new employment contract.

23. On 3 September 2018, the Club sent the signed and stamped original of the new employment contract (the “Third Contract”) by DHL to Croatia for the Player’s signature.

24. The Third Contract was valid from 1 December 2018 until 30 November 2019 and provided for the Player’s remuneration consisting of (i) a monthly salary in the amount of MYR 20,000 (“Schedule A – Salary” of the Third Contract), and (ii) certain in-kind benefits (“Schedule B – Other Benefits” of the Third Contract).

25. Pursuant to the provisions of “Schedule D – Contract Enforcement” of the Third Contract, “this contract will only take effect after the player passes a health examination to be conducted at a clinic or hospital designated by a club based on regulations set by the Football Association of Malaysia LLP”.

26. In addition, the Parties signed the letter dated 29 August 2018 and titled “Allowances for Igor Cerina” (the “Annex to Third Contract”) by which the Club agreed “to pay extra allowance with the amount of RM 29,200 […] effective from 1 December 2018 to 30 November 2019”.

27. On 21 November 2018, prior to his trip to Malaysia, in order to join the Club, the Player underwent a medical examination in Croatia and was declared “capable” to play.

28. On 30 November 2018, the Player arrived in Malaysia and started to train with the Club.

29. On 21 December 2018, by email of the same date, the Player’s attorney extended a notice to the Club requesting for the payment to the Player of the outstanding amount of MYR 233,600 under the Annex to Termination Contract and for fulfilling the Club’s obligations under the Third Contract.

30. On 22 December 2018, the Player’s attorney sent another notice to the Club by email, indicating, in particular, that the Club did not allow the Player to train with the Club’s First Team, as provided in the Third Contract, and expressing the Player’s intent to initiate legal action against the Club before the FIFA Dispute Resolution Chamber (the “FIFA DRC”).

31. On 27 December 2018, following a medical examination at a private clinic of his choice, the Player obtained a report of being “fit and healthy to work and play soccer”.

32. On 3 January 2019, the Player’s attorney sent a notice to the Club by email, enclosing the obtained medical report and indicating the Player’s intent to initiate legal action against the Club, should the latter refuse to fulfill its obligations under the Third Contract and should it fail to pay the Player the outstanding amount of MYR 233,600 under the Annex to Termination Contract.

33. On 7 January 2019, the Club requested the Player to undergo a medical examination at a hospital designated by the Club.

34. On 10 January 2019, in its letter of the same date, the Club provided the Player with a copy of a banking cheque for the payment of the outstanding amount of MYR 233,600 under the Annex to Termination Contract. Pursuant to the said letter, the Player and his “agents/representatives are hereby agree not to make any further claims or any other claims with regards of any outstanding allowances or contracts which involves SAFA”.

35. On 11 January 2019, the Player’s attorney sent an email to the Club, indicating, in particular, that the conditions imposed by the Club made it impossible for the Player to sign the letter of 10 January 2019 and to accept the Club’s banking cheque.

36. On 17 January 2019, the Player sent a notice of the unilateral termination of the Third Contract with immediate effect based on the Club’s breach of its obligations, in accordance with Article 14 of the FIFA Regulations on the Status and Transfer of Players (the “FIFA RSTP”).

III. PROCEEDINGS BEFORE THE FIFA DRC

37. On 1 March 2019, the Respondent brought his claims before the FIFA DRC.

38. In his claim, the Respondent requested the FIFA DRC to order the Appellant to pay him the following amounts:

“- MYR 233,600, corresponding to the amount established in the letter dated 21 March 2018, plus 5% interest p.a. as from 21 June 2018;

- MYR 590,000, as compensation for “the unilateral termination of the player by the fault of the club”, plus 5% interest p.a. as from 18 January 2019, and further detailed as follows:

• MYR 240,000, corresponding to “12 basic months salaries”;

• MYR 250,400, corresponding to “12 special charges of net [MYR] 29,200”;

- EUR 1,200, plus 5% interest p.a. as from 18 January 2019, corresponding to the air ticket mentioned in schedule B of the contract”.

“In addition, the player requested the payment of the procedural costs by the Club”.

39. On 30 October 2019, following written submissions filed by the Parties, the FIFA DRC rendered the following decision:

“1. The claim of the Claimant, Igor Cerina, is partially accepted.

2. The Respondent, Sabah Football Association, has to pay to the Claimant, Igor Cerina, outstanding remuneration in the amount of MYR 49,200, plus 5% interest p.a. as from 7 January 2019 until the date of effective payment.

3. The Respondent has to pay to the Claimant additional outstanding remuneration in the amount of MYR 233,600, plus 5% interest p.a. as from 21 June 2018 until the date of effective payment.

4. The Respondent has to pay to the Claimant the additional outstanding amount of CHF 900.

5. The Respondent has to pay to the Claimant compensation for breach of contract in the amount of MYR 541,200, plus 5% interest p.a. as from 1 March 2019 until the date of effective payment.

6. Any further claim lodged by the Claimant is rejected.

7. The Claimant is directed to inform the Respondent, immediately and directly, preferably to the e-mail address as indicated on the cover letter of the present decision, of the relevant bank account to which the Respondent must pay the amounts mentioned under points 2, 3, 4 and 5 above.

8. The Respondent shall provide evidence of payment of the due amounts in accordance with points 2, 3, 4 and 5 above to FIFA to the e-mail address psdfifa@fifa.org, duly translated, if need be, into one of the official FIFA languages (English, French, German, Spanish).

9. In the event that the amount due in accordance with points 2, 3, 4 and 5 above are not paid by the Respondent within 45 days as from the notification by the Claimant of the relevant bank details to the Respondent, the Respondent shall be banned from registering any new players, either nationally or internationally, up until the due amounts are paid and for the maximum duration of three entire and consecutive registration periods (cf. art. 24bis of the Regulations on the Status and Transfer of Players).

10. The ban mentioned in point 9. above will be lifted immediately and prior to its complete serving, once the due amounts are paid”.

IV. PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT

40. On 13 February 2020, pursuant to Articles R47 and R48 of the Code of Sports-related Arbitration (the “CAS Code”), the Club filed a Statement of Appeal with the Court of

Arbitration for Sport (the “CAS”) with respect to the decision rendered by the FIFA DRC on 30 October 2019 (the “Appealed Decision”).

41. In its Statement of Appeal, the Appellant requested that the dispute be decided by a Sole Arbitrator and that the execution of the Appealed Decision be stayed until an award is issued in the appeal proceedings.

42. In addition, in its Statement of Appeal, the Appellant submitted the request “for relief for the payments to the Respondent MYR 541,200 plus 5% interest being compensation of breach of Contract + MYR 233,600 as remuneration amount + MYR 49,200 outstanding remuneration + CHF 900 additional outstanding amount mention in the said Decision by FIFA”.

43. On 19 February 2020, the CAS Court Office acknowledged receipt of the Statement of Appeal and requested the Appellant to confirm its request for a stay.

44. On the same date, the CAS Court Office notified FIFA of the appeal proceedings and of its right to intervene in such proceedings in accordance with Article 41.3 of the CAS Code.

45. On 27 February 2020, the Appellant filed its Appeal Brief in accordance with Article R51 of the CAS Code.

46. On 28 February 2020, the Respondent objected to the appointment of a Sole Arbitrator in these proceedings, requested that the present dispute be heard by a panel of three arbitrators and nominated Mr. Lovro Badžim, attorney-at-law in Zagreb, Croatia, as the Respondentappointed arbitrator. The Respondent further requested that the time limit for the filing of the Answer be fixed after the payment of the advance of costs by the Appellant in accordance with Article R64.2 of the CAS Code. In addition, the Respondent objected to the Appellant’s application for a stay.

47. On 2 March 2020, the CAS Court Office informed the Parties, in particular, that, based on the Appellant’s failure to withdraw the application for a stay within the set time limit, an Order on Provisional Measure would be issued by the President of the CAS Appeals Arbitration Division, or her Deputy.

48. On 3 March 2020, the CAS Court Office informed the Parties that FIFA had renounced its right to intervene in the present proceedings.

49. On the same date, the CAS Court Office informed the Parties that the composition of the Arbitral Tribunal in these proceedings shall be determined by the President of the CAS Appeals Arbitration Division, or her Deputy.

50. On 4 March 2020, the CAS Court Office took note of the Appellant’s request for the implementation of mediation in these proceedings and invited the Respondent to inform the CAS Court Office whether he could have any interest in mediation procedure.

51. On 13 March 2020, the CAS Court Office confirmed that the time limit for the Respondent to file his Answer would be set after the payment by the Appellant of the advance of costs.

52. On 27 March 2020, following the Appellant’s reiterated request of the same date for the implementation of mediation in these proceedings, the CAS Court Office set a new deadline for the Respondent to inform the CAS Court Office of his interest in the mediation procedure. In addition, the CAS Court Office informed the Parties that the President of the CAS Appeals Arbitration Division had decided that a sole arbitrator be appointed in these proceedings.

53. On 1 April 2020, the CAS Court Office informed the Parties that in the absence of the Respondent’s reply, the matter at hand shall not be submitted to the CAS mediation.

54. On 12 May 2020, the CAS Court Office acknowledged receipt of the advance of costs paid by the Appellant and set a time limit for the Respondent to file his Answer.

55. On 10 June 2020, the Respondent filed his Answer.

56. On 22 June 2020, the CAS issued the Order on Request for a Stay as follows:

“1. The request for a stay filed by Sabah Football Association on 13 February 2020 in this matter CAS 2020/A/6770 Sabah Football Association v. Igor Cerina is dismissed.

2. The Costs of the present order shall be determined in the final award or in any other final disposition of this arbitration”.

57. On 23 June 2020, on behalf of the President of the CAS Appeals Arbitration Division, the CAS Court Office informed the Parties that Mr. Alain Zahlan de Cayetti, Attorney-at-law in Paris, France, had been appointed as Sole Arbitrator in these proceedings.

58. On 8 July 2020, after consultation with the Parties, the CAS Court Office informed the Parties that, pursuant to Article R57 of the CAS Code, the Sole Arbitrator had decided to hold a hearing in these proceedings.

59. On 16 July 2020, the CAS Court Office issued the Order of Procedure in these proceedings, which was duly signed by the Parties, respectively on 17 and 20 July 2020.

60. On 11 August 2020, a hearing was held by videoconference via Cisco Webex, in accordance with Article 44.2 of the CAS Code. The following persons attended the hearing:

- For the Club: Mr. Hairul Vaiyron bin Othman J.P., counsel Mr. Datuk Juil Nuatim, witness

- For the Player: Mr. Igor Cerina, Respondent Mr. Davor Radić, counsel

In addition, Mr. Fabien Cagneux, Counsel to the CAS, assisted the Sole Arbitrator at the hearing.

61. At the outset of the hearing, the Parties confirmed that they had no objection with regard to the constitution and composition of the Arbitral Tribunal. During the hearing, the Parties had the opportunity to present their case, submit their arguments, examine and cross-examine the witness and answer all the questions posed by the Sole Arbitrator. The witness has previously taken oath to tell the truth and confirmed that he was isolated in his office. At the end of the hearing, the Parties and their counsels expressly declared that they did not have any objections with respect to the procedure adopted by the Sole Arbitrator and that their right to be heard had been fully respected.

V. SUBMISSIONS OF THE PARTIES

62. The following summary of the Parties’ positions is illustrative only and does not necessarily comprise each contention put forward by them. However, in considering and deciding the Parties’ positions, the Sole Arbitrator, has carefully considered all the submissions made and the evidence adduced by the Parties, even if there is no specific reference to those submissions in this section of the award or in the legal analysis that follows.

A. Submission of the Appellant

63. The Appelant’s submissions, in essence, may be summarized as follows:

64. The Appellant sustains that the Third Contract is not valid and, therefore, should be considered as void, as there have never been any offer or acceptance with regards to such employment of the Player by the Club. The Appellant indicates that its internal policies provide for a certain selection procedure which has never been conducted with regards to the Player.

65. Furthermore, arguing the validity of the Third Contract, the Appellant refers to the procedure of the execution of the Third Contract, which it considers to be wrongfully conducted. In particular, the Appellant indicates that, contrary to the signing provisions of the Third Contract, the signature of the Player has never been witnessed and, therefore, may not be considered as valid and genuine. Furthermore, the Appellant considers that the absence of a clearly indicated year on the first page of the Third Contract serves as another proof that the Club has never meant to execute such contract with the Player.

66. In addition, the Appellant affirms that the stamp contained in the Third Contract does not belong to the Club, indicating that it visually differs from the one contained in the First Contract and in the Second Contract respectively. Taking this into account, the Club denies having executed the Third Contract and insists on its invalidity.

67. Finally, the Appellant sustains that, should the validity of the Third Contract be acknowledged by the Sole Arbitrator, the Player is not entitled to any compensation for its termination, as

the Third Contract has never been performed by the Player. The Appellant states that the Player has never attended the Club’s trainings and “was not even fielded even once for the 2019 season [the relevant season under the Third Contract]”. In that regard, the Appellant refers to the absence of the Player’s name in the “players attendance record” kept by the Club for every training.

68. In the similar way, the Appellant contests the validity of the Annex to Third Contract, indicating that (i) such document has never been made by the Appellant, (ii) “the format of the said letter is disputed” and (iii) the stamp under this document is “different from the Club’/Appellant’s original rubber stamp”.

69. Therefore, and based on its abovementioned submissions, the Appellant has requeted “relief for the payments to the Respondent MYR 541,200 plus 5% interest being compensation of breach of Contract + MYR 233,600 as remuneration amount + MYR 49,200 outstanding remuneration + CHF 900 additional outstanding amount mention in the said Decision by FIFA”.

B. Submission of the Respondent

70. The Respondent’s submissions, in essence, may be summarized as follows:

71. The Respondent considers that the Third Contract has been validly signed and is binding for both Parties. The Respondent further sustains that it was his clear intent to perform the Third Contract, for which purposes he has joined the Club in due time and has made himself available for trainings with the Club’s designated team. The Player alleges that the Club has prohibited him to attend such trainings, thus making it impossible for the Player to proceed with the performance of his obligations under the Third Contract. The Player considers that he has terminated the Third Contract with just cause based on the breach by the Club of its contractual obligations.

72. Consequently, the Respondent submitted the following request for relief:

“1. The appeal filed by Appellant Sabah Football Association against the Decision by the Dispute Resolution Chamber of the Federation Internationale de Football Association (FIFA) on 30 October 2019 is dismissed.

2. The Decision by the Dispute Resolution Chamber of the Federation Internationale de Football Association (FIFA) on 30 October 2019 is confirmed.

3. All costs of these proceedings shall be charged to the Appellant:

a) the costs of the arbitration, which will be communicated by the CAS Court Office to the parties at a later stage, shall be borne by Appellant Sabah Football Association.

b) Appellant Sabah Football Association shall pay to the Respondent Igor Cerina the amount of CHF 5,000.00 as a contribution towards its legal fees and other expenses incurred in connection with this arbitration.

4. All other of further motions or prayers for relief from the Appellant are dismissed”.

73. In reply to the Appellant’s statements with regards to the invalidity of the Third Contract, the Player affirms that:

- the Third Contract, similar to all employment agreements existing between the Club and the Player (i.e. First Contract, Second Contract), has been drafted by the Club and submitted for the Player’s signature, based on the Club’s adopted template and signed by the Club’s President. Therefore, the Player considers that the Club’s allegation that it did not mean to enter into the Third Contract with the Respondent, is ungrounded.

- the stamp of the Club under the Third Contract has been affixed by the Appellant as its “original” stamp. In particular, the Player indicates that the First, the Second and the Third Contracts, entered into by the Player and the Club, contain different stamps. Consequently, the Player believes that the Club may have several “original” stamps. The Player refers to Article 3.8 of the Third Contract, which indicates, in particular, that the “contract must be signed and stamped by the Club”. Therefore, the Player indicates that it was the Club’s obligation to affix its stamp under the Third Contract. Finally, the Player points out that the Agreement on Leave and the Termination Contract which have not been stamped by the Club, were not challenged by the Club.

- negotiations relating to the conclusion of the Third Contract have validly taken place. The Player insists that the offer to re-join the Club, together with the related conditions, have been extended to him directly by the newly appointed President of the Club and numerous correspondence and discussions have followed, in order to determine the final draft of the Third Contract. Therefore, the Player declares the relating allegations of the Appellant to be untrue.

- the Player has signed the Third Contract in accordance with the agreed procedure and the Club’s affirmations with regards to the absence of the required witness are irrelevant. The Player points out that it was the Club’s initiative that the Third Contract be sent for the Player’s signature by DHL, given that the Player resided at that time in Croatia. The Player further refers to the Club’s preference that the said contract be signed and stamped by the Club prior to being sent for the Player’s signature. Finally, the Player sustains that the absence of the fact of physically witnessing the Player’s signature does not affect the validity of the Third Contract, such witness neither being its party nor such requirement being stipulated by the applicable law.

- the fact that the year is not clearly mentioned in the first page of the Third Contract is insignificant, taking into account that the contract mentioned its validity from 1 December 2018 until 30 November 2019. Furthermore, the Player refers to the Annex to Third Contract which clearly mentions the date of 29 August 2018. Therefore, the Player considers the Club’s argument in that regard to be irrelevant to the determination of the validity of the Third Contract.

- regarding the witness testimony during the hearing, the Player has pointed out the lack of admissibility of such testimony based on the fact that Mr. Datuk Juil Nuatim has been, at the time he signed the Third Contract as a witness and until the date of the hearing, an employee of the Club and that, therefore, his impartiality is impaired.