Aris FC v. Fédération Internationale de Football Association (FIFA), Oriol Lozano Farran

FACTUAL BACKGROUND

6. Below is a summary of the main relevant facts, as established on the basis of the Parties’ written submissions on the file, the video-hearing and relevant documentation produced in this appeal. Additional facts and allegations found in the Parties’ submissions may be set out, where relevant, in connection with the further legal discussion that follows. While the Sole Arbitrator has considered all the facts, allegations, legal arguments and evidence submitted by the Parties in the present proceedings, the Award only refers to the submissions and evidence it considers necessary to explain its reasoning.

Background facts

7. On 9 July 2010, the Player and the Greek professional football club, ARIS FC Thessaloniki (the “Old Club” or the “Old Entity”) signed an employment contract valid as from the date of signature until 30 June 2013 (the “Employment Contract”).

8. From Article 4.4 of the Employment Contract it follows that the Player was, inter alia, entitled to remuneration in the amount of NET EUR 1,050,000, payable in thirteen instalments:

“20.000€ (twenty thousand euros) NET on 31-07-2011 40.000€ (forty thousand euros) NET on 31-08-2011

60.000€ (sixty thousand euros) NET on 30-09-2011 50.000€ (fifty thousand euros) NET on 31-01-2012 20.000€ (twenty thousand euros) NET on 31-07-2011[sic] 30.000€ (thrity thousand euros) NET on 31-08-2012 50.000€ (fifty thousand euros) NET on 31-01-2013 50.000€ (fifty thousand euros) NET on 30-06-2013”.

9. On 5 July 2011, the Old Club and the Player signed a termination agreement, by means of which the Old Club undertook to pay the Player a total amount of NET EUR 300,000, corresponding to NET EUR 120,000 as outstanding payment and an amount of NET EUR 180,000 as compensation for the early termination of the Employment Contract.

10. On 29 March 2012, the Old Club and the Player signed a “Private Agreement”, stating, inter alia, that the Employment Contract was breached with mutual consent on 5 July 2011 and the Old Club and the Player agreed to the payment of a total amount of NET EUR 300,000 (“Private Agreement”). From Article 3 of the Private Agreement it follows that:

“[…] after the payment of some of the above mentioned installments, the football player declares that he accepts the change of the date of the deposit as well as the change of the amount to 350.000€ NET (due to a delay of payment of the installment) and the new dates are settled as follows:

• 90.000€ (ninety thousand euros) NET on 30-04-2012

• 95.000€ (ninety [sic] thousand euros) NET on 31-05-2012

• 95.000€ (ninety five thousand euros) NET on 30-06-2012

• 70.000€ (seventy thousand euros) NET on 31-08-2012”.

11. The next day, on 30 March 2012, the Old Club and the Player signed a Spanish version of the Private Agreement. From Clause 4 of the Spanish version of the Private Agreement it follows that, inter alia, in case any of the four instalments would be delayed for more than a month, the Player could request full performance of the Employment Contract.

12. On 30 April 2012, the Old Club duly paid the first instalment of the Private Agreement.

13. On 29 May 2014, the Player lodged a claim in front of FIFA against the Old Club, claiming a total amount of EUR 750,000, corresponding to the residual amount of the Employment Contract in accordance with Article 4 of the Spanish version of the Private Agreement.

14. On 1 October 2014, the HFF informed FIFA, inter alia, that the Old Club was no longer affiliated with the HFF due to their dissolution.

15. On 12 March 2015, FIFA informed the Player that the Old Club was no longer affiliated to the HFF and therefore considered that FIFA was no longer in the position to further proceed with the claim of the Player against the Old Club.

Proceedings before the FIFA Dispute Resolution Chamber

16. On 8 May 2018, the Player lodged a claim against the Appellant in front of the FIFA DRC, requesting the payment of the amount of EUR 750,000, corresponding to the residual amount of the Employment Contract, based on the non-compliance of the Private Agreement and in particular referring to Clause 4 of the Spanish version of the Private Agreement, and claiming that the Appellant was reaffiliated with the HFF.

17. The Appellant replied to the claim by means of a letter which letterhead read “Aris FC”, affirming that the Appellant is a different legal entity from the Old Club.

18. On 4 June 2020, the FIFA DRC rendered the Appealed Decision with the following operative part:

“1. The claim of the [Player], ORIOL LOZANO FARRÁN, is admissible.

2. The claim of the [Club], is partially accepted.

3. The [Club] ARIS FC (ATHLITIKOS SYLLOGOS THESSALONIKIS O ARIS PODOSFERIKI ANONYMI ETERIA) has to pay to the [Player] within 30 days as from the notification of this decision, the amount of EUR 750,000, plus interest at the rate of 5% p.a. as follows:

• On the amount of EUR 380,000 as from 31 May 2012 until the date of effective payment;

• On the amount of EUR 35,000 as from 31 August 2012 until the date of effective payment;

• On the amount of EUR 90,000 as from 31 October 2012 until the date of effective payment;

• On the amount of EUR 110,000 as from 31 January 2013 until the date of effective payment;

• On the amount of EUR 135,000 as from 30 March 2013 until the date of effective payment.

4. Any further claim lodged by the [Player] is rejected.

(…)”.

19. On 1 July 2020, the grounds of the Appealed Decision were communicated to the Parties determining, inter alia, the following:

➢ Considering that the claim of the Player was lodged on 8 May 2018, the Chamber deemed that, in principle, it could not enter into any claim for salaries that fell due prior to 8 May 2016. However, the members of the Chamber wished to highlight the special circumstances of the present case, in particular, that the information regarding the existence of the Respondent only became available after the letter from HFF on 13 July 2018 during the proceedings in CAS 2016/A/4918. Consequently, the request for the salaries accrued before the date of 8 May 2016 are not barred by the statute of limitations in accordance with Article 25 (5) of the Regulations on the Status and Transfer of Players (the “FIFA RSTP”).

➢ In CAS 2013/A/3425 it is established that a club is a sporting entity identifiable by itself, which is formed by a combined set of elements that constitute its image. The FIFA DRC concluded that there are sufficient elements to establish that the Appellant has been the same club as the Old Club throughout its history, despite the alleged change of owners, board of directors, etc. By using the same name “Aris FC”, logo, stadium and, in particular, the history, it is evident that the Appellant had the intention to maintain the identity and image of the Old Club in order to be considered the same club.

➢ Consequently, the FIFA DRC decided that the Appellant is the sporting successor of the Old Club, has standing to be sued and is therefore liable to pay to the Player the amounts due under the Employment Contract and the Private Agreement.

➢ Clause 4 of the Spanish version of the Private Agreement is equivalent to a financial disposition in a settlement agreement. The same parties had written that the Player, should the Appellant fail to make the payments as agreed, was entitled to EUR 750,000. Therefore, the amount is considered outstanding payment and not compensation for breach of contract, hence no mitigation shall be considered.

➢ The initial breakdown of the amounts claimed, adds up to EUR 840,000. As the Player acknowledged that he received the payment of EUR 90,000, the Appellant is liable to pay to the Player the requested amount of EUR 750,000 and must pay to the Player interest of 5% p.a. on the amount.

PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT

20. On 22 July 2020, the Appellant filed a Statement of Appeal with the Court of Arbitration for Sport (the “CAS”) in accordance with Article 58 of the FIFA Statutes and Articles R47 and R48 of the Code of Sports-related Arbitration (2020 edition) (the “CAS Code”). In its submission, the Appellant requested the appointment of a sole arbitrator and to select English as the language of the proceedings.

21. On 31 July 2020, the First Respondent informed the CAS Court Office to agree to submit the case before a sole arbitrator and to confer the proceedings in English.

22. On 4 August 2020, the Second Respondent informed the CAS Court Office that it agreed to refer the matter to a sole arbitrator “as long as he or she is selected from the football list”.

23. On 13 August 2020, the Appellant filed its Appeal Brief pursuant to Article R51 of the CAS Code.

24. On 1 October 2020, the CAS Court Office informed the Parties that, pursuant to Article R54 of the CAS Code and on behalf of the President of the CAS Appeals Arbitration Division, the Arbitral Tribunal appointed to hear the appeal was constituted as follows:

Sole Arbitrator: Mr Frans de Weger, Attorney-at-Law in Haarlem, the Netherlands

25. On 17 October 2020, the First Respondent filed his Answer to the Appeal Brief in accordance with Article R55 of the CAS Code.

26. On 29 October 2020, the Second Respondent filed its Answer to the Appeal Brief in accordance with Article R55 of the Code.

27. On 11 November 2020, the CAS Court Office informed the Parties that, pursuant to Article R57 of the CAS Code, the Sole Arbitrator, after having consulted the Parties, had decided to hold a hearing in this matter. Per the same correspondence, the First Respondent was invited pursuant to Article R29 of the CAS Code, to submit an English translation of the documents that were only submitted in Spanish.

28. On 18 and 19 November 2020, the Respondents and the Appellant respectively, returned duly signed copies of the Order of Procedure to the CAS Court Office.

29. On 21 November 2020, the First Respondent submitted the English translation of Spanish documents, i.e. a translation of the employment contracts signed by the Player and additional translations of exhibit 1, 2 and 21.

30. On 8 December 2020, the CAS Court Office informed the Parties that the hearing would be held on 13 January 2021 by video-conference.

31. In addition to the Sole Arbitrator and Mr Antonio De Quesada, Head of Arbitration at the CAS, the following persons attended the hearing by video-conference on 13 January 2021:

a) For the Appellant: Mr Konstantinos Zemberis, Counsel

b) For the First Respondent: Mr Juan de Dios Crespo Pérez, Counsel and Mr Juan Crespo Ruiz-Huerta, Counsel and translator for the Respondent

c) For the Second Respondent: Mr Jaime Cambreleng Contreras, Head of Litigation and Saverio Paolo Spera, Senior Legal Counsel

32. Before the hearing was concluded, the Parties expressly stated that they did not have any objection with the procedure adopted by the Sole Arbitrator and their right to be heard had been respected.

33. On 18 January 2020, the CAS Court Office invited the Parties to file a post hearing brief limited to their comments on the relevance of the recently published CAS Award CAS

34. On 25 and 28 January 2021, the Respondents and the Appellant respectively, filed their post hearing briefs.

35. The Sole Arbitrator confirms that it carefully heard and took into account in its decision all of the submissions, evidence, and arguments presented by the Parties, even if they have not been specifically summarised or referred to in the present arbitral award.

SUBMISSIONS OF THE PARTIES

36. 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 Sole Arbitrator, however, has, for the purposes of the legal analysis which follows, carefully considered all the submissions made by the Parties, even if there is no specific reference to those submissions in the following summary.

A. The Appellant

37. On 13 August 2020, the Appellant filed its Appeal Brief pursuant to Article R51 of the CAS Code. This document contained a statement of the facts and legal arguments. The Appellant challenged the Appealed Decision, submitting the following requests for relief:

“1. to set aside the challenged decision;

2. to rule that the claim of the First Respondent was time-barred and to reject the claim on the basis as inadmissible;

3. to condemn the Respondents to the payment in the favour of the Appellant of the legal expenses incurred;

4. to establish that the costs of the arbitration procedure shall be borne by the Respondents.

Subsidiarily, and only in the event that the above is rejected:

1. to set aside the challenged decision;

2. to rule that there is no legal and/or sporting succession between the Old Entity (PAE O Aris Thessalonikis) and the Appellant;

3. to rule that the Appellant has no liability to pay any amount to the Respondent;

4. to condemn the Respondents to the payment in the favour of the Appellant of the legal expenses incurred;

5. to establish that the costs of the arbitration procedure shall be borne by the Respondents.

Subsidiarily, and only in the event that the above is rejected:

1. to set aside the challenged decision;

2. to rule that the First Respondent is not entitled to receive any amount from the Appellant and that the Appellant has no obligation towards the First Respondent or alternatively, to rule that the amount payable to the First Respondent is at maximum 260,000 euros and not 750,000 euros as mistakenly the challenged decision accepted;

3. to condemn the Respondents to the payment in the favour of the Appellant of the legal expenses incurred;

4. to establish that the costs of the arbitration procedure shall be borne by the Respondents”.

38. The Appellant’s submissions, in essence, may be summarised as follows:

1. Time-barred

➢ As to the admissibility of the claim of the First Respondent, filed on 15 May 2018 against the Appellant, the Appellant argues that the claim was evidently time-barred. More than two years have elapsed since the event giving rise to the dispute and consequently, in accordance with Article 25(5) of the applicable FIFA RSTP, the FIFA DRC shall not hear the case.

➢ The event giving rise to the dispute is not the affiliation of the Appellant to the HFF and its participation to the second division of the Greek Football League in the 2016/2017 season, but obviously the alleged violation of the Old Entity of the Private Agreement signed between the First Respondent and the Old Entity on 29 March 2012. Since the event giving rise to the dispute, i.e. the starting point of the counting of the two years as set out in Article 25 (5) of the FIFA RSTP, is the alleged non-payment of the agreed instalments of the Private Agreement, it is clear that the time limit of two years for the First Respondent to claim outstanding amounts related to the Private Agreement had already elapsed at the time the First Respondent lodged his new claim in front of FIFA on 15 May 2018.

➢ It is undisputed that the main object of the claim, the breach of the Private Agreement by the Old Entity and its consequences, refers to an event giving rise to the dispute that took place in 2012 and thus, the new claim of the First Respondent against the Appellant that was filed on 15 May 2018, has actually been filed almost four years late. As a result, the claim filed by the First Respondent before the FIFA DRC on 15 May 2018 was evidently time-barred and therefore, inadmissible.

2. Sporting successorship

➢ In relation to the sporting successorship of the Old Entity, the Appellant adheres that the CAS and the FIFA DRC has decided in some cases that, under certain circumstances, it is possible to consider a new entity as a successor of the old entity and to condemn the said new entity to take over and pay the debts of the old entity.

However, these cases are always cases where shady practices have been followed with the sole and clear aim that the club and/or its owner avoids the payment of outstanding and/or agreed amounts to players, coaches, other clubs and other creditors, including tax and national insurance obligations.

➢ The Appellant avers that the FIFA and CAS jurisprudence regarding sporting succession are not applicable in the present matter, since crucial elements of all those cases are significantly different than the ones in the present case, where, among others, there is no uninterrupted participation in the first (same) division and no players or other assets were transferred by the Old Entity to the Appellant. The CAS jurisprudence that acknowledged and accepted cases of so-called “sporting succession” in its entirety, concerns cases of clubs that had acquired in a public tender, auction or otherwise assets of the former club, including the federative rights and/or the licence to participate in the first division and actually did participate immediately and without any interruption in the top level divisions replacing the old club. In addition, in such cases, the management and/or the actual owners of both the old and the new club were usually the same and the new clubs had all or most of the players of the old clubs. The same applies for the FIFA jurisprudence. In other words, it is clear that in all the cases where succession was confirmed, FIFA and the CAS had discovered shady practices and a clear intention to circumvent laws and regulations and avoid obligations, while they were still enjoying and taking advantage of the assets of old clubs and were operating under the same management and/or were being controlled by the same persons and of course continued to play without any interruption in the same football division of their countries.

➢ In the present case, the Appellant did neither acquire the license of the Old Entity in order to continue to participate in the top division of Greek football while avoiding at the same time the payment of its obligations, nor had acquired in an auction or otherwise the assets (players, federative rights, etc.) of the Old Entity and certainly the Appellant is not owned and/or controlled by the same owner and the same management as the Old Entity.

➢ The Old Entity participated during the 2013/2014 season in the Greek Superleague and then, after the Old Entity entered into liquidation, the amateur association ARIS AS participated during the seasons 2014/2015 and 2015/2016 in the third (amateur) division, i.e. the lowest division of Greek football.

➢ There is also no sporting succession since the sporting continuity has been interrupted between the Old Entity and the Appellant, as the Old Entity has been entered into liquidation due to its severe financial problems and the Appellant did neither acquire any federative or other license right of the Old Entity nor any of the players and/or other assets of the Old Entity, but actually the starting point of the Amateur Association ARIS was the lowest division of Greek football and then the Appellant, as from its incorporation, participated in the second division following

promotion of the Amateur ARIS from the third division and then it was promoted to the Superleague.

➢ If there were any succession between clubs, such succession would primarily be between the Old Entity and the Amateur association ARIS that started playing in the amateur third division, following the Old Entity’s entering into liquidation and disaffiliation from the HFF. However, in CAS 2016/A/4918, the CAS already ruled that the Amateur association ARIS is not a sporting successor of the Old Entity. Consequently, there can be no sporting succession between the Old Entity and the Appellant either, since the Appellant has only been incorporated in the summer of 2016 by the Amateur association ARIS following its promotion from the amateur third division to the professional second division (Football League), pursuant to Greek Sports law. As such, since the Appellant has been incorporated only in 2016 and the Amateur association ARIS who competed in the 2014/2015 season in the third division, after the Old Entity’s disaffiliation from the HFF and entering into liquidation, is not the sporting successor of the Old Entity, there is definitely no sporting continuity between the Old Entity and the Appellant.

➢ The Appellant and the Old Entity are two completely different entities. The Appellant has been founded long after the Old Entity entered into liquidation to be dissolved and had been disaffiliated from the HFF. Furthermore, the Appellant has not acquired any of the assets of the Old Entity and it has a totally different management and different owner.

➢ The Appellant never created the impression that it wanted to be legally bound by the obligations of the Old Entity, it did not take over the license or federative rights of the Old Entity, it did not acquire any of the assets of the Old Entity and was not treated as the Old Entity by the HFF. To the contrary, the HFF has many times explained and confirmed that no succession exists between the two entities. FIFA, in line with its firm position that it needs to trust the information provided by its member association, unless it has grounds to believe otherwise, has in previous cases, accepted the explanations and statements of the HFF, which is the only competent authority to provide information to FIFA and inform FIFA whether there is a succession between two clubs and whether a club is affiliated to the HFF or not.

➢ The Panhellenic Association of Professional Football Players (PSAP), the Greek member of the FIFPro has confirmed that there is no financial claim whatsoever of the union and of its members against the Appellant for whichever reason, despite the fact that it was aware that many players have claims against the Old Entity.

➢ The Appellant is using the same, more or less, logo and the same stadium (where it also has its office), due to the participation of the Amateur association ARIS and following the pertinent concession by the Amateur association ARIS against a considerable remuneration. However, from CAS 2020/A/7092 it follows that the same stadium and the same registered address is of minor importance and the

undisputed lack of common ownership and/or management is an important element against the sporting succession of an old entity.

➢ The Appellant wishes to point out that the First Respondent did not submit any evidence before the FIFA DRC to support and substantiate his allegation that the Appellant is the sporting successor of the Old Entity and thus, the FIFA DRC should have rejected the allegation and the claim of the First Respondent as far as the sporting succession is concerned as unsubstantiated and not proven, since the First Respondent did not discharge his burden of proof with respect to the sporting successorship. The FIFA DRC mistakenly accepted the First Respondent’s allegation by referring to jurisprudence which cannot really be taken into consideration as a precedent, since the relevant decision was taken without any defence by the Appellant and thus, the FIFA DRC just accepted in that case the allegations as uncontested.

➢ The award in CAS 2020/A/7092 is fully applicable to the present matter and procedure, since both the background and the facts, details and evidence of the two cases are very similar and need to receive by the CAS the same treatment and the same considerations. Although each FIFA body is not directly bound by the decisions of another FIFA body, the Second Respondent cannot convincingly argue that there is no relevance between the jurisprudence of the different FIFA judicial bodies, since the way that FIFA assesses and decides whether in each particular case there is a sporting succession must be the same and must follow the same criteria, the same principles and of course the same CAS jurisprudence, irrespectively of whether such jurisprudence is the result of an appeal against a decision of the FIFA DRC or of the FIFA DC.

➢ In CAS 2020/A/7092, the Panel seems to confirm the relevance and the decisive importance of immoral practices such as shady and fraudulent practices and a clear intention to circumvent laws, regulations and obligations in deciding a possible sporting succession. Moreover, the award also confirms that the Second Respondent is not bound by its previous decisions with respect to the same party and can deviate from them and even take an opposite decision when during a procedure there are elements and evidence that had not been taken into consideration before the same or any other body of FIFA.

➢ It cannot be disputed that the elements acknowledged by the panel in CAS 2020/A/7092 as the most important ones in the assessment of sporting succession, are all against considering the Appellant as the sporting successor of the Old Club, that is, the Appellant did not have common players with the Old Club, has different owner and management, did not acquire the federative rights of the Old Club and the right/license to participate in the same category and of course did not acquire any of the rights of the Old Club and did not claim any amounts that the Old Club was entitled to receive according to decisions of FIFA or as solidarity contribution for players trained by the Old Club.

3. Diligence of the creditor

➢ With reference to the CAS award CAS 2011/A/2646, the Appellant adheres that if there is at least a theoretical possibility that the player could have recovered his claim in the bankruptcy proceedings, which would have made FIFA sanctions groundless and pointless, the Player by not trying to recover his credit in the bankruptcy proceedings, has forfeited his right to request that sanctions be imposed on the new club. Applying this reasoning to the current matter mutatis mutandis the First Respondent was not entitled to claim the amount allegedly due by the Old Entity from the Appellant, due to the fact that the First Respondent had forfeited such right by not announcing its claim to the liquidation procedure of the Old Entity and by not showing the necessary and expected diligence in recovering his claim. It is irrelevant whether the First Respondent knew the existence of such possibility or not, since according to FIFA jurisprudence, the creditor could not invoke lack of knowledge as a defence, because he was obliged to show the proper diligence in recovering his claim.

4. The amount awarded to the First Respondent

➢ In no case could the Appellant be liable to pay any kind of compensation to the First Respondent for a breach committed by the Old Entity and not by the Appellant.

➢ It is clear that a sporting successor could be held liable to pay any outstanding amounts that were due by the old club, but it obviously cannot be condemned to pay compensation for an alleged breach that was committed by the old club and not by the actual new club that is found to be a sporting successor. The Appellant thus avers that the Appealed Decision erroneously arrived at the preposterous conclusion that the Appellant is liable to pay the First Respondent the amount of EUR 750,000 which, according to the wrong view of the Appealed Decision, is supposedly not a compensation/consequence for the breach of the Private Agreement, but an outstanding amount.

➢ In addition, the representatives of the Old Entity signed the English and the Spanish version of the Private Agreement under duress, in their effort to secure the license for the following season and in fact, the Spanish version without even understanding its content. The only version of the Private Agreement that should be taken into consideration by the FIFA DRC, is the English version that both parties understood and which was actually signed by the First Respondent himself.

➢ Moreover, Clause 4 of the Spanish version of the Private Agreement, was against morality and imposed an excessive burden on the Old Entity. For this reason, the clause should be considered null and void and should not be taken into consideration. Furthermore, in case it is decided that Clause 4 of the Spanish version is valid and applicable, the Appellant stresses that the penalty is clearly disproportionate and against morality and shall be reduced to the appropriate level.

Furthermore, it derives from said provision that the First Respondent is empowered to request the full performance of the Employment Contract, which is something that evidently cannot be done. Subsequently, this would also require the First Respondent to provide his professional services, which undoubtedly is currently not an option.

➢ The Appealed Decision also failed to correctly calculate the residual amount of the Employment Contract by simply accepting the calculation of the First Respondent. Since the Old Entity paid “some” of the instalments of the termination agreement, which normally means more than two of them, it follows that the Old Entity had already paid at least EUR 120,000 of the amount agreed by means of the termination agreement and thus, has paid all the instalments of the Employment Contract of 9 July 2010 up to end of May 2011 and then paid another EUR 90,000 corresponding to the first instalment of the Private Agreement.

➢ Even if Clause 4 of the Spanish version of the Private Agreement was meant to be a compensation for the case of breach of the Old Entity obligations, the Appealed Decision should have reduced the amount by deducting any amount that the First Respondent has earned or failed to earn during the original period of duration of the Employment Contract of 9 July 2010 until 30 June 2013, due to the obligation of the First Respondent to mitigate his damages in accordance with Article 337c Swiss Code of Obligations (the “SCO”) and in general had to reduce any such compensation to the appropriate level.

B. First Respondent

39. On 17 October 2020, the First Respondent filed his Answer in accordance with Article R55 of the CAS Code, submitting the following requests for relief:

“1. To dismiss the Appeal filled [sic] by ARIS FC against the Player with respect to the decision rendered by the FIFA DRC on the 4th of June 2020, communicated to the Parties with the grounds

2. To confirm the decision rendered by the FIFA DRC on the 4th of June 2020, communicated to the Parties with the grounds on the 1st of July 2020, whereby the Appellant was ordered to compensate the First Respondent in the amount of EUR 750,000,00 plus interest at the rate of 5% p.a. as follows:

On the amount of EUR 380,000 as from 31 May 2012 until the date of effective payment; On the amount of EUR 35,000 as from 31 August 2012 until the date of effective payment; On the amount of EUR 90,000 as from 31 October 2012 until the date of effective payment; On the amount of EUR 110,000 as from 31 January 2013 until the date of effective payment; On the amount of EUR 135,000 as from 30 March 2013 until the date of effective payment.

3. To condemn the Club to the payment of the whole CAS administration cost and the Arbitrators fees.

4. To fix a sum of 40,000 CHF to be paid by the Club to the Player to help the payment of his legal fees covering the costs of its legal representation in front of the judicial bodies of the Court of Arbitration for Sport”.

40. The submissions of the First Respondent, in essence, may be summarised as follows:

1. Time-barred

➢ The allegations of the Appellant whether the claim of the First Respondent was timebarred is based on an incorrect interpretation of Article 25(5) of the FIFA RSTP. The true event giving rise to the dispute is the confirmation of the HFF of the reaffiliation of the Appellant to the HFF on 1 July 2016, and its subsequent resumption of participation in the second division of the Greek football league during the 2016/2017 football season. Up until this point, it would not have been possible for the First Respondent “to assert his claim through the apparatus of FIFA”.

➢ In this regard, the First Respondent referred to the CAS award CAS 2016/A/4918, following which the CAS appears to be open the possibility of granting a “new” claim against a “different” legal entity, provided that (1) the mandatory procedures set out in the applicable regulations are adhered to, and (2) the claimant is able to discharge to burden of proving that the current entity is the sporting successor of the indebted former entity.

➢ The current matter clearly fulfils the criteria as envisaged in CAS 2012/A/2919, as the Appellant and the First Respondent had mutually agreed on a new payment schedule, as a result of Appellant’s (Debtor) request, and the First Respondent (Creditor) was bona fide in relying on the same.

➢ Moreover, in terms of Swiss law, more precisely Article 135 and 137 of the SCO, the First Respondent’s claim is not time-barred since the two-year limitation set out in Article 25(5) of the FIFA RSTP, pursuant to mandatory Swiss law rules, was interrupted on 29 May 2014, upon the submission of the First Respondent’s statement of claim to FIFA. Accordingly, a fresh two-year period of limitation begun anew as of 12 March 2015, being the date on which the First Respondent received the communication that, due to the Appellant’s loss of affiliation to the HFF, FIFA was not in a position to proceed with his claim.

➢ Thus, by virtue of the Appellant’s loss of affiliation to the HFF, and the First Respondent’s resultant inability to assert his claim, the new two-year period of limitation was accordingly suspended until the Appellant’s re-affiliation to the HFF was confirmed on 1 July 2016, being the earliest date on which the First Respondent could have resumed with his claim. In terms of Article 128(3) of the SCO, the First Respondent’s claim will only prescribe on 1 July 2021 in terms of Swiss law, i.e. five years after the Appellant’s re-affiliation to the HFF was confirmed on 1 July 2016.

2. Sporting successorship

➢ Contrary to the statements of the Appellant, the First Respondent is of the opinion that the Appellant is either the same entity or as the sporting successor of the Old Club, bound by a valid decision of the FIFA DRC.

➢ While the First Respondent concurs with the Appellant regarding the various shady practices adopted by clubs seeking to avoid having to comply with their payment obligations, the First Respondent disagrees with the Appellant that the jurisprudence of FIFA and the CAS is not applicable to the present matter, since crucial elements are significantly different from the ones in the present case. FIFA and the CAS have thus demonstrated a degree of willingness to accept that a debt, contracted in the past, by an organization that is now legally dissolved, is enforceable against the new entity, despite the fact that a liquidation procedure has been completed according to national law, provided that certain criteria are established.

➢ Article 15(4) of the FIFA Disciplinary Code (the “FDC) does not constitute a numerous clausus for the purposes of determining the issue of sporting succession, and, accordingly, the FIFA DRC and/or CAS, retain a discretion to consider any other elements which they may deem relevant in determining the outcome of a dispute. Despite the Appellant’s attempted outward manifestation of its intention to be recognized as its own separate legal and/or sporting entity, which it claims is accordingly not responsible for the debts of the Old Club, internally, however, it continues to identify itself as the same entity for the purposes of arranging and conducting its affairs and activities.

➢ In this regard, it should be noted that (i) both the entities hold their local matches at the same stadium despite there being at least three potential stadiums in the city of Thessaloniki, (ii) both the Old Club and the Appellant completed in the Greek league under the name “ARIS FC” or “Aris Thessaloniki”, (iii) the Old Club and the Appellant are distinct entities, in that the former is a football societé anonyme (“f.s.a”.), and the latter is an amateur sporting association, (iv) both of the entities use the same colours (i.e. yellow-black) and (v) both the Appellant and the Old Club identify themselves according to the same footballing heritage and historical figures, thereby seeking to exploit supporter’s affiliation these icons and momentous events in order to maximize financial gains. The website of the Appellant published two statements, which make numerous explicit references to the name of the Old Club when providing information regarding the organization of its internal state of affairs, almost a whole two years following the Appellant’s re-affiliation to the HFF in July 2016.

➢ The factor of the same players is not definitive in and of itself, as, when considered in relation to the totality of the other evidence against the Appellant, the Appellant has not tendered any evidence which could be used in support of its statements that the Appellant is not owned and/or controlled by the same owner and the same

management as the Old Club and finaly, although jurisprudence suggests that one entity must directly replace the other in the same division, in order for there to be sporting succession, this element should not be afforded too much weigh, as the Appellant was able to benefit from its relegation, in that it was afforded an opportunity to get its affairs in order before returning to the top division. Consequently, it is possible to conclude that there has been sporting succession between the Appellant and the Old Club, as five of the seven criteria listed in Article 15 (4) of the FDC, have demonstrated to be in favour of the First Respondent.

➢ In addition, unlike in CAS 2020/A/7092, which concerns an appeal from a decision of the FIFA DC, the present case is based on an appeal of a decision rendered by the FIFA DRC. In the current matter the First Respondent is merely seeking an order which confirms the decision of the FIFA DRC rendering the Appellant liable for payment of the Old Club’s outstanding financial obligations towards the First Respondent.

➢ Moreover, as also follows from CAS 2020/A/7092, sporting federations and sporting arbitral institutions are not bound to follow a system of binding precedents whereby like cases shall be decided alike, such analysis is to be made on a case-bycase basis, i.e. elements present in a certain case tip the balance in one direction, whereas elements present in a lesser or higher degree in another case, may tip the balance in the opposite direction.

3. Diligence of the creditor

➢ The jurisprudence relied upon by the Appellant in order to demonstrate a lack of diligence of the First Respondent by failing to announce his claim within the bankruptcy, liquidation or other relevant procedures, is not relevant with regard to the current dispute under consideration, and thus should not be applicable.

➢ The main considerations which informed the outcome in CAS 2011/A/2646 was the request that disciplinary sanctions be imposed by means of the old Article 64 of the FDC (new Aricle 15 of the FDC), in order to enforce and ensure compliance with a prior judicial award. Whereas, in the current matter, the emphasis is more on the First Respondent’s attempt to achieve fulfilment of outstanding obligations owed to him by the Appellant, and not the imposition of disciplinary sanctions, as the latter is only permissible with regard to vertical disputes between FIFA and its subordinate entities.

➢ Moreover, disciplinary sanction can only be imposed in terms of vertical disputes, whereas the current dispute is a horizontal dispute, ground in contract, where there is no hierarchy between the Parties. The current dispute should be viewed as notionally distinction from the above situation, in that First Respondent was, at no stage prior to the Appealed Decision being rendered was in possession of an arbitral award which it could have used to assert his rights.

➢ Furthermore, the First Respondent’s conduct cannot be seen as a tacit waiver of his right to collect the debt, rather, the First Respondent submits that precluding him from asserting a valid claim before FIFA could potentially amount to either a denial of justice or an infringement of the right to be heard, which is accordingly not permissible in terms of Swiss public policy.

➢ The First Respondent is aware that a certain level of diligence is required when seeking to recover outstanding payments, which is why the Player attempted to enforce his claim in front of FIFA on 29 May 2014, however, due to circumstances beyond his control, it was not possible to recover the outstanding payments.

➢ The jurisprudence relied on by the Appellant in support of its submission is not relevant with regard to the current dispute, as the factual circumstances and objectives of the parties in each is so distinct that it is not possible for one to have bearing on the other.

4. The amount awarded to the First Respondent

➢ The First Respondent was entitled to receive the amount of EUR 750,000 which was correctly awarded to him in the Appealed Decision. Once sporting succession has been found to exist, the debt of a previous entity, whatever form they may take, can be imputed onto the new entity, who will accordingly be responsible for discharging same.

➢ In relation to the contention that both agreements were signed under duress, the First Respondent would like to point out that he was accordingly unaware of the background discussions taking place between the Appellant and the HFF, and that he should accordingly not be penalized or held responsible for the Appellant’s apparent failure to get their state of affairs in order. In addition, the allegation regarding the Appellant’s inability to understand the Spanish version of the Private Agreement cannot be sustained, as a result of the intertwined principles of freedom of contract, caveat subscriptor and pacta sunt servanda which accordingly preclude the Appellant denying that it is bound by the Spanish version of the Private Agreement, concluded on 30 March 2012.

➢ The First Respondent strongly rejects the assertion that “the only version of the [Private Agreement] that should be taken into consideration by the FIFA DRC, is the English version”. Clearly, and according to simple logic, the Spanish version of the Private Agreement concluded the day of the English version of the Private Agreement should be preferred, regardless of it forms, as it is the most recent expression of the will of the Parties. Accordingly, the Appellant bears the burden of proving its allegation that the penalty is “grossly disproportionate in accordance with Swiss Law”, as it has not tendered any evidence which give support to same.

➢ With regard to the arguments of the Appellant that specific performance of the terms of the Employment Contract is not possible, the First Respondent highlights that he only requests specific performance of the Appellant’s obligations and the entirety of the Employment Contract.

➢ In relation to the alleged failure of the First Respondent to mitigate his damages the First Respondent states that in line with CAS 2018/A/6029 it would have been impossible for the First Respondent to do more than signing an employment contract with the Spanish football club Real Murcia C.F. S.A.D. exactly one day after the termination agreement with the Appellant was signed.

C. Second Respondent

41. On 29 October 2020, the Second Respondent filed its Answer in accordance with Article R55 of the CAS Code, submitting the following requests for relief:

“(a) rejecting the reliefs sought by the Appellant;

(b) confirming the Appealed Decision;

(c) ordering the Appellants to bear the full costs of these arbitration proceedings

(d) ordering the Appellant to make a contribution to FIFA’s legal costs”.

42. The submissions of the Second Respondent, in essence, may be summarised as follows:

1. Time-barred

➢ The Appellant’s line of reasoning bears a fundamental flaw in considering that the Player lodged the relevant claim only in May 2018. The First Respondent initiated his action in relation to the contractual dispute with the Old Club on 29 August 2014, i.e. within the statute of limitations provided for in the FIFA RSTP. As far as the prescription of his claim is concerned, the First Respondent’s action was interrupted since then.

➢ The case at stake presents a particular scenario, which requires to integrate the lacuna in the FIFA RSTP. In particular, it is necessary to interpret if and when the prescription period of Article 25(5) of the FIFA RSTP can be considered to have been interrupted. As per the constant jurisprudence of the CAS, such as CAS 2016/A/4846 and CAS 2019/A/6525, and the indication of authoritative doctrine, this provision of the FIFA RSTP has to be interpreted – and any lacuna be filled – in light of Swiss law, more precisely Article 138 of the SCO.

➢ By having filed a claim on 29 August 2014, the First Respondent interrupted the limitation period. The dispute was not “settled” by the FIFA DRC as per Article 138

of the SCO until the said judicial body rendered the Appealed Decision. In this respect, the Player’s correspondence of 8 May 2018 by means of which he asked the FIFA DRC to pass a decision against the Appellant does not have to be understood as a new claim, but rather as a continuation of the action he initiated on 29 May 2014. Consequently, the claim of the First Respondent was not time-barred and the arguments of the Appellant in this regard should be dismissed.

2. Sporting successorship

➢ The Appellant is to be considered by all means the Old Club’s sporting successor. In this regard, the reasoning of the Appellant contains some fallacies. The first flaw in the Appellant’s line of defence consists in portraying the necessity of suspicious intentions behind the bankruptcy of the old club for the sporting succession to produce its effects upon the new club vis-à-vis the creditors of the old club. Although when football clubs are concerned by insolvency proceedings, bankruptcy and sporting succession somehow end up dovetailing, these are two different concepts that pertain to different domains and should not be conceptually juxtaposed.

➢ From CAS 2013/A/3425, it follows that there can be sporting succession without bankruptcy proceedings having occurred since not all cases of sporting succession are triggered by the inability of a club to face its financial obligations.

➢ Most importantly, however, the obligation resting with the successor to pay the predecessor’s previous debts is not dependent on whether the reasons triggering the bankruptcy ab initio were legitimate or suspicious, but on the fact that a new club takes over the old club’s assets and its sportive distinctive traits.

➢ In other words, a finding of sporting succession does not have to derive necessarily from a fraudulent conduct, nor does FIFA have to prove the existence of “shady practices” from the sporting successor. While this can certainly be an element to take into account when analysing a concrete scenario, it nevertheless does not constitute a conditio sine qua non for the Committee – or the Sole Arbitrator – to be able to conclude that sporting succession occurred. In casu, it is evident that the Appellant took advantage of the situation to make use of the essential elements that conformed the Old Club and with which the fans use to identify Aris FC, in order to continue with that club’s activity. Even if the Appellant’s stance does not contravene any rule in Greece, it does create a situation that is undesirable and unwarranted in football.

➢ Despite the fact that there is extensive CAS case law indicating that whether a club is operated through a different legal entity, this does not bear relevance on whether a sporting succession has taken place or, as put by the CAS in 2013/A/3425 “[…] a club is a sporting entity identifiable by itself that, as a general rule, transcends the legal entities which operate it […]”.

➢ FIFA deciding bodies are not bound by previous decisions that it has rendered, i.e. its rulings do not have to observe the principle of stare decisis let alone those passed by other deciding bodies. Furthermore, like any deciding body within FIFA, the FIFA DRC always deals with its cases on a case-by-case basis analysing and taking into account all the specific circumstances of each case. For example, the findings of the panel in CAS 2020/A/7092 heavily rely on Italian law, however, in the present case the Appellant itself agreed with FIFA that the present dispute shall be decided according to the various FIFA Regulations and Swiss law. As such, the aformentioned CAS award is of limited relevance to decide the present case due to the individualized analysis that is required from any proceeding or disciplinary nature.

➢ The specific circumstances of this case show that the Appellant is the Old Club’s sporting successor. In this regard, the Second Respondent stresses that both (i) clubs have always been identified, and competed, simply as “Aris” or “Aris Thessaloniki FC”, (ii) the team’s emblem has remained unchanged, (iii) the Appellant is playing its local matches in the same stadium where the Old Club was playing, i.e. the Kleanthis Vikelidis Stadium, located in Thessaloniki, (iv) the two clubs share the same colours, i.e. yellow and black, (v) according to the information retrievable through the Appellant’s media channels, the two clubs share the same history as well, (vi) there is no indication on the Appellant’s official website of discontinuity with the Old Club (same date of foundation, only one loge defining the club as from its birth in 1914 and the list of titles and achievements of the team starts as from 1928) and (vii) the Appellant itself confirms having acquired the Old Club’s assets from the Amateur Sports Association.

➢ During the hiatus between the liquidation of the Old Club and the creation of the Appellant, the Amateur Sports Association was competing in the amateur Greek championship (i.e. the 3rd national division). In other words, the sporting continuity has been preserved by means of the creation of another entity in the form of an f.s.a. (the Appellant) capable of replacing in the Greek Professional League the one that went bankrupt (the Old Club), maintaining all the sporting traits of the latter, while in the meantime the Amateur Sports Association kept on existing and competing in the amateur leagues.

➢ In this regard, the Appellant was already found to be the Old Club’s sporting succesor by the FIFA Disciplinary Committee (the “FIFA DC”) within the scope of four different proceedings (all of which involved breaches of Article 64 of the FDC for not respecting the FIFA DRC decisions passed on 2013 and 2015) and never appealed any of the respective decisions. As a matter of fact, the Appellant has already reached payment agreements with the creditors or even fully paid said debts in compliance with the relevant decisions. It seems that, up to the moment it lodged this appeal, the Appellant itself never considered not to be the Old Club’s sporting successor.

➢ The fact that the Panhellenic Association of Professional Football Players (PSAP) has not filed (yet) claims against the Appellant does not mean per se that a sporting succession with the Old Club has not occurred. The two circumstances are completely different and independent from each other.

➢ The Second Respondent deems that there is really no other option than to conclude that the Appellant is the Old Club’s sporting successor and thus the Appealed Decision was right in its finding. Once the sporting succession is established, according to the CAS case law, the successor is held liable for the debts generated and not fulfilled by the previous clubs being replaced, and this on the basis of the sporting continuity of the club in light of the lex sportiva. Consequently, the Appealed Decision correctly found that the Appellant was the entity ultimately liable to pay to the Player the amounts which were deriving from the contractual breaches attributable to the Old Club.

3. Due diligence of the creditor

➢ While the decision appealed against in CAS 2011/A/2646 was a decision of the FIFA DC, the Appealed Decision in these procedures is a decision of the FIFA DRC. In other words, the very nature of the challenged ruling does not allow any meaningful parallels between the two scenarios to start with. The Appealed Decision did not (and could not) sanction the Appellant as a result of his failure to comply with the CAS Award (which was the subject matter of the appeal in CAS 2011/A/2646). As such, the nature of the Appealed Decision does not allow speculations on the possibility to sanction a debtor club in relation to the diligence exercised by the creditor in the context of the local bankruptcy proceedings. Such argument should therefore be rejected by the Sole Arbitrator.

4. The amount awarded to the First Respondent

➢ In line with the constant CAS jurisprudence which confirms that FIFA does not have standing in so-called ‘horizontal’ disputes, once the admissibility of the Player’s claim which led to the Appealed Decision has been addressed and confirmed, it becomes unnecessary for the Second Respondent to comment on a dispute which exclusively concerns the other parties to this arbitration. The Second Respondent thus respectfully declines to comment on the merits of the contractual dispute (save for the already addressed issues concerning the admissibility of the First Respondent’s claim before the FIFA DRC and the issue of the sporting succession) and simply refers to the FIFA DRC’s findings in what we find is a sound and well-grounded Appealed Decision.

JURISDICTION

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

“An appeal against the 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”.

44. The jurisdiction of the CAS derives from Article 58(1) of the FIFA Statutes (2019 edition) which reads:

“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”.

45. The jurisdiction of the CAS is further confirmed by the Orders of Procedure duly signed by the Parties.

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