Beijing Renhe FC, Marcin Robak

V. JURISDICTION

56. The jurisdiction of CAS, which is not disputed, derives from Article 67(1) of the FIFA Statutes (2015 edition) as it determines that “[a]ppeals against final decisions passed by FIFA’s legal bodies and against decisions passed by Confederations, Members or Leagues shall be lodged with CAS within 21 days of notification of the decision in question” and Article R47 of the CAS Code.

57. The jurisdiction of CAS is further confirmed by the parties by means of their signatures on the Order of Procedure.

58. It follows that CAS has jurisdiction to adjudicate on and decide the present dispute.

VI. A DMISSIBILITY

59. The appeal was filed within the deadline of 21 days set by Article 67(1) of the FIFA Statutes. The appeal complies with all other requirements of Article R48 of the CAS Code, including the payment of the CAS Court Office fees.

60. It follows that the appeal is admissible.

VII. A PPLICABLE LAW

61. Article R58 of the CAS Code provides the following:

“The Panel shall decide the dispute according to the applicable regulations and, subsidiarily, to the rules of law chosen by the parties or, in the absence of such a choice, according to the law of the country in which the federation, association or sports-related body which has issued the challenged decision is domiciled or according to the rules of law the Panel deems appropriate. In the latter case, the Panel shall give reasons for its decision”.

62. The Panel notes that no specific choice of applicable law is made by the parties in the Draft Employment Contract.

63. The Club does not put forward any specific submissions regarding the applicable law, but refers in its submissions to provisions of Chinese contract law.

64. The Player argues that when deciding a dispute before the FIFA DRC, FIFA’s regulations shall prevail over any national law chosen by the parties. The Player additionally refers to Swiss law in his written submissions.

65. The Panel is satisfied to accept the primary application of the various regulations of FIFA as the parties elected to submit their dispute to the FIFA DRC and subsequently to CAS.

66. Article 66(2) of the FIFA Statutes determines the following:

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

67. The Panel finds that the various regulations of FIFA shall be applied primarily, and subsidiarily Swiss law, should the need arise to fill a possible gap in the various regulations of FIFA. Where the Club specifically relies on Chinese law, the Panel will assess the relevance thereof in respect of such specific references.

VIII. MERITS — A. The Main Issues

68. The main issues to be resolved by the Panel are:

i) Was the Draft Employment Contract validly concluded? ii) What is the nature of the Draft Employment Contract? iii) Did the Club breach the Draft Employment Contract? iv) If so, what amount of damages is the Player entitled to receive from the Club?

i) Was the Draft Employment Contract validly concluded?

69. The Panel observes that Mr Pengfei Liu testified during the hearing that he was not authorised by the Club to send the Draft Employment Contract to the Player for him to sign it. Rather, he stated that he signed the Draft Employment Contract on behalf of the Club and that he did not inform the Club that he sent this document to the Player. He also testified that he considered to have done nothing wrong as the Draft Employment Contract was not sealed, which is allegedly a legal requirement in China for a contract to be valid.

70. The Panel also observes that the Player testified that he did not verify in any way whether Mr Pengfei Liu was authorised to represent the Club in concluding the Draft Employment Contract. The Player also stated that after the signing of the Draft Employment Contract he waited to be invited to come to China to undergo the medical examination before he would be officially presented as a new player of the Club. The Player considered the medical examination a “stage that has to happen before getting to the Club”. Following a question from counsel for the Player

whether he considered that the employment contract was dependent on the result of the medical examination, the Player answered “no”.

71. Although the Panel finds the issue of whether or not Mr Pengfei Liu was authorised by the Club to conclude a contract on its behalf interesting, and despite the extensive submissions and pleadings of counsels in this respect, it does not deem it necessary to examine this issue in more detail because, in any event, the Panel finds that the Club ratified the conclusion of the Draft Employment Contract with the Player afterwards.

72. Indeed, the Player testified that before he received the Draft Employment Contract he met with Ms Hawken, the owner of the Club, and Mr Lichtenstein in London on 25 June 2014 and that he was expecting to receive a contractual proposal from the Club after this meeting. The Player further testified that he received the Draft Employment Contract from his Agent, Mr Symon Patanovski, and that it already contained a signature at the location where the Club was supposed to sign and that it was in compliance with the discussions that had taken place in London earlier.

73. The Panel observes that after the alleged conclusion of the Draft Employment Contract, representatives of the Club made statements such as “[t]he pre-contract could not be executed because the two clubs could not make transfer deal on time” (email of Mr Zhang Yue to counsel for the Player dated 17 July 2014) and “[t]he player employment contract has not been signed due to the reason that the federal rights of the Player was not transferred to Guizhou Renhe FC” (email of Mr Zhang Yue to counsel for the Player dated 29 July 2014), following a request from counsel for the Player to pay the Player compensation for breach of contract based on the Draft Employment Contract (i.e. the Club did not deny the existence or the validity of the Draft Employment Contract, but rather argued that no definite employment contract could be concluded and that it therefore did not have any obligations vis-à-vis the Player on the basis of the Draft Employment Contract).

74. On the basis of these two statements, the Panel has no doubt to conclude that the Draft Employment Contract was validly ratified by the Club and that the entry into force was not prevented by the lack of authorisation of Mr Pengfei Liu or Mr Lichtenstein. Insofar these two persons were not authorised to conclude the Draft Employment Contract directly with the Player, this omission was repaired by the fact that the Club explicitly acknowledged the existence of the Draft Employment Contract (i.e. by means of the reference to “pre-contract” in Mr Zhang Yue’s email of 17 July 2014) and failed to challenge the validity thereof. The Panel finds that the Player could legitimately understand that the Club considered itself to be bound by the Draft Employment Contract. The absence of a seal does not make this any different.

75. Pursuant to a free translation into English of Article 38(1) of the SCO, “[w]here a person without authority enters into a contract on behalf of a third party, rights and obligations do not accrue to the latter unless he ratifies the contract”.

76. Contrary to the position of counsel for the Club at the hearing, the Panel finds that no active ratification was required, but that the passive or tacit ratification of the Draft Employment Contract by the Club sufficed.

77. The Panel feels itself comforted by legal literature in this respect:

“Die (Nicht-)Genehmigung ist grundsätzlich formlos möglich […] und kann daher auch konkludent, z.B. durch Vertragsdurchführung […] oder die Berufung auf Rechtsfolgen des Geschäfts […] erfolgen. Schweigen bedeutet jedoch im Zweifel […] und jedenfalls bei Fristsetzung nach Abs. 2 Nichtgenehmigung” (HONSELL H. (Ed.), Obligationenrecht, 2014, p. 174).

Freely translated into English:

“The (non-)approval is basically informal and can therefore also be implied, for example by execution of the contract or by relying on the legal consequences of the transaction. However, in case of doubt, silence shall mean non-approval, certainly in cases where a time-limit is set”.

78. The Club’s argument that it withdrew the offer in respect of the Draft Employment Contract before it was accepted by the Player must be dismissed for the same reason; the Club ratified the Draft Employment Contract afterwards (i.e. again Mr. Zhang Yue’s email of 17 July 2014: “Mr. Robak was satisfied with our offer”).

79. Insofar the Club argues that the validity of an effective employment contract was implicitly made conditional upon the conclusion of a transfer agreement between the Club and Pogon, the Panel finds that also this argument must be dismissed. Although a transfer agreement is in some way a tripartite constellation, the Draft Employment Contract in no way indicates that the validity thereof was made conditional upon the conclusion of a contract between one of the parties to the Draft Employment Contract (i.e. the Club) and a third party. Importantly however, and as will be examined in more details below, the Panel finds that the Draft Employment Contract is not a definite employment contract, but only a “pre-contract”. The Panel finds that these two kinds of agreements cannot simply be equated.

80. Consequently, the Panel finds that the Draft Employment Contract was validly concluded and entered into force.

ii) What is the nature of the Draft Employment Contract?

81. As already alluded to above, the Panel finds that the Draft Employment Contract cannot simply be equated to a definite/final employment contract. But that does not mean that the parties did not want to legally bind themselves at all through the Draft Employment Contract. What it could be construed as instead is a so-called preliminary contract/pre-contract.

82. According to general principles of law (for Switzerland see for example SFT 113 II 31 p. 35; SFT 118 II 32 p. 33), a preliminary contract is a contract that obligates the contracting parties to conclude another contract under the law of obligations, which is then called the main contract. It is a legal act creating a relationship of obligation, which is fulfilled by concluding the main contract. It therefore obligates someone to obligate himself/herself again at a later point in time.

83. The Panel observes that another CAS panel determined the following in respect of “pre - contracts” in football:

“Starting with the argument of the existence of a “precontract”, the Panel first noted that the FIFA Regulations and Swiss law do not provide a specific, explicit definition of a “precontract”. This notion is however well known in legal practice and the Panel would define it as the reciprocal commitment of at least two parties to enter later into a contract, a sort of “promise to contract” (in French: “promesse de contracter”). The clear distinction between a “precontract” and a “contract” is that the parties to the “precontract” have not agreed on the essential elements of the contract or at least the “precontract” does not reflect the final agreement. On the contrary, if the interpretation of the “precontract” leads to the conclusion that the parties agreed on all the essential elements of the final contract, on the basis of the general principles applicable to the conclusion of a contract as defined under Article 1 et seq. of the Swiss Code of Obligations (SCO), the “precontract” would be nothing else but the final contract (see notably Art. 1 and 2 par. 1 SCO). In this respect, the Panel stressed that it was well known that in contractual negotiations, the parties must consider the risk to be bound at an earlier stage than they sought. This risk is covered by specific wordings that one can find for instance in letters of intent, which can in some cases be considered as “precontract” as the parties agree on some important elements in view of the negotiation of the final contract and may provide for sanctions to be imposed in case of violation of specific commitments already taken at the level of the letter of intent. However, good practice requires from the parties to expressly mention that the document is not the final contract and that it does not represent the definitive agreement between the parties” (CAS 2008/A/1589, para. 13).

84. Although the CAS panel in CAS 2008/A/1589 concluded that the relevant contract was not a “pre-contract” but a definite employment contract because it contained all the essentialia negotii, the Panel in the present proceedings finds that several elements lead it to the conclusion that the Draft Employment Contract is a “pre-contract” rather than a definite employment contract.

85. First, the word “draft” in the title of the contract already indicates that it is not a final contract.

86. Second, the first sentence of clause 4 of the Draft Employment Contract shows that an “official contract” would be concluded “after the [Player] has passed medical examination in China”.

87. Third, the second sentence of clause 4 of the Draft Employment Contract shows that “the rest of articles and details of official contract will be decided by both Parties through friendly negotiation” [emphasis added by the Panel].

88. Fourth, in his email dated 17 July 2014, Mr Zhang Yue of the Club himself states that “[t]he pre-contract could not be executed because the two clubs could not make transfer deal on time” [emphasis added by the Panel].

89. Other indications for this are that the Draft Employment Contract does not contain a description of the duties of the Player, something you would normally expect to be adopted in a definite employment contract, and fails to set out conditions related to the Player’s accommodation, flight tickets and car.

90. For the reasons set out above, the Panel finds that the Draft Employment Contract does not contain all the essentialia negotii and cannot be considered as a definite employment contract.

91. Turning its attention to the finding of the FIFA DRC in the Appealed Decision that an employment contract cannot be made subject to the successful passing of a medical

examination, the Panel finds that this applies in particular to definite employment cont racts. Whereas it is clear why definite employment contracts cannot be made subject to a successful medical examination (in absence of objective criteria the fulfilment of this condition is arbitrary because it can be unduly influenced by the Club at will), the Panel fails to see why a “precontract” cannot be made subject to such condition. Indeed, specifically in the matter at hand, the Panel finds that it was not unreasonable for the Player and the Club to want some kind of certainty in the form of a “pre-contract” before having the Player come over to China to subject himself to a medical examination.

92. The panel notes and emphasizes in this context in particular the fact that the Player was well aware and accepted that he had to pass the medical examination, before he would get to the Club. By that admission, the Player was therefore not of the impression that the signing of the Draft Employment Agreement alone was a definite and final contract, but that important, medical preconditions had to be fulfilled before a final agreement could eventually come in place.

93. The view that a “pre-contract”, as opposed to a definite employment contract, may be made conditional upon the successful passing of a medical test appears to be supported also by FIFA. For example, in a decision of 24 October 2011, the FIFA DRC Judge reasoned as follows:

“Based on the clear wording of the aforementioned article of the Regulations [Article 18(4)], the DRC judged [sic] was eager to emphasize that par. 3 and 4 of said pre-contract [the clauses based on which the validity of the pre-contract was made conditional upon the successful passing of a medical examination] are to be considered as ambiguous and its application as arbitrary, since they lead to an unacceptable result based on non-objective criteria, which entitles the Respondent to unilaterally terminate the contract depending on the positive results of a medical examination carried out after the signature of the contract. Therefore, the DRC judge concluded that such clause inserted in an employment contract could not be considered as valid and pointed out that the lack of objective criteria by the application of the relevant rule would lead to an unjustified disadvantage of the Claimant’s financial rights and to the destabilization of a contractual relationship concluded in good faith by both parties.

Notwithstanding, the DRC judge was equally eager to stress that the pre-contract, according to the explicit wording of its par. 4, is a temporary agreement and that such condition was known to the Claimant by the time of its signature. By having agreed to sign the pre-contract, the player also accepted the condition of its provisory nature and of its possible, but not necessary, conversion into a permanent employment relationship with the Respondent, in case certain pre-requisites should be fulfilled” (Decision of the FIFA DRC Judge as published on the FIFA website, 24 October 2011, para. 16-17).

94. The Panel finds that by signing the Draft Employment Contract both parties accepted that the Player would have to pass a medical examination in China before a definite employment contract would be concluded.

95. The Panel finds that clause 4 of the Draft Employment Contract is perfectly valid, precisely because a definite employment contract is something else than a “pre-contract”. As alluded to above, one can understand that both the Player and the Club wanted to have some kind of certainty before the Player would come over to China to subject himself to a medical

examination. A medical examination of a football player is indeed a crucial element for a football club in deciding whether to contract a player or not and, in the opinion of the Panel, justifies that the Draft Employment Contract is not considered as a definite employment contract. There is no reason for the Panel to assume that the Club used this clause in bad faith, especially since it never invited the Player to subject himself to a medical examination.

96. Different from the condition in respect of the medical examination, the allegedly impli ed condition that a transfer agreement would have to be concluded between the Club and Pogon before a definite employment contract could be concluded with the Player is not adopted in the Draft Employment Contract.

97. The issue of whether a “pre-contract”, or indeed a definite employment contract, is automatically conditional upon the conclusion of a transfer agreement, regardless of whether such condition is explicitly set out in the relevant contract, is an important question for the practice of transferring football players. The Panel finds that it would indeed have been for the Player and the Club to make the Draft Employment Contract explicitly conditional upon the conclusion of a valid transfer agreement between the Club and Pogon. The Panel considers it important in this respect that a player usually does not have any influence on the negotiations between the two clubs, whereas the player’s new club, by acting in one way or another, can unilaterally decide whether this condition will be complied with or not.

98. The Panel considers this interpretation to be in line with jurisprudence of the FIFA Players’ Status Committee (the “FIFA PSC”):

“[T]he Regulations are based on the following concept: first, the player’s former club and the new club should find an agreement and sign the relevant contract regarding the transfer of the player. Then, the medical examination should be performed and only then, with these prerequisites established and after careful research and taking all appropriate steps, the player and his new club should sign an employment contract” (Decision of the Single Judge of the FIFA PSC as published on the FIFA website, 19 March 2013, para. 14).

99. Indeed, the ordinary course of events for the Club would be to first conclude a transfer agreement with Pogon and only subsequently an employment contract. In the light of this, the Panel finds that it would have been for the Club to make explicitly clear to the Player that the validity of the Draft Employment Contract was conditional upon the conclusion of a transfer agreement with Pogon.

100. The Panel finds that, under the specific circumstances in the matter at hand, the Player and the Club clearly did not have the intention to conclude an official binding employment contract as both were aware that certain conditions would have to be complied with before it would enter into force. The Draft Employment Contract served as some kind of warranty for the contractual parties that they would not withdraw from the negotiations lightly and, indeed, already agreed on some of the main terms of the employment relationship.

101. Consequently, the Panel finds that the Draft Employment Contract is to be considered as a “pre-contract” rather than a definite employment contract.

iii) Did the Club breach the Draft Employment Contract?

102. As explained above, a preliminary contract is a contract under the law of obligations that creates the obligation to conclude a main contract at a later point in time. It already follows from this that a party to the preliminary contract is not entirely free to exclude itself from the negotiations in relation to the concluding of a final agreement. Instead, the parties must negotiate in good faith and should not abandon the negotiations without a compelling reason for doing so.

103. This duty to act in good faith already exists in fact at the time of contractual negotiations – i.e. independent of the existence of a written preliminary contract, letter of intent, or similar things – and is known as culpa in contrahendo. Culpa in contrahendo under the here applicable Swiss Law means the negligent/intentional breach of pre-contractual duties. A finding of culpa in contrahendo requires the existence of contractual negotiations, trust that merited protection, a breach of a duty, harm, a causal connection, and fault [includes intent and negligence]. The breach of a duty in particular derives from the principle of good faith. At the contractual negotiation stage it includes – regardless of whether a contract is later concluded – certain duties of care, considerateness, good faith, and of providing information, including the duty to negotiate seriously and in a fair manner. It essentially constitutes an independent basis of liability, somewhere between a contract and a tort. According to Swiss legal doctrine, it is a special form of liability for breaches of trust (see for example SFT 120 II 331 p. 335, 336).

104. It is clear that the aforementioned duties would have to apply even more so when the contractual negotiations have already found their way into a written preliminary contract, as in the one concluded by the Club and the Player in the present case.

105. Taking all this into consideration, the Panel finds that the Club did not negotiate the conclusion of a definite employment contract in good faith because it did not invite the Player to come to China to subject himself to the medical examination referred to in the Draft Employment Contract. Rather, the Club explicitly instructed the Player not to come to China. By doing so, the Club clearly violated a specific commitment that it had already made at the level of the preliminary contract. In other words, the inviting of the Player was definitely the next step towards the concluding of a final employment contract, and it was something that the Player was entitled to expect and to demand and through which the Club – at least for the time being – would have fulfilled its duties to act in good faith as described above.

106. Indeed, the Panel finds that the reason invoked by the Club for abandoning the negotiations (i.e. the fact that an employment contract could not allegedly be concluded with Pogon) is not a valid reason as this was not a condition explicitly set out in the Draft Employment Contract. The fact that a valid transfer agreement could not allegedly be concluded with Pogon is something that falls within the responsibility of the Club.

107. The Club did not submit any other reasons that might have justified the breaking off of the negotiations.

108. Consequently, the Panel finds that the Club breached its obligations vis-à-vis the Player under the Draft Employment Contract and is liable for the failure to sign the “official” contract, i.e. the final Employment Contract in the form requested by the CFA.

iv) If so, what amount of damages is the Player entitled to receive from the Club?

109. Just like the obligations deriving from a “pre-contract” are not the same as those deriving from a definite contract, the damages resulting from a “pre-contract” are not the same either. Indeed, the damages incurred in case of a breach of a “pre-contract” are generally lower as one needs to be conscious that there is still a chance that no definite agreement will come about.

110. Even if the Panel would follow the Club’s argument and conclude that no transfer agreement was concluded because of Pogon (i.e. Pogon being the wrongdoer), the Panel finds that Pogon cannot be held responsible for the Club’s breach of the Draft Employment Contract, for Pogon is not a party thereto. The Panel finds that the Club is therefore solely liable for any damages incurred by the Player.

111. In the matter at hand, the Player found new employment soon after the breach. His damages therefore remained fairly limited because the Player successfully mitigated his damages.

112. The Panel finds that the Player, on the one hand, lost a significant financial opportunity if one compares the terms of the Draft Employment Contract with the employment contract finally concluded with Pogon, however, on the other hand, it was for example not certain that the Player would pass the medical examination had he been invited to undergo such examination and that the parties would reach an understanding in respect of the “rest of the articles and details of official contract” in accordance with clause 4 of the Draft Employment Contract. The Panel finds that this uncertainty must be taken into account in awarding compensation for breach of contract to the Player.

113. The Panel finds that the scope of Article 17(1) of the Regulations is not limited to definite employment contracts, but that also the compensation for breach of a “pre-contract” can be calculated on this basis. Indeed, Article 17(1) of the Regulations is headed “consequences of terminating a contract without just cause”.

114. Article 17(1) of the Regulations determines as follows:

“In all cases, the party in breach shall pay compensation. Subject to the provisions of article 20 and Annexe 4 in relation to training compensation, and unless otherwise provided for in the contract, compensation for the breach shall be calculated with due consideration for the law of the country concerned, the specificity of sport, and any other objective criteria. These criteria shall include, in particular, the remuneration and other benefits due to the player under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, the fees and expenses paid or incurred by the former club (amortised over the term of the contract) and whether the contractual breach falls within a protected period”.

115. The Panel takes due note of previous CAS jurisprudence establishing that the purpose of Article 17 of the Regulations is basically nothing else than to reinforce contractual stability, i.e. to

strengthen the principle of pacta sunt servanda in the world of international football, by acting as a deterrent against unilateral contractual breaches and terminations, be it breaches committed by a club or by a player (CAS 2008/A/1519-1520, para. 80, with further references to: CAS 2005/A/876, p. 17: “[…] it is plain from the text of the FIFA Regulations that they are designed to further ‘contractual stability’ […]”; CAS 2007/A/1358, para. 90; CAS 2007/A/1359, para. 92: “[…] the ultimate rationale of this provision of the FIFA Regulations is to support and foster contractual stability […]”; confirmed in CAS 2008/A/1568, para. 6.37).

116. In respect of the calculation of compensation in accordance with Article 17 of the Regulations and the application of the principle of “positive interest”, the Panel follows the framework as set out by a previous CAS Panel as follows:

“When calculating the compensation due, the judging body will have to establish the damage suffered by the injured party, taking in consideration the circumstances of the single case, the arguments raised by the parties and the evidence produced. Of course, it is the injured party that requests compensation who bears the burden of making, as far as possible, sufficient assertions and who bears as well the burden of proof.

As it is the compensation for the breach or the unjustified termination of a valid contract, the judging authority shall be led by the principle of the so-called positive interest (or “expectation interest”), i.e. it will aim at determining an amount which shall basically put the injured party in the position that the same party would have had if the contract was performed properly, without such contractual violation to occur. Th is principle is not entirely equal, but is similar to the praetorian concept of in integrum restitution, known in other law systems and that aims at setting the injured party to the original state it would have if no breach had occurred.

The fact that the judging authority when establishing the amount of compensation due has a considerable scope of discretion has been accepted both in doctrine and jurisprudence (cf. CAS 2008/A/1453-1469, N 9.4; CAS 2007/A/1299, N 134; CAS 2006/A/1100, N 8.4.1. In relation to Swiss employment law, see Streiff/von Kaenel, Arbeitsvertrag, Art. 337d N 6, and Staehelin, Zürcher Kommentar, Art. 337d N 11 – both authors with further references; see also Wyler, Droit du travail, 2nd ed., p. 523; see also the decision of the Swiss Federal Tribunal BGE 118 II 312f.) (…).

The principle of the “positive interest” shall apply not only in the event of an unjustified termination or a breach by a player, but also when the party in breach is the club. Accordingly, the judging authority should not satisfy itself in assessing the damage suffered by the player by only calculating the net difference between the remuneration due under the existing contract and a remuneration received by the player from a third party. Rather, the judging authority will have to apply the same degree of diligent and transparent review of all the objective criteria, including the specificity of sport, as foreseen in art. 17 FIFA Regulations” (CAS 2008/A/1519-1520, at para. 85 et seq.).

117. The Panel finds that the legal framework set out above and the principle of positive interest are applicable to the present case and that it has a considerable scope of discretion in awarding compensation.

118. The Panel notes that the Draft Employment Contract refers to a starting date of 1 July 2014, whereas the Player only found new employment with Pogon on 1 August 2014. The Player therefore certainly incurred damages in this specific month, that is the loss of the salary, but, on

the other side, as the aggrieved party, he did not provide the proof of any other specific expenses or damages except the total amount written in the pre-contract.

119. The Club submits that its liability shall be limited to 30% of the losses as recognised by the FIFA DRC in the Appealed Decision. The Club argues that it shall be taken into account that the Draft Employment Contract was signed on 27 June 2014 and that the Player already found new employment on 1 August 2014. The Club concludes that the compensation to be awarded to the Player shall in any event not be higher than EUR 118,000 (which is equivalent to the Player’s salary with Pogon between 1 August 2014 and 30 June 2016).

120. The Player argues that the assessment made by the FIFA DRC in respect of the compensation awarded to him is in accordance with the Regulations and well-established jurisprudence of the FIFA DRC and that the resulting amount of compensation of EUR 330,000 is fair.

121. Under the circumstances, the Panel considers it just and fair that the Club shall compensate the Player with the salary he would have received during this month if a definite employment contract would have been concluded with the Club. Since the Club was supposed to pay the Player an annual salary of EUR 550,000 net, the Player would normally have received a monthly salary of EUR 45,833 net.

122. Due to the flagrant difference between the salary that the Player was supposed to earn with the Club (EUR 1,1 million net for the 2014/2015 and 2015/2016 sporting season) and the salary due on the basis of the employment contract concluded by the Player with Pogon (EUR 173,048 for the 2014/2015 and 2015/2016 sporting season – although the Club argued during the hearing that this amount is EUR 183,048), the Panel deems it appropriate to award the Player the equivalent of at least another month salary under the terms of the Draft Employment Contract (i.e. in any case further EUR 45,833). Taking into account all circumstances and the course of the events, the Panel is of the view that a total compensation of EUR 100.000 is just and fair in the case at hand.

123. Consequently, the Panel finds that the Club shall pay compensation for breach of the Draft Employment Contract to the Player in the amount of EUR 100.000, with interest at a rate of 5% p.a. accruing as from 18 July 2014 (i.e. the date after the Club first confirmed to the Player that the Draft Employment Contract could not be executed).

B. Conclusion

124. Based on the foregoing, and after taking into due consideration all the evidence produced and all arguments made, the Panel finds that:

i) The Draft Employment Contract was validly concluded and entered into force. ii) The Draft Employment Contract is to be considered as a “pre-contract” rather than a definite employment contract. iii) The Club breached its obligations vis-à-vis the Player under the Draft Employment Contract.

iv) The Club shall pay compensation for breach of the Draft Employment Contract to the Player in the amount of EUR 100,000, with interest at a rate of 5% p.a. accruing as from 18 July 2014.

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