Hakan Calhanoglu v. Fédération Internationale de Football Association (FIFA), Trabzonspor

II. FACTUAL BACKGROUND

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

5. On 30 April 2009, the Player, the Player’s father and the German club, Karlsruher Sport-Club (“Karlsruhe”) concluded a concluded a three-year employment contract entitled “Fördervertrag” (the “Development Contract”) and an annex, both valid as of 1 July 2009 until 30 June 2012. The Development Contract also included an option to extend the term for a fourth year. The extension option stated as follows:

“Club and player commit to continue this contract with the current contractual terms for one more year (maximum two), if the other party wishes to do so. Club and player must declare in writing if they wish to exercise the option before 30 April of the year of the expiry of the contract. If neither the club nor the player declares said will within the time limit the contract ends on the date mentioned-above in point 2” [translated from the original German].

6. In accordance with the Development Contract, Karlsruhe agreed to pay to the Player the following amounts:

- EUR 250 per month for the 2009/2010 season;

- EUR 300 per month for the 2010/2011 and 2011/2012 seasons;

- EUR 400 per month for the 2012/2013 season, if the option was exercised;

In addition to his basic monthly salary, the Player was entitled to EUR 150 per month for transportation expenses, plus variable bonus payments based on individual participation and team performances.

7. On 30 April 2011, the Player, the Player’s parents, and Trabzonspor signed a document (the “Preliminary Agreement”) which, inter alia, stated:

“Parties wishes to sign a Professional Football Contract with the Player in order to register him as Trabzonspor's player before the Turkish Football Federation; beginning from 2012-2013 1st Transfer until 31.05.2017” [translated from the original Turkish].

Trabzonspor FC v. Hakan Calhanoglu, award of 2 February 2017

8. In accordance with Article 2 of the Preliminary Agreement, Trabzonspor undertook to pay the Player the following amounts:

- EUR 320,000 for the 2012/2013 season. EUR 100,000 was to be payable “in one month after signing of this agreement”, EUR 100,000 was payable “in June” and EUR 120,000 was payable in 12 monthly instalments between June 2012 and June 2013;

- EUR 144,000 for the 2013/2014 season;

- EUR 168,000 for the 2014/2015 season;

- EUR 192,000 for the 2015/2016 season;

- EUR 216,000 for the 2016/2017 season.

9. Article 3.1 of the Preliminary Agreement stated that the validity of the said agreement “shall end when the Professional Football Player's Contract, which will define the parties’ all rights and obligations, is registered to TFF”.

10. Article 3.3 of the Preliminary Agreement stated:

“If the Player would not sign the agreement which is going to be registered at Turkish Football Federation at the beginning of the 2012-2013 season and/or signs another employment contract which will register him to another Club, then the Player accepts and undertakes to pay 1.000.000.-Euro (one million Euro) (The down payment which is going to be paid after signing of this Preliminary Agreement is also included and this penalty clause is valid only if this down payment is made) penalty clause and irrevocably declares that this amount is not excessive”.

11. Article 4 of the Preliminary Agreement stated:

“This contract is in form of a preliminary agreement, the remuneration which is undertaken to be paid in this contract shall be valid only if the Player passes through a check-up and the signature of Professional Football Player Contract in 4 copies to be submitted and registered to Turkish Football Federation”.

12. On 2 May 2011, Trabzonspor and Mr. Bektas Demirtas (the “Player’s Agent”), signed a document entitled “Standardvertrag für Spielervermittler” (English translation: Standard contract for players’ agents) to negotiate a transfer of the Player to Trabzonspor (the “Agent Agreement”), including the following clause:

“To be entitled to receive the commission it is sufficient that the talks and negotiations were conducted by the player’s agent. It is no requirement that the parties sign a professional footballers contract and that the player will be registered with Trabzonspor” [translated from the original German].

13. On an unknown date, the Player and Trabzonspor signed an employment contract (the “Trabzonspor Contract”), valid from 1 July 2012 until 31 May 2017, which included the salary arrangements of the Preliminary Agreement.

Trabzonspor FC v. Hakan Calhanoglu, award of 2 February 2017

14. The Trabzonspor Contract contained the following clause:

“7 D) In case the player signs a contract in order to be registered in any other club before the 1st transfer period of 2012-2013 season or in this period, he unconditionally and irrevocably accepts and agrees to pay a penal sum of 1.000.000.- € to Trabzonspor. Moreover he also accepts and agrees that this is not an excessive penalty”.

15. On 10 March 2012, the Player and Karlsruhe signed an employment contract (the “Karlsruhe Contract”) valid as of 1 July 2012 until 20 June 2016.

16. On 13 August 2012, Karlsruhe and the German club, Hamburger SV (“Hamburg”), concluded a transfer agreement for the definitive transfer of the Player. On the same date, these two clubs also concluded a loan agreement, whereby the Player was loaned back from Hamburg to Karlsruhe as of 13 August 2012 until 31 December 2012, with an option to extend the loan until 30 June 2013.

17. On 13 August 2012, the Player signed a new employment contract with Karlsruhe, covering the loan period from 13 August 2012 until 30 June 2013. The contract included a monthly salary of EUR 250 plus significant performance bonuses (EUR 2,500 for every victory and EUR 750 for every draw).

18. On that same day, the Player also signed an employment contract with Hamburg, which was suspended for the period of the loan of the player to Karlsruhe, from 13 August 2012 until 30 June 2016. The contract included a monthly salary of EUR 35,000.

19. On 4 July 2014, the Player was transferred from Hamburg to Bayer Leverkusen. The Player signed an employment contract with Bayer Leverkusen, from 1 July 2014 until 30 June 2019. That contract included the following monthly salaries:

- EUR 180,000 for the period of 1 July 2014 until 30 June 2016;

- EUR 200,000 for the period of 1 July 2016 until 30 June 2019.

Proceedings before FIFA

20. On 2 April 2013, Trabzonspor lodged a claim against the Player and Karlsruhe before the FIFA Dispute Resolution Chamber (the “FIFA DRC”). Trabzonspor alleged that the Player was in breach of contract without just cause and further alleged that Karlsruhe induced the Player to breach the contract. The following prayers for relief were requested:

“- to order the Player to refund EUR 100,000 corresponding to a “down payment” made by Trabzonspor to the Player on 2 June 2011, plus 5% interest p,a. as of 2 June 2011;

- to order the Player to pay EUR 1,000,000 corresponding to the “penalty clause” agreed upon in the Preliminary Agreement and in the Trabzonspor contract;

Trabzonspor FC v. Hakan Calhanoglu, award of 2 February 2017

- to declare that Karlsruhe is jointly and severally liable for the payment;

- to impose “a six-months sporting sanction” on the Player;

- to impose a ban on Karlsruhe to register players for two registration periods;

- to condemn both the Player and Karlsruhe to bear the costs of the proceedings”.

21. On 28 January 2016, the FIFA DRC rendered a decision (the “Appealed Decision”) as follows:

“1. The claim of the Claimant, Trabzonspor Futbol, is rejected.

2. The Respondent I, Hakan Çalhanoglu, is found to have terminated the employment contract with the Claimant without just cause within the protected period.

3. A restriction of four months on his eligibility to play in official matches is imposed on the Respondent I. This sanction applies with immediate effect as of the date of notification of the present decision. The sporting sanctions shall remain suspended in the period between the last official match of the season and the first official match of the next season, in both cases including national cups and international championships for clubs”.

22. On 14 March 2016, the parties were notified on the grounds of the Appealed Decision.

III. PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT

23. On 15 March 2016, in accordance with Articles R47 and R48 of the Code of Sports-related Arbitration (the “CAS Code”), the Player filed a Statement of Appeal against Trabzonspor and FIFA challenging the Appealed Decision at the Court of Arbitration for Sport (the “CAS”).The matter was given the reference CAS 2016/A/4495. The Player also filed a request for provisional measures.

24. As a provisional measure, the Player requested that the four-month ban on playing contained in the Appealed Decision be stayed, pending the outcome of the proceedings at the CAS.

25. On 16 March 2016, FIFA wrote to the CAS Court Office stating that they did not object to the Player’s request to stay the Appealed Decision.

26. On 16 March 2016, the CAS Court Office wrote to the Parties to confirm that the Appealed Decision would be stayed pending the outcome of the proceedings at the CAS.

27. On 28 March 2016, in accordance with Articles R47 and R48 of the CAS Code, Trabzonspor filed a Statement of Appeal against the Player at the CAS, also challenging the Appealed Decision. The matter was given the reference CAS 2016/A/4535.

Trabzonspor FC v. Hakan Calhanoglu, award of 2 February 2017

28. On 7 April 2016, the CAS Court Office wrote to the Parties informing them that two Statements of Appeal had been filed in relation to the Appealed Decision, and asked the parties if they agreed, in accordance with Article R52 of the CAS Code, to consolidate the procedures CAS

29. On 9 April 2016, Trabzonspor wrote to the CAS Court Office agreeing to consolidate the procedures.

30. On 11 April 2016, FIFA wrote to the CAS Court Office agreeing to consolidate the procedures.

31. On 11 April 2016, pursuant to Article R51 of the CAS Code, Trabzonspor submitted its Appeal Brief with the CAS, in the matter of CAS 2016/A/4535. The Appeal Brief contained the following prayers for relief:

“1. to declare the Appeal admissible and founded.

2. to set aside the FIFA DRC decision of III.1.

3. to declare that the Player shall pay 100.000.-Euro plus interest of 5% p.a. accrued from 03.06.2011 until its effective date of payment.

4. to declare that Trabzonspor AS is entitled to receive 1.000.000-Euro of compensation

5. to condemn the respondent party to pay the costs of the proceedings as well as the court office fee.

6. To condemn the respondent party to pay the legal costs which is fixed ex aequo et bono at CHF 10.000”.

32. On 12 April 2016, the CAS Court Office informed the Parties that the procedures had been consolidated.

33. On 13 April 2016, pursuant to Article R51 of the CAS Code, the Player submitted his Appeal Brief to the CAS Court Office, in the matter of CAS 2016/A/4495. The Appeal Brief contained the following prayers for relief:

“The appealed decision is therefore incorrect and must be set aside upon the Appeal”.

34. On 3 May 2016, pursuant to Article R55 of the CAS Code, the Player submitted his Answer to the CAS Court Office, in the matter of CAS 2016/A/4535, requesting the following prayers for relief:

“1. The Appeal of Trabzonspor FC is dismissed.

2. Trabzonspor FC is ordered to pay the costs of the CAS procedure to contribute to the Respondent’s legal costs with an amount of at least 10.000,00 CHF”.

Trabzonspor FC v. Hakan Calhanoglu, award of 2 February 2017

35. On 9 May 2016, pursuant to Article R55 of the CAS Code, Trabzonspor submitted its Answer to the CAS Court Office, in the matter of CAS 2016/A/4495, requesting the following prayers for relief:

“1. to declare the Appeal inadmissible and reject the claims of the Appellant.

2. to condemn the Appellant party to pay the costs of the proceedings as well as the court office fee.

3. to condemn the respondent party to pay the legal costs which is fixed ex aequo et bono at CHF 10.000”.

36. On 9 May 2016, pursuant to Article R55 of the CAS Code, FIFA submitted its Answer to the CAS Court Office, in the matter of CAS 2016/A/4495, requesting the following prayers for relief:

“1.1. In light of the above considerations, we insist that the decision passed by the DRC was fully justified. We therefore request that the present appeal be rejected and the decision taken by the DRC on 28 January 2016 be confirmed in its entirety.

1.2. Furthermore, all costs related to the present procedure as well as the legal expenses of the Second Respondent shall be borne by the Appellant”.

37. On 11 May 2016, pursuant to Article R54 of the CAS Code and on behalf of the deputy president of the CAS Appeals Arbitration Division, the CAS Court Office informed the Parties that the Panel appointed to these cases was constituted as follows:

President: Mr. Mark A. Hovell, Solicitor in Manchester, United Kingdom

Arbitrators: Dr. Michael Gerlinger, Attorney-at-law in Munich, Germany

Mr. Hendrik Willem Kesler, Attorney-at-law in Enschede, Netherlands

38. On 22 September 2016, Mr Lars Kupper (“Mr Kupper”), the head of the legal department at Bayer Leverkusen, wrote to the CAS Court Office requesting to attend the hearing.

39. On 22 September 2016, the Player wrote to the CAS Court Office noting that he did not object to the presence of Mr Kupper at the hearing.

40. On 27 September 2016, Trabzonspor wrote to the CAS Court Office noting that it did not object to the presence of Mr Kupper at the hearing, however, on the same day, FIFA wrote to the CAS Court Office objecting to the presence of Mr Kupper at the hearing.

41. On 29 September 2016, the CAS Court Office sent the Order of Procedure to the Parties.

42. On 30 September 2016, the CAS Court Office wrote to the Parties informing them that both the Player and Trabzonspor had duly signed the Order of Procedure.

Trabzonspor FC v. Hakan Calhanoglu, award of 2 February 2017

43. On 3 October 2016, the CAS Court Office wrote to the Parties informing them that FIFA had duly signed the Order of Procedure.

44. A hearing was held on 5 October 2016 at the CAS Court Office in Lausanne, Switzerland. The Parties did not raise any objection as to the composition of the Panel. The Panel were all present and were assisted by Mr. Daniele Boccucci, CAS Counsel. The following persons also attended the hearing:

i. For the Player: Dr. Joachim Rain, Counsel; ii. For Trabzonspor: Ms. Anil Gürsoy Artan, Head of Legal and Ms. Aysin Karahasanoǧlu, Director of Football Administrative Affairs; iii. For FIFA: Mr. Patrick Schmidiger and Mr. Mario Flores Chemor, both Legal Counsel at FIFA.

45. At the beginning of the hearing, the Player’s Counsel noted that the procedures had been consolidated, but that FIFA was not a party to CAS 2016/A/4535, so any submissions it made in that matter should be disregarded by the Panel.

46. The Player’s Agent was also present at the hearing, as a witness for the Player. Mr. Kraycher, Karlsruhe’s former Sports Director, attended by telephone as a witness for the Player. They both gave evidence before the Panel and were invited by the President of the Panel to tell the truth subject to the sanctions of perjury. The Parties and the Panel had the opportunity to examine and cross-examine the witnesses. The Parties then were given the opportunity to present their cases, to make their submissions and arguments and to answer questions posed by the Panel. After the Parties’ final, closing submissions, the hearing was closed and the Panel reserved its detailed decision to this written award.

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

IV. SUBMISSIONS OF THE PARTIES

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

Trabzonspor FC v. Hakan Calhanoglu, award of 2 February 2017

A. The Player’s Submissions

In summary, the Player submitted the following in support of his Appeal and in Answer to the Appeal of Trabzonspor.

i. The Player’s status as a professional or amateur

49. The Player submitted that he was a professional, rather than an amateur player, from the time he signed the Development Contract on 3 July 2009. The Player referred to his FIFA Player Passport, as well as a document from the Deutsche Fussball Liga (“DFL”) in support of his argument.

50. The registered status of a player is the most decisive criterion when determining whether that player is a professional or an amateur. The FIFA Player Passport as well as the document from the DFL confirmed that the Player was registered as a professional with Karlsruhe from 3 July 2009.

51. Article 2.2 of the FIFA Regulations on the Status and Transfer of Players (the “FIFA RSTP”) states as follows:

“A professional is a player who has a written contract with a club and is paid more for his footballing activity than the expenses he effectively incurs. All other players are considered to be amateurs”.

52. At the time Trabzonspor approached the Player, the Player was earning a basic gross monthly salary of EUR 300, receiving full accommodation and board, and an additional EUR 150 per month as a contribution to traveling costs. The Player submitted that this compensation package was more than the expenses he incurred.

53. The Player submitted that under Article 2 of the FIFA RSTP, it was not necessary that a player make his living from what he earns from the salary contained in his football contract or that the salary received corresponds to what an average employee may earn in the respective country. Rather, it was simply enough that a player earns more than he needs to cover his football-related expenses. As the Player’s expenses were already covered by Karlsruhe before factoring in his monthly salary, it is clear that the Player was a professional.

ii. The Preliminary Agreement and the Trabzonspor Contract are null and void

54. The Player submitted that the FIFA DRC failed to differentiate between the Preliminary Agreement and the Trabzonspor Contract and that each agreement must be examined individually in order to determine their validity, or as the Player submits, the lack thereof.

55. As it is uncontested that the Player signed the Preliminary Agreement when he was seventeen years old and a minor, the Preliminary Agreement violates Article 18.2 of the FIFA RSTP, which states:

Trabzonspor FC v. Hakan Calhanoglu, award of 2 February 2017

“Players under the age of 18 may not sign a professional contract for a term longer than three years. Any clause referring to a longer period shall not be recognised”.

56. The Preliminary Agreement was clearly not a final and binding employment contract, and the Player submitted several reasons in support of its argument:

“- It is named a “preliminary agreement”

- According to its Article 3.1, its validity shall expire once a (separate and final) professional football player’s contract is registered

- Its Article 3.3 explicitly includes the possibility, that the Appellant does not sign a further, separately required contract and therefore is not bound to the Respondent

- Its Article 3.4 includes the condition of a successful medical examination, which is not only a condition that prevents the contract from being final and binding, but by the way also another violation of the relevant regulations by the Respondent, this time of Article 18.4 FIFA RSTP that explicitly prohibits such conditions”.

57. The Player submitted that Trabzonspor issued the Preliminary Agreement and the Trabzonspor Contract on the same day, and that this indicates that Trabzonspor “does not regard the preliminary agreement as a final and binding contract (if so, the Respondent could have easily waited to have the Appellant sign the ‘contract’ at a later stage when the Appellant was no longer a minor)”.

58. The Player submitted that Trabzonspor Contract was de facto null and void on the premise that the Player signed the Trabzonspor Contract when he was still a minor. The Player points to German and Turkish law in support of his argument that “contracts concluded by minors (defined to be younger than 18) without explicit approval by their parents are null and void”. The Trabzonspor Contract was not signed by the Player’s parents.

iii. The Player did not breach his contract

59. The Player submitted that there are “thousands of cases … every year” in which players enter into employment contracts with new clubs while they are currently under contract with existing clubs and these contracts contain provisions that the validity of the employment contract with the new club is subject to the old and new clubs concluding a transfer agreement for the player. The Player admitted that no such provision was included in the Trabzonspor Contract, but that the inclusion of this provision was a standard practice. The Player noted that it was Trabzonspor that drafted the Trabzonspor Contract, and submitted that it was Trabzonspor’s responsibility to include this “necessary and usual” provision.

60. The Player cited Trabzonspor’s submission before the FIFA DRC dated 17 October 2014 and marked as “Exhibit 6”, which states:

Trabzonspor FC v. Hakan Calhanoglu, award of 2 February 2017

“The representative of the player stated that Trabzonspor A.S should have known the risk of not completing the transfer. The client was fully aware of that risk …”.

61. Trabzonspor, referring to itself as “the client”, admitted that it “was fully aware of the risk”, and the Player submitted that this is proof that Trabzonspor was aware of the possibility that the transfer may not be completed as a result of failing to reach a transfer agreement with Karlsruhe for the Player. It naturally followed, therefore, that Trabzonspor was aware that the Trabzonspor Contract could only be executed if Karlsruhe agreed to transfer the Player to Trabzonspor. Of course, Karlsruhe never agreed to transfer the Player to Trabzonspor and therefore the Player could not have breached his contract with Trabzonspor.

62. The Player submitted that he could not have breached his contract with Trabzonspor simply by complying with his existing contract with Karlsruhe, which pre-dated the Trabzonspor Contract. The contract between the Player and Karlsruhe ran from 30 April 2009 through at least 30 June 2012 (with an additional bilateral option for a further year). The Preliminary Agreement and Trabzonspor Contract were signed by the Player on 30 April 2011, more than a year before the Karlsruhe Contract was set to expire.

63. The Player further submitted that “an intention to breach a contract is obviously a precondition to impose the severe sanctions provided in Art. 17 RSTP”. As the Player lacked the intent to breach his contract with Trabzonspor, the FIFA DRC erred in imposing sporting sections on the Player under Article 17 of the FIFA RSTP.

64. In the event that the Panel finds that a breach occurred, the Player submitted that it would be the Karlsruhe Contract that was breached and it was only because Trabzonspor induced the Player to breach his contract with Karlsruhe.

iv. The Player does not owe Trabzonspor compensation

65. The Player submitted that the FIFA DRC correctly ruled that he was not liable to pay any compensation to Trabzonspor.

66. The Player submitted that even if the Panel finds that there had been a valid contract in place and that the Player breached this contract, both of which the Player denies, that the compensation clauses included in the Trabzonspor Contract “are obviously unilateral penalty or liquidate damages clauses in the sense of Article 17.2 RSTP”. Generally, unilateral penalty and liquidated damages clauses are void because they grant significant damages to a club in circumstances where, if the situation was reversed, the club would not suffer any consequences for the same behaviour.

67. In the unlikely event that the Panel finds that compensation is owed to Trabzonspor, the Player submitted that the requested amount of EUR 1,000,000 is disproportionately excessive to the circumstances of the matter at hand.

Trabzonspor FC v. Hakan Calhanoglu, award of 2 February 2017

68. Additionally, the Player submitted that Trabzonspor was not entitled to claim reimbursement in the amount of EUR 100,000 already paid to the Player.

v. Sporting sanctions

69. The Player submitted that the FIFA DRC erred in issuing him a four-month ban. The Player cited Article 17.1 of the FIFA RSTP, which states:

“In all cases, the party in breach shall pay compensation”.

70. The Player also cited Article 17.2 of the FIFA RSTP, which states:

“In addition to the obligation to pay compensation, sporting sanctions shall also be imposed on any player found to be in breach of contract during the protected period”.

71. The Player submitted that the wording of Article 17, and specifically the “in addition” qualifier in Article 17.3, clearly shows that if a player is not liable to pay compensation, he cannot have sporting sanctions imposed on him. Sporting sanctions can only be considered in cases where the FIFA DRC found it appropriate to impose the obligation to pay compensation. As the FIFA DRC did not find the Player liable to pay compensation, it should not have imposed sporting sanctions on the Player.

72. The Player submitted that the FIFA DRC also erred in holding that a four-month suspension was the mandatory minimum sporting sanction that can be imposed on a player for breach of contract during the protected period. The Player cited CAS 2007/A/1359 in support of this argument, in which that panel found:

“The Appellant considers that the DRC disregarded Article 17 par. 3 of the FIFA regulations by not imposing a sporting sanction on the player. The said provision states that ‘sporting sanctions shall also be imposed on any player found to be in breach of contract during the protected period’. In this respect, the DRC decision considered that the above mentioned provision gives the competent body the power to decide to impose a sporting sanction on a player found to be in breach of contract during the protected period, but not the obligation to do so” [emphasis added by the Player].

73. The Player also referred to FIFA’s own Commentary on the FIFA RSTP (“FIFA Commentary”). The FIFA Commentary on Article 17 states:

“A player who breaches his contract during the protected period risks a restriction …”.

74. The Player submitted that the language used, i.e. “risks”, implied that such a restriction may be imposed, but it was certainly not mandatory, as the FIFA DRC stated in the Appealed Decision.

Trabzonspor FC v. Hakan Calhanoglu, award of 2 February 2017

75. The FIFA DRC should have exercised its discretion as to whether or not to impose sporting sanctions and decided not to sanction the Player, taking into account the fact that the Player was a minor when he signed both the Preliminary Agreement and the Trabzonspor Contract.

76. The Player referred to the FIFA Commentary once again in support of his argument that in general, a restriction on a player’s eligibility to play for his new club shall start from the first match of the championship of the new club in the new season. The Player submits that “new club” refers to “the club that is the next club after the club whose contract with the player had been breached”. The Player submitted that Bayer Leverkusen is the Player’s “current club” rather than his “new club”.

77. The FIFA DRC failed to take into account that Bayer Leverkusen would be indirectly punished by the imposed sanction on the Player, despite not being liable in any regard. The intention of Article 17 was to deprive a player’s new club of the player’s services as the new club is regularly presumed to have induced the player to breach his contract. In the present case, Bayer Leverkusen was not involved at all and therefore, this sporting sanction should not have been imposed.

78. The alleged breach of contract dates back to the 2011/2012 season. The Player submitted that “it is a general principle in criminal law, but for example also in doping cases, that the period expired between the alleged violation of a rule and the sanction for such violation is a criterion to be considered as well. After four, respectively five years and two subsequent moves to other clubs (from Karlsruhe SC to Hamburger SV, from Hamburger SV to Bayer 04 Leverkusen), it is not adequate to impose any sportive sanction anymore …”.

79. For the reasons listed above, the Player submitted that the FIFA DRC erred when imposing sporting sanctions on the Player.

B. Trabzonspor’s Submissions

In summary, Trabzonspor submitted the following in support of its Appeal and in Answer to the Appeal of the Player.

i. The Player’s status as a professional or amateur

80. Trabzonspor submitted that the Player was an amateur when he was playing with Karlsruhe under the Development Contract.

81. Trabzonspor submitted that the primary purpose of development contracts “is to keep the child more focused on academic studies than footballing activity but to keep them playing football in case the child decides to choose football as a professional job”. Development contracts are not designed for professional players, but rather for amateur players who are undecided as to whether to pursue a professional career in football.

Trabzonspor FC v. Hakan Calhanoglu, award of 2 February 2017

82. Trabzonspor submitted that the Player’s remuneration under the Development Contract was too low to satisfy the criteria under Article 2 of the FIFA RSTP that a player is a professional when he has a written contract with a club and is paid more than the expenses he incurs. Trabzonspor pointed out that the monthly salaries and transportation contributions are in gross amounts. Trabzonspor submitted that the net amounts would be much less.

83. Trabzonspor submitted that the minimum wage in Germany was between EUR 1,000 and EUR 1,300 per month for the years 2010, 2011, and 2012. Trabzonspor further submitted that in light of the minimum wage being at least EUR 1,000 per month, it is impossible to call a player a professional if he is earning approximately EUR 400 in gross salary and compensation.

84. Trabzonspor submitted that in order to determine the Player’s status as an amateur or professional, the Player’s age, club, and a comparison between the terms of the Development Contract and the Player’s subsequent contracts with Trabzonspor and Hamburg are enough to decide on his status. There was no need for the FIFA DRC to examine the wording of the Development Contract.

85. Once Trabzonspor identified the Player as a talented youngster they wanted to sign, Trabzonspor submitted that they searched for the Player’s status, contacted the Player’s Agent, and asked the Player’s Agent about the Player’s legal status and whether the Player would be available to transfer to Trabzonspor in accordance with the FIFA RSTP. Trabzonspor further submitted that the Player’s Agent informed Trabzonspor that the Player was available for transfer and playing as an amateur for Karlsruhe.

86. Trabzonspor submitted that in 2011, they asked an official at the TFF for help in confirming the Player’s status. That TFF official contacted a colleague at the DFL and verbally confirmed that the Player was an amateur. This was confirmed again in 2012 via e-mail.

87. Trabzonspor submitted that when the Player’s Agent offered his services to Trabzonspor in respect of the Player’s transfer, Trabzonspor refused because the Player’s Agent was representing the Player and to be paid by Trabzonspor would violate the “Player Agent’s Regulations of FIFA”. Only when the Player’s Agent informed Trabzonspor that he terminated his representation contract with the Player did Trabzonspor enter into a representation contract with the Player’s Agent.

88. Trabzonspor agreed to pay the Player’s Agent EUR 175,000 for his services. Trabzonspor paid an initial EUR 100,000, but have refused to pay the remaining EUR 75,000 as the Player did not complete the transfer. There is a pending case before FIFA on this matter between Trabzonspor and the Player’s Agent.

89. Trabzonspor exercised due diligence to inform itself of the Player’s playing and contractual status. Trabzonspor approached the Player’s Agent and was informed by him that the Player and his family were eager to sign with Trabzonspor, that he was an amateur player, and that he

Trabzonspor FC v. Hakan Calhanoglu, award of 2 February 2017

was not playing for Karlsruhe’s first team. Additionally, Trabzonspor sought confirmation from the TFF and asked for the Player’s Passport and confirmation from the DFL.

90. For the reasons stated above, Trabzonspor submitted that the FIFA DRC erred in finding that Trabzonspor failed to exercise due diligence regarding the Player’s status and contractual situation.

ii. Payment of EUR 100,000 under the Preliminary Agreement

91. Under Article 3.4 of the Preliminary Agreement, Trabzonspor was to pay the Player EUR 100,000 as an advance payment of the Player’s receivables for the 2012/13 season. Article 3.4 stated as follows:

“3.4 [Free Translation] The Player irrevocably agrees that the 100.000.-Euro down payment which is made on the signature date of this agreement has been paid as a part of his 2012-2013 receivables”.

92. The payment was made in full on 2 June 2011. The Player has never denied that he received this payment nor has the Player made any comment on this payment during the proceedings before the FIFA DRC. However, the FIFA DRC held that since there was no clause in the Preliminary Agreement regarding reimbursement, Trabzonspor was not entitled to recover the payment. Trabzonspor submits that this was an untenable interpretation.

93. The Player knew that the payment was made specifically as an advance on his future services, he refused to reimburse Trabzonspor after refusing to complete the transfer from Karlsruhe to Trabzonspor. This was a case of unjust enrichment, which is foreseen under Article 62 of the Swiss Code of Obligations (“CO”).

94. As the Player never rendered his services to Trabzonspor, he has no just claim to the payment. Trabzonspor is entitled to reimbursement under Article 65 CO.

95. For the reasons stated above, Trabzonspor requested that the Panel orders the Player to reimburse Trabzonspor in the amount of EUR 100,000 plus interest of 5% p.a. from 2 June 2011 until the date of effective payment.

iii. Additional compensation

96. The Development Contract did not grant the Player professional status, and as a result, Trabzonspor did not violate any part of the FIFA RSTP. As the Player clearly breached the Trabzonspor Contract, Trabzonspor has a valid claim to receive compensation.

97. Trabzonspor submitted that even if the Player was a professional, Trabzonspor would still be entitled to receive compensation. Article 3.3 of the Trabzonspor Contract clearly states that the Player must pay EUR 1,000,000:

Trabzonspor FC v. Hakan Calhanoglu, award of 2 February 2017

“3.3 If the Player would not sign the agreement which is going to be registered at Turkish Football Federation at the beginning of the 2012-13 season 1st Transfer Period and/or signs another employment contract which will register him to another Club, then the Player accepts and undertakes to pay 1.000.000.-Euro (onemillion Euro) (The down payment which is going to be paid after signing of this Preliminary Agreement is also included and this penalty clause is valid only if this down payment is made) penalty clause and irrevocably declares that this amount is not excessive”.

98. Trabzonspor submitted that since the Player did not honour the Preliminary Agreement and instead signed another employment contract with Hamburg for the 2012-2013 season, the Player must pay Trabzonspor EUR 1,000,000 as compensation. Trabzonspor also referred to Article 17 of the FIFA RSTP in support of its claim.

99. For the reasons stated above, Trabzonspor submitted that the FIFA DRC erred in failing to award Trabzonspor compensation in the amount of EUR 1,000,000.

C. FIFA’s Submissions

100. In summary, FIFA submitted the following in support of its defence of the Player’s Appeal.

i. The validity of the Preliminary Agreement and the Trabzonspor Contract

101. FIFA firstly submitted that the Player did not raise any relevant or cogent new arguments within the present appeal procedure, and as a result, the decision of the FIFA DRC should be upheld.

102. FIFA noted that the Trabzonspor Contract does not bear any date and the assumption that it was signed simultaneously with the Preliminary Agreement was merely based on declarations from the Player, the Player’s Agent and a lawyer who was apparently involved. The Player has not provided any documentary confirmation or evidence to support this assumption. FIFA submitted that the probative value of personal testimonials is low, and are not considered to be sufficient evidence that the Player signed the Trabzonspor Contract on 30 April 2011.

103. FIFA submitted that the Trabzonspor Contract was signed between 30 April 2011 and 7 February 2012 (while the Player was 17 years old) or between 8 February 2012 and 9 March 2012 (after the Player turned 18 years old). One timeframe was no more plausible than the other.

104. However, even if the Player did sign the Trabzonspor Contract while he was still 17 years old, FIFA submitted that “this has absolutely no impact on the right conclusion reached by the DRC that the employment contract is valid and binding for both signing parties”.

105. FIFA noted the Player’s reference to German law to support its argument that contracts concluded by minors without the explicit approval of their parents are null and void. However, FIFA refers to Article 66.2 of the FIFA Statutes, which states, in relevant part:

Trabzonspor FC v. Hakan Calhanoglu, award of 2 February 2017

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

106. As the Trabzonspor Contract does not contain any choice of law mutually agreed upon by the Parties, the applicable law in the present appeal was therefore Swiss law. FIFA referred to CAS jurisprudence to support its position, specifically CAS 2013/A/3309, CAS 2013/A/3444, and CAS 2014/A/3848. Additionally, FIFA submitted that the Player’s German nationality had absolutely no influence on the determination of the applicable law.

107. FIFA referred to Articles 19.1 and 19a.1 of the Swiss Civil Code, which state:

“art. 19 par. 1: Persons who are capable of judgment but lack the capacity to act [i.e. are not yet 18] may only enter into obligations or give up rights with the consent of their legal representative”

“art. 19a par 1: Unless the law provides otherwise, the legal representative may consent expressly or tacitly in advance or approve the transaction retrospectively” [emphasis and bracketed commentary added by FIFA].

108. FIFA also referred to Articles 11.1 and 11.2 CO, which state:

“art. 11

(1) The validity of a contract is not subject to compliance with any particular form unless a particular form is prescribed by law.

(2) In the absence of any provision to the contrary on the significance and effect of formal requirements prescribed by the law, the contract is valid only if such requirements are satisfied”.

109. According to Swiss law, in principle, a minor does need the consent of his or her legal representative in order to enter into a contract. However, this consent does not need to be explicit nor does it need to be given prior to the conclusion of the contract. The validity of a contract does not depend on the execution of formal pre-requisites.

110. As the Player claimed that the Preliminary Agreement and the Trabzonspor Contract were signed on the same date, it was clear that even though the Trabzonspor Contract does not bear the signature of the Player’s parents, the Player’s parents would have undoubtedly consented to the Player entering into a professional relationship with Trabzonspor. This was proven by the Player’s parents signing the Preliminary Agreement, in which they gave their express consent to this professional relationship, especially considering that the Preliminary Agreement and Trabzonspor Contract were exactly the same with respect to the duration and financial conditions of the relationship.

111. FIFA also referred to the Player’s Appeal Brief, in which the Player mentioned that “… upon instruction of his father signed both the preliminary agreement and the contract […] at the same time” [emphasis added by FIFA].

Trabzonspor FC v. Hakan Calhanoglu, award of 2 February 2017

112. FIFA averred that German law does not apply to the present matter, but even if it did, the statutes the Player cited in support of his argument that the contract was null and void were misquoted and do not actually support the Player’s argument. FIFA cited additional provisions of German law in support of its position that the Trabzonspor Contract would be valid and binding even if German law applied.

113. FIFA rejected the Player’s argument that the Trabzonspor Contract violated Article 18.2 of the FIFA RSTP, and was therefore invalid. FIFA submitted that Article 18.2 is clear on the point that when a minor player signs an employment contract with a club for a term longer that three years, the clause stipulating the excessive duration of the contract shall individually be disregarded, and all other contractual terms will remain valid for a period of time limited to three years. FIFA cited CAS 2008/A/1739 in support of its position.

114. FIFA also rejected the Player’s argument that the Trabzonspor Contract should be considered invalid as a result of Trabzonspor breaching Article 18.3. FIFA submitted that Trabzonspor’s infringement of Article 18.3 has no impact on the validity of the Trabzonspor Contract nor did it annul the Player’s own infringement of Article 18.5.

115. FIFA rejected the Player’s argument that the Preliminary Agreement was invalid. FIFA submitted that the Preliminary Agreement, “is a complete agreement, containing all the essential terms of the parties’ future employment relationship, which can be separately considered as a fully valid and binding agreement between the parties, without the need of any further confirmation or ratification”.

116. In particular, the fact that the Preliminary Agreement contained an allegedly excessive penalty clause by no means invalidated the remaining terms of the agreement, which were still valid and binding, as voluntarily and rightfully agreed between the parties.

117. FIFA further rejected the Player’s argument regarding the invalidity of the Preliminary Agreement based on a clause conditioning the agreement upon the completion of a successful medical exam in violation of Article 18.4 of the FIFA RSTP. It was only the specific clause that would be deemed invalid and the only way this would be invoked is where the club claimed the invalidity of a contract because a player did not pass a medical exam. FIFA submitted that the Player asserting this argument is completely illogical and undermines the purpose of the FIFA RSTP.

118. For the reasons listed above, FIFA submitted that both the Preliminary Agreement and the Trabzonspor Contract were valid and enforceable.

ii. The Player’s breach of contract

119. FIFA rejected the Player’s argument that it was impossible to breach any contract concluded with Trabzonspor, since, by remaining with Karlsruhe, the Player was merely complying with his previous employment contract with Karlsruhe. FIFA further rejected the Player’s argument that Articles 17 and 18 of the FIFA RSTP are not applicable to minors.

Trabzonspor FC v. Hakan Calhanoglu, award of 2 February 2017

120. FIFA submitted that according to well-established jurisprudence by the FIFA DRC, which has been confirmed by the CAS, “unilateral extension options of contracts in favour of one party only are invalid as they violate the principle of parity of the parties and lead to an unjustified disadvantage of one of them”. However, FIFA submitted that the option contained in the Development Contract was not a unilateral option, but rather an option dependent on the will of both parties, and therefore this principle does not apply.

121. The wording of the extension option contained in the Development Contract clearly showed that the option could only be executed if both parties declared in writing their wish to exercise it. Therefore, the Player did have the option of refusing to extend his contract with Karlsruhe and was by no means forced to extend his employment relationship with Karlsruhe. Additionally, the Player subsequently voluntarily entered into another employment contract with Karlsruhe – the Karlsruhe Contract – after he, according to the Player himself, had already signed the Preliminary Agreement and the Trabzonspor Contract.

122. For the reasons listed above, FIFA submitted that the Player’s argument that he could not have breached any contract with Trabzonspor since he was simply complying with his previous employment contract with Karlsruhe is illogical in addition to lacking any legal ground.

123. FIFA submitted that the restrictive interpretation by the Player that Articles 17 and 18 of the FIFA RSTP do not apply to minors artificially limits the scope of an essential principle of the FIFA RSTP, namely the protection and maintenance of contractual stability between professionals and clubs. FIFA further submitted that the Player’s assertion that Articles 17 and 18 do not apply to minors finds no support in either the FIFA RSTP or the relevant jurisprudence.

iii. Sporting sanctions

124. FIFA submitted that the sporting sanctions imposed upon the Player by the FIFA DRC were in line with Article 17.3 of the FIFA RSTP and were fully justified.

125. The wording of Article 17.3 clearly indicates that whenever a player is held liable for a breach of contract without just cause and occurring during the protected period, sporting sanctions shall, in principle, be imposed on such player by the FIFA DRC.

126. However, FIFA acknowledged that in practice, the FIFA DRC has adopted a more flexible application of Article 17.3 and takes the specific circumstances involved in each individual case brought to its consideration and leaves open the possibility of not applying sporting sanctions on a player found to be in breach of contract without just cause, even if such breach occurred during the protected period.

127. FIFA submitted that the well-established jurisprudence of the FIFA DRC assigned the competent body the “power”, but not the “obligation” to impose sporting sanctions on a player – or a club, for that matter – in these circumstances. The imposition of sporting sanctions is left

Trabzonspor FC v. Hakan Calhanoglu, award of 2 February 2017

to the free discretion of the FIFA DRC. FIFA cited CAS 2007/A/1359 as confirmation of this position, as the panel found that this interpretation of the FIFA RSTP “represents the real meaning of the provision as it is interpreted, executed and followed within FIFA”.

128. FIFA rejected the Player’s argument that the FIFA DRC would not be allowed to apply sporting sanctions on a player simply because compensation was not additionally awarded to the club. The intention of Article 17.3 was to establish two possible consequences of a breach of contract on the part of the player, namely the payment of compensation to the damaged club and the imposition of sporting sanctions.

129. Considering that the FIFA DRC has discretion to decide on a case-by-case basis whether these consequences shall apply to a certain dispute, the FIFA DRC, taking into account the specific circumstances of each case, was free to decide whether these consequences apply together, separately, or if they even apply at all.

130. FIFA submitted that the FIFA DRC took into account the particular circumstances of the present matter and specifically as a result of Trabzonspor’s behaviour, deemed that no compensation would be payable. However, this by no means restricted the possibility of the FIFA DRC to decide for the application of sporting sanctions on the Player based on his own behaviour. FIFA noted that the Player’s decision to enter into more than one employment contract for the same period of time was a violation of Article 18.5 of the FIFA RSTP. Such a violation was considered by the FIFA DRC to be a particularly severe breach of contract on the part of the Player.

131. The FIFA DRC fully exercised its discretion in not granting Trabzonspor any compensation while also imposing sporting sanctions on the Player in the form of a four-month restriction on playing in official matches. Such discretion was within the FIFA DRC’s regulatory and jurisprudential limits, as it established very specific consequences to this particular breach of contract committed by the Player without just cause. These consequences were fair and adequate with regard to the present matter and proportionate to both the severe breach committed by the Player and the reproachable behaviour of Trabzonspor.

132. Regarding the Player’s argument that the FIFA DRC erred in “assuming that the four months suspension is a minimum sanction to be applied mandatorily”, FIFA submitted that Article 17.3 of the FIFA RSTP does not grant the FIFA DRC the discretion to reduce or prolong the period for which a player should be suspended from playing official matches beyond extending the fourmonth restriction on playing to a six-month suspension in the event of aggravating circumstances.

133. FIFA noted that Bayer Leverkusen was negatively affected by the Player’s suspension, even though it was not involved in the contractual dispute between the Player and Trabzonspor. However, FIFA rejected the Player’s argument that the imposition of a sporting sanction upon the Player is inappropriate as a result of the sanction negatively affecting Bayer Leverkusen.

Trabzonspor FC v. Hakan Calhanoglu, award of 2 February 2017

134. FIFA submitted that the Player is not in charge of defending Bayer Leverkusen and is not permitted to invoke the alleged interests of a third party to defend his own position and interests. FIFA cited TAS 2015/A/4178 in support of its position.

135. For the reasons listed above, FIFA submitted that the FIFA DRC’s decision to impose a fourmonth suspension on the Player was the correct application of the FIFA RSTP and a proportionate and justified conclusion, considering the facts of the case and the Player’s own behaviour.