Nilmar Honorato da Silva v. El Jaish FC, Fédération Internationale de Football Association (FIFA)

II. FACTUAL BACKGROUND

4. Below is a summary of the main relevant facts, as established on the basis of the parties’ written and oral submissions and the evidence examined in the course of the present appeal arbitration proceedings and at the hearing. This background is set out for the sole purpose of providing a synopsis of the matter in dispute. Additional facts may be referred to, where relevant, in connection with the legal discussion.

A. Background facts

5. On 23 January 2014, the Player and the Club concluded an employment contract (the “Employment Contract”), valid as from the date of signature until 31 July 2016.

6. The Employment Contract determines that the Player is entitled to EUR 1,672,730 for the 2013/2014 sporting season, EUR 3,300,000 for the 2014/2015 sporting season, and EUR 3,400,000 for the 2015/2016 sporting season. Additionally, the Employment Contract contains the following relevant clauses:

“10.7 If the [Club] terminated the contract unilaterally, the [Player] is entitled to receive salary of Two months.

10.8 Disciplinary Act:

In case the player terminated the contract from his side only, he has to pay a disciplinary act as per the following:

First year termination: The [Player] shall pay for the [Club] an amount of Euro 1,672,730 […].

Second year termination: The [Player] shall pay for the [Club] an amount of Euro 3,300,000 […].

Third year termination: The [Player] shall pay for the [Club] an amount of Euro 3,400,000 […].

[…]

Bonuses:

EUR 100,000 (One thousand euros) [sic] To win Crown Prince Cup”.

7. On 29 July 2014, the Club sent an email to the Player enclosing a document titled “Termination Letter” and dated 23 July 2014 (the “Termination Letter”). The Club argues in the email that the Player refused to receive the Termination Letter by hand and that it therefore proceeded to notify him by email. The Termination Letter reads as follows:

“Subject: Termination Letter

Dear [Player],

[The Club] would like to thank you for your sincere efforts during your employment as professional football player at the club.

1. We regret to inform you that your employment contract will be terminated, effectively on 27 th of July 2014, according to paragraph No. 7 of article No. ten of the concluded contract between you and [the Club]. The mentioned paragraph states that if the [Club] terminated the contract unilaterally, the [Player] is entitled to receive a salary of Two months.

We also would like to thank you for your cooperation and dedication during your employment period at the club”.

8. On 1 August 2014, the Player returned to Brazil.

9. On 20 August 2014, the Player rejected the contents of the Termination Letter and claimed EUR 100,000 net from the Club for the title in the Prince Cup and compensation for breach of contract in the amount of EUR 6,700,000 net. The Player informed the Club that if it failed to pay this amount by 28 August 2014 he would commence legal proceedings before the Dispute Resolution Chamber of FIFA (the “FIFA DRC”) in order to claim the same amount plus interest and for sporting sanctions to be imposed.

10. On 16 September 2014, the Player and SC Internacional (“Internacional”), a football club with its registered office in Porto Alegre, Brazil, entered into an employment contract, valid as from the date of signing until 31 December 2017, pursuant to which the Player was to earn a monthly salary of Brazilian Real (“BRL”) 220,000 (equivalent at the time to approximately EUR 72,500).

11. Also on 16 September 2014, Internacional uploaded the necessary information and documentation to the FIFA Transfer Matching System (“FIFA TMS”). FIFA TMS showed the following “exception validation” for the issuance of the International Transfer Certificate (“ITC”):

“September 17, 2014 9:26pm

There are validation issues that need to be resolved before the transfer can proceed. # Player out of contract transferring prior to next registration period

Responsible: FIFA Player’s Status”.

This information was accompanied by the following observation:

“*Issues under the responsibility of FIFA’s Player’s Status will only be dealt with upon receipt of a formal (written) request for intervention in accordance with art. 9 par. 1 of the Rules Governing the Procedures of the Player’s Status Committee and the Dispute Resolution Chamber”.

12. On 18 September 2014, Internacional informed the CBF of the above-mentioned notifications in FIFA TMS and requested the CBF as follows:

“[W]e hereby request that you ask the Player’s Status Committee to remove the aforementioned validation exemption, immediately authorizing the continuation of the procedure initiated via TMS for the player’s transfer.

We must emphasize the urgency of the matter, in view of the proximity to the deadline to register new athletes seeking their participation in the Brazilian Championship underway (which ends on October 3, 2014), which is why processing this application requires agility.

Given the short period of time described above, [Internacional] and the player understand that the decision of the Player’s Status Committee on the matter (i.e., the simple unlocking of the transfer process or, in more

technical words, the removal of the validation exemption pointed out by the TMS), at this stage, should be processed inaudita altera pars since it only aims at the continuation of the proceedings in the TMS. We emphasize that the adoption of a decision at this stage of the transfer procedure without hearing the other party is justified because of its urgency and the damage that will entail if the player cannot be registered in time to participate in the Brazilian Championship; on the other hand, it is also justified by the fact that it rigorously does not cause any harm to the player’s former club, since this club expressly and publicly recognized its sole responsibility in relation to the early termination of the player’s previous contract”.

13. On 19 September 2014, the CBF forwarded the documents submitted by the Club to FIFA Players’ Status, requesting it to intervene in the validation exemption.

14. On 22 September 2014, FIFA Players’ Status informed the CBF as follows:

“From the content of your correspondence as well as the information contained in the [FIFA TMS], we took due note that your association was not able to request the [ITC] from the [QFA] for the player concerned, at the latest on the last day of the registration period fixed by your association, i.e. 13 August 2014. In particular, we understand that your federation therefore requests a special exemption from the “validation exemption” in the TMS.

[…]

[S]ince the document uploaded in the relevant transfer instruction as “employment contract” appears to have been submitted in the original language only, we kindly invite you to provide our services with a translation of the aforementioned documents into one of the four FIFA languages (English, French, Spanish or German)”.

15. On 24 September 2014, the CBF provided FIFA Players’ Status with the relevant documents.

16. On 26 September 2014, referring to a letter dated 24 September 2014, FIFA informed the CBF as follows:

“We have observed that your association was not able to request the relevant electronic [ITC] for the [Player] from the [QFA] in the TMS at the latest on the last day of the relevant registration period fixed by your association, i.e. 1 September 2014. In particular, we understand that therefore your association requests a special exemption from the current “validation exception” in the TMS.

[…]

In this regard we kindly refer you to art. 6 par. 1 of the Regulations on the Status and Transfer of Players [the “FIFA RSTP”], according to which players may only be registered during one of the two annual registration periods fixed by the relevant association.

However, in accordance with art. 6 par. 1, in fine, of the [FIFA RSTP], FIFA may take provisional measures in cases where the contract with the previous club has been terminated with just cause, in order to avoid abuse. The aim of this provision is to protect players from remaining unemployed until the opening of

the next registration period following the conclusion of a new employment contract, in case they had become unemployed after having felt compelled to unilaterally terminate an existing contract for reasons to be solely attributable to the club. Consequently, such an interpretation should also be extended to circumstances whereby the player’s previous contract was terminated unilaterally by the club, without just cause.

In this regard, we have observed that, according to the documentation provided, it would appear that the player’s previous contract was unilaterally terminated by [the Club] on 27 July 2014 […]. […] [W]hile emphasising that if need be, it will remain the sole competence of the deciding authority having jurisdiction to hear a potential contractual dispute possibly arising between the parties concerned to establish any responsibility for the early termination of the contractual relationship in question, prima facie, it would appear clear from the documentation provided that the player’s previous contract was terminated by the club through no fault of the player.

As a result, in particular, in consideration of the apparent clarity of the relevant circumstances, on a very exceptional basis only, we deem that provisional measures in the sense of art. 6 par. 1 of the [FIFA RSTP] may be taken, despite the absence of a decision of the competent authority confirming that the unilateral termination by the club occurred without just cause.

Consequently, in view of all the above, we would like to inform you that based on the documentation provided and the information at our disposal, we are able to grant your request for the special exemption from the “validation exception” in the TMS”.

17. On 30 September 2014, the Player and Mr F., TMS Manager and in-house lawyer of Internacional, travelled to Qatar in order to obtain the Player’s ITC, which the Club allegedly only wanted to release under the condition that a settlement agreement would be concluded containing the personal signature of the Player. The matter was urgent for the Player since Chapter III of the 2014/A Series Brazilian Championship REC – Specific Regulations of the Competition (the “CBF Competition Regulations) determines that contracts can be filed and registered with the CBF only until 3 October 2014.

18. On 1 October 2014, the Player and the Club signed an agreement titled “Amicable Professional Football Player Contract Termination And Financial Settlement” (the “Settlement”), determining, inter alia, as follows:

“Since the two Parties agreed to terminate the contract between them amicably according to the following terms:

1. The [Player] acknowledges and declares that he had received all his financial entitlements from the [Club] and he shall not demand any further financial entitlements after signing this agreement.

2. The [Club] acknowledges and declares that they do not have any further demands from the [Player] after signing this agreement.

3. This agreement is a final financial settlement between the two parties and neither party shall violate the provisions and terms of this agreement.

4. The [Club] undertakes to send the ITC of the Player immediately after signing this agreement to the club desirous of Transferring the Player.

5. Both parties undertakes to respectively inform the related authorities in the Brazilian and Qatari football associations with the contents of this agreement and send them an original copy of the same.

6. Any dispute that may arise due to this agreement shall be reported to the [FIFA DRC] to decide on it”.

19. Also on 1 October 2014, the Player, Mr F, and Mr Y, a friend of the Player in Doha, Qatar, jointly declared, inter alia, the following before the Brazilian Embassy in Qatar:

“Even though the [Employment Contract] has been terminated unilaterally by [the Club] without cause as provided in such “Termination Letter”, the [Player] and [Internacional] were surprised at the decision of [the Club] not to authorize the issuance and submission of the international transfer certificate by [the QFA] unless the [Player] signed a “Settlement Agreement” in person.

On September 30, 2014, the [Player] and DECLARANT [Mr F] travelled from the City of Porto Alegre, State of Rio Grande do Sul, Brazil, to Doha, Qatar, for the purposes of performing the procedures required by [the Club]. On the date hereof (October 1, 2014), the [Player] and the DECLARANTS personally appeared at the headquarters of [the Club] to take the required measures, as stated above. The [Player], however, was surprised at the terms and conditions of said “Settlement Agreement” stipulating that the authorization for the issuance and submission of the [ITC] was subject to the waiver from receiving any compensation, remuneration and awards under the [Employment Contract] as terminated unilaterally by [the Club] without cause, in accordance with the provisions of the “Termination Letter”.

With no option against the threat of not being allowed to exercise his profession as a whole before [Internacional] for the next months, the [Player] was coerced by the representative of [the Club], [Mr M], into signing the “Settlement Agreement”, otherwise he would not take the required measures to complete the international transfer of the [Player], in accordance with FIFA Regulations which provide for the matter at hand.

Finally, the DECLARANTS hereby expressly declare before this Embassy that the foregoing reflects the full, correct and unchanging truth and chronology of the facts, and the declarants are at the disposal of any legal authority, ordinary court or arbitration tribunal to confirm the contents and provisions herein.

The Brazilian Embassy in Doha, Qatar, without judging the contents of this declaration, hereby certifies that the undersigned DECLARANTS, as identified above, personally appeared on the date hereof at this Embassy”.

20. Also on 1 October 2014, the QFA delivered the ITC to the CBF.

B. Proceedings before the Dispute Resolution Chamber of FIFA

21. On 18 September 2015, the Player lodged a claim in front of FIFA against the Club for breach of contract, requesting the following:

- EUR 100,000, plus 5% interest as of 26 April 2014, as outstanding bonuses for winning the Crown Prince Cup 2014;

- EUR 6,700,000, plus 5% interest as of 29 July 2014, as compensation corresponding to the residual value of the contract;

- Sporting sanctions to be imposed on the Club.

22. The Club disputed the Player’s allegations and requested the claim to be dismissed.

23. On 26 May 2016, the Dispute Resolution Chamber of FIFA (the “FIFA DRC”) rendered its decision (the “Appealed Decision”), with the following operative part:

“The claim of the [Player] is rejected”.

24. On 20 September 2016, the grounds of the Appealed Decision were communicated to the parties, determining, inter alia, the following:

- “[T]he members of the Chamber acknowledged that the [Player] and the [Club] signed an employment contract valid as from 23 January 2014 until 31 July 2016 and that, on 29 July 2014, the [Club] terminated the contractual relationship with the [Player] in accordance with art. 10.7 of the contract. The DRC further observed that on 1 October 2014, the [Player] and the [Club] signed a settlement agreement.

- The Chamber then reviewed the claim of the [Player], who maintains that “he entered into the [settlement agreement] under duress” and therefore requests it to be deemed null and void and the [Club] to be held liable for the termination of the contract without just cause on 29 July 2014. In particular, the Chamber took note of the [Player’s] allegation that the [Club] took advantage of the fact that the registration period for the 2014 Brazilian Championship was about to expire on 3 October 2014, and made the release of the ITC through TMS [i.e. the “Transfer Matching System”] by the QFA subject to the signature of the settlement agreement.

- At this stage, the members of the DRC turned their attention to elements put forward by the [Player] in support of his assertion that he was coerced to sign the settlement agreement. In doing so, the DRC first observed that the [Player] submitted a joint statement made in front of the Brazilian Embassy by him, a friend of him and his new club’s legal counsel. In this regard, the Chamber deemed it fit to outline that the interests that the declarants have in the dispute put in doubt the impartiality of their statements and therefore, after making reference to art. 12 par. 3 and par. 6 of the Procedural Rules, according to which any party claiming a right on the basis of an alleged fact shall carry the burden of proof and the evidence shall be considered with free discretion respectively, concluded that said statement was not likely to demonstrate that the [Player] had signed the settlement agreement under duress. In this respect, the

Chamber was eager to point out that the Brazilian Embassy certified the relevant statement “without judging the merits of the contents of this declaration”.

- In continuation, the Chamber focussed on the [Player’s] argument as to the restrictive rules regarding the [Player’s] registration in Brazil. In this respect, after recalling the regulatory framework established by FIFA regarding the provisional registration of players, the DRC deemed it important to emphasise that the [Player] did not even attempt to request the urgent intervention of FIFA prior to taking the initiative of signing the settlement agreement, thereby showing a complete lack of diligence and taking a risk, the consequences of which he has to bear.

- Moreover, the Chamber was eager to emphasise that a party signing a document of legal importance without knowledge of its precise contents, as a general rule, does so on its own responsibility.

- Furthermore, and for the sake of completeness, the members of the Chamber highlighted that the [Player] had waited for almost one year before lodging a claim in front of FIFA, apparently manifesting by doing so his satisfaction with the situation.

- In view of the above, and referring to art. 12 par. 3 of the Procedural Rules, the Chamber deemed that the [Player] had not presented any documentation which would demonstrate the nullity of the settlement agreement and, consequently, concluded that said document constituted a valid and binding document by means of which the [Player] waived any claim he might have or have had against the [Club].

- On account of the above, the Chamber decided to reject the claim of the [Player] in its entirety”.

III. PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT

25. On 11 October 2016, the Player lodged a Statement of Appeal with the Court of Arbitration for Sport (“CAS”) in accordance with Article R48 of the Code of Sports-related Arbitration (2016 edition) (the “CAS Code”), challenging the Appealed Decision. The Player nominated Mr Michele Bernasconi, Attorney-at-Law in Zurich, Switzerland, as arbitrator.

26. On 26 October 2016, the Player filed his Appeal Brief in accordance with Article R51 of the CAS Code. This document contained a statement of the facts and legal arguments. The Player submitted the following requests for relief:

“FIRST – To dismiss in full the Appealed Decision;

SECOND – To accept in full the present appeal;

THIRD – To confirm that the Settlement Agreement is null since the Player signed it under duress (cf. Art. 29 et seq. of the Swiss CO);

FOURTH – To confirm that the settlement agreement signed between the Player and the Club on 1 October 2014 is null (in addition) because the issuance of an ITC shall occur free of charge and without any condition whatsoever, in particular, in case of an null Settlement Agreement (cf. Art. 9, par. 1 of the FIFA RSTP);

FIFTH – To confirm that the Club unilaterally terminated the Employment Contract without just cause during the so-called “protected period” (cf. definition 7 of the FIFA RSTP);

SIXTH – To order the Club to pay to the Player the overdue bonuses of EUR 100,000 for the winning of the Crown Prince Cup 2014, plus default interest at a rate of 5% p.a. as from 26 April 2014 until the date of effective payment;

SEVENTH – To order the Club to pay EUR 6,700,000 due as compensation, plus default interest at rate of 5% p.a. as from the date in which the Employment Contract was terminated unilaterally and without just cause, i.e. 29 July 2014 (cf. Art. 17, par. 1 of the FIFA RSTP);

EIGHT – To impose sporting sanctions on the Club for having breached the Employment Contract (cf. Art. 17, par. 4 of the FIFA RSTP); and

NINTH – To confirm that the FIFA TMS was misused and as such, submit the file of the case at hand to the FIFA Disciplinary Committee together with a request for the commencement of disciplinary proceedings against the Club (cf. Art. 25, par. 5, in combination with Art 9 of Annexe 3 of the FIFA RSTP)”.

27. On 31 October 2016, the Club and FIFA jointly nominated Mr Massimo Coccia, Attorney-at- Law and Professor of Law in Rome, Italy, as arbitrator.

28. On 12 December 2016, in accordance with 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 arbitral tribunal appointed to decide the present matter was constituted as follows:

– Prof. Ulrich Haas, Professor of Law in Zurich, Switzerland, as President; – Mr Michele Bernasconi, Attorney-at-Law in Zurich, Switzerland; and – Mr Massimo Coccia, Attorney-at-Law and Professor of Law in Rome, Italy, as arbitrators.

29. On 3 January 2017, the CAS Court Office informed the parties that Mr Dennis Koolaard, Attorney-at-Law in Arnhem, the Netherlands, would act as Ad hoc Clerk.

30. On 9 January 2017, the Club filed its Answer, in accordance with Article R55 of the CAS Code. The Club submitted the following requests for relief:

“I. To fully reject the Appellant’s appeal and to fully confirm the DRC Decision passed by the FIFA DRC on 26 May 2016;

II. For the effect of the above, to state that the Appellant shall be condemned to pay any and all costs of the present proceedings including, without limitation, attorney fees, travel and accommodation costs, as well as any eventual further costs and expenses for witnesses and experts, if any”.

31. On 10 January 2017, FIFA filed its Answer, in accordance with Article R55 of the CAS Code. FIFA submitted the following requests for relief:

“1. That the CAS rejects the present appeal and confirms the aforementioned challenged decision passed by the Dispute Resolution Chamber (hereinafter also referred to as: the DRC) on 26 May 2016 in its entirety.

2. That the CAS orders the Appellant to bear all the costs of the present proceedings.

3. That the CAS orders the Appellant to cover all legal expenses of FIFA related to the appeal proceedings at hand”.

32. On 17 and 18 January 2017 respectively, the Club informed the CAS Court Office that its preference was for an award to be issued solely on the basis of the parties’ written submissions, the Player indicated to prefer a hearing to be held, and FIFA indicated to be of the opinion that the holding of a hearing was not necessary.

33. On 30 January 2017, the CAS Court Office informed the parties that the Panel had decided to hold a hearing.

34. On 31 January 2017, the CAS Court Office, on behalf of the Panel, invited the Club to complete an attached “Redfern Schedule” with respect to its request for production of documents as set out in its Answer.

35. On 6 February 2017, the Club provided the CAS Court Office with a filled-in “Redfern Schedule”, requesting the Panel to order the Player to produce a copy of the CBF correspondence to FIFA dated 24 September 2014, explaining why this document was likely to exist and how its existence became known, and the relevance of the document sought.

36. On 16 February 2017, the Player provided the CAS Court Office with a filled-in “Redfern Schedule”, declaring that the document exists and that it appears to be a correspondence from CBF to FIFA dated 18 September 2014, and provided the CAS Court Office with part of the documentation sought. The Player maintained that the additional documentation sought was not in his possession.

37. On 16 March 2017, FIFA provided the CAS Court Office with a filled-in “Redfern Schedule” and submitted the remaining letters that were exchanged between the CBF and FIFA following the Club’s request for a validation exemption.

38. On 7 April 2017, upon being invited by the Panel to do so, the Club filed its observations in respect of the documents produced. The principal conclusion of the Club being that, in confirmation to the Club’s comments in its Answer, the Player and/or Internacional did not exhaust all possible options in order to ensure the delivery of the ITC before 3 October 2014.

39. On 25 April 2017, upon being invited by the Panel to do so, the Player filed his comments in respect of the Club’s observations, maintaining that the Club’s observations were only a mere repetition of the position in its Answer and that no additional or relevant information was provided by the Club. FIFA did not file any comments within the deadline granted.

40. On 1, 2 and 3 May 2017 respectively, the Club, FIFA and the Player returned duly signed copies of the Order of Procedure to the CAS Court Office.

41. On 5 May 2017, a hearing was held in Lausanne, Switzerland. At the outset of the hearing, both parties confirmed that they had no objection to the constitution and composition of the Panel.

42. In addition to the Panel, Mr Fabien Cagneux, Counsel to the CAS, and Mr Dennis Koolaard, Ad hoc Clerk, the following persons attended the hearing:

For the Player:

– Mr Breno Costa Ramos Tannuri, Counsel; – Mr André Ribeiro, Counsel; – The Player.

For the Club:

– Mr Ettore Mazzilli, Counsel; – Mr Konstantinos Antoniou, Counsel; – Mr Saoud Abdulaziz Al Jassim, Players’ Affairs official of El Jaish FC.

For FIFA:

– Mr Gauthier Bouchat, Legal Counsel of the Players’ Status Department; – Mr Antoine Bonnet, Legal Counsel of the Players’ Status Department.

43. The Panel heard evidence from the following persons, in order of appearance:

– Mr F., TMS Manager and in-house lawyer of Internacional, witness called by the Player, in person; – The Player, in person.

44. Each party and the Panel had the opportunity to examine and cross-examine the witness and the Player in person.

45. Although the Player initially also called Mr R., Director of Registration and Transfer at the CBF, and Mr Y., friend of the Player in Doha, Qatar, as expert witness/witness, and the Club initially called Mr O., Sports Manager of the Club, as witness, these persons finally did not appear before the Panel.

46. During the hearing, the Club sought leave from the Panel to show a video where the Player was allegedly shown to be celebrating the conclusion of the Settlement.

47. Following an objection from the Player, the Panel decided not to allow the Club to present the video as evidence. Even if the video came to the attention of the Club only on 30 April 2017, i.e. after filing the Answer, the Panel found that the Club should have advised the Panel and the other party straight away that it wished to produce new evidence and should have sought leave from the Panel to do so.

48. Following the conclusion of the evidentiary phase of the hearing, the parties informed the Panel that they were close to reaching a settlement. The parties requested the Panel to terminate the hearing and grant them a time limit of two weeks to inform the Panel whether a settlement was reached. In case no settlement were reached, the parties requested to be granted a simultaneous deadline of two weeks to file post-hearing briefs to substitute for their final pleadings at the hearing. In addition, both parties expressly stated that they did not have any objection with the procedure adopted by the Panel and that their right to be heard and be treated equally had been respected.

49. On 19 May 2017, the Club informed the CAS Court Office that no settlement had been reached.

50. On 1 and 2 June 2017 respectively, the Club, the Player and FIFA filed their post-hearing briefs with the CAS Court Office.

51. The Panel 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.

IV. SUBMISSIONS OF THE PARTIES

52. The Player’s Appeal Brief, in essence, may be summarised as follows:

- The FIFA DRC failed to set out the “reasons for the findings” and “the outcome of the evaluation of evidence” in violation of article 5(8), 14(4)(f) and (g) of the FIFA Procedural Rules, because it failed to take into account any of the factual questions raised by the Player during the investigation phase. More specifically, the FIFA DRC failed to, inter alia, take into account the letter of the Player dated 20 August 2014, the statement given to the Brazilian Embassy in Doha, Qatar, that the Club informally refused to issue the Player’s ITC, and that it was not possible for the Player to apply for a provisional ITC since there was no sufficient time available considering that the issuance of a decision in this respect usually takes between 15 and 25 days. For this reason the Appealed Decision must be dismissed in full.

- The Settlement is null and void, since it is undisputed that the Player signed it under duress. Since the validity of a contract signed under duress is not an issue governed by the FIFA RSTP, one has to resort to Swiss law. The fact that the Club exercised duress

follows from the fact that it does not make any sense for the Player to waive all his claims under the Employment Contract, particularly in light of the correspondence exchanged on 20 August 2014. The only scenario capable of explaining the Player’s change of mind is the threat voiced by the Club to block the issuance of the ITC. With reference to article 29(1) and 30(1) of the Swiss Code of Obligations (the “SCO”) and jurisprudence of the Swiss Federal Tribunal (the “SFT”), the Player submits that the concept of “duress” according to Swiss law contains four main elements: i) a threat; ii) a founded fear; iii) the intention of the author to determine the recipient to make a declaration of will; and iv) a causal connection between the fear and the consent. The Player submits that all these elements are fulfilled in the case at hand and that this is a typical case of duress.

- The Club (illegally) misused FIFA TMS for illegitimate purposes. Because the behaviour of the Club is contrary to the spirit of the system regarding transfers of players developed and applied by FIFA, it is undisputed that the Settlement is null and void.

- As a consequence, “it is necessary to place the Club and the Player to the moment in which the former decided to breach the Employment Contract and consider from that moment on the consequences of such decision”.

- It is not in dispute between the parties that the Club breached the Employment Contract without just cause. The Club shall therefore pay compensation for breach of contract to the Player. Because the breach took place during the “protected period”, sporting sanctions shall be imposed on the Club.

- With respect to the calculation of the compensation for breach of contract, the Player submits that clause 10(7) of the Employment Contract shall not be taken into account, because its content is ambiguous and because the clause is unfair and violates the principle of equality. As a consequence, the Panel shall disregard this provision and apply article 17(1) of the FIFA RSTP. Considering that the Club acted in bad faith and that the breach occurred during the protected period, the Player claims to be entitled to an amount of EUR 6,800,000 as compensation for breach of contract.

- Finally, the Panel shall order FIFA to revert the matter to the FIFA Disciplinary Committee in order for disciplinary sanctions to be imposed on the Club for the misuse of FIFA TMS.

53. The Club’s Answer, in essence, may be summarised as follows:

- The Appealed Decision is of utmost correctness concerning both its reasoning and its findings. The Player’s allegations in respect of the members of the FIFA DRC for breaching “formal and procedural requirements of the various regulations of FIFA” are baseless.

- With respect to the execution of the Settlement, the Club submits that it was the Player’s decision to come personally to Qatar at the end of September 2014 in order to exercise pressure on the Club and acquire the consent and agreement of the latter for the

immediate delivery of his ITC to the CBF but also in order to settle other personal issues during his stay in Qatar. It was the Player’s exclusive choice to sign an employment contract with Internacional, despite having offers from other clubs outside Brazil, for which the Club cannot be held accountable, and while being fully aware of all the relevant regulatory requirements concerning his registration.

- The parties only signed the Settlement after finalising the negotiations and after a proper and careful review of the content and wording of the document. As a consequence of the Settlement, the Club “issued” the Player’s ITC and the Player was able to be registered for Internacional by the CBF before 3 October 2014. No pressure or coercion was exercised by the Club on the Player in order to sign the Settlement. The Player did not discharge the required burden of proof in order to establish with cogent evidence all the unfounded allegations made in the Appeal Brief.

- Although the Club does not object to the various elements of “duress” under Swiss law referred to by the Player, it disputes that these elements are complied with. The Player’s allegations that he “did not have […] any offer from club located in other countries”, that “[Internacional] was only good official offer the Player really received” and that “a good offer from Europe or Middle East […] never arrived” are misleading. Their sole purpose is to allegedly demonstrate that that the Player had no other alternative but to sign with Internacional. Furthermore, the Player was not dependent on the Club in order to be registered with Internacional. Instead, he had several options at his disposal. He could have requested FIFA for a provisional registration pursuant to article 8(2)(6) and (7) of Annexe 3 to the FIFA RSTP. He could also have requested the QFA, FIFA TMS or FIFA to intervene. There was no threat against and no significant and imminent danger for the Player.

- Should the Panel decide that the Settlement was signed under duress, the Club subsidiarily submits that this does not render the Settlement null and void. The Player – according to the Club – has failed to declare vis-à-vis the Club, within one year from the execution of the Settlement, that he rejects the contract and that he does not intend not to honour it. Nor did the Player seek restitution for the performance given that the Player had already enjoyed the benefits of such Settlement whereas the Club had already performed the obligation imposed on it by the Settlement, i.e. the immediate delivery of the ITC from the QFA to the CBF.

- Furthermore, the Club refers to the fundamental legal principle of venire contra factum proprium. With reference to CAS jurisprudence, the Club submits that the Player’s allegations are in clear contradiction with his previous behaviour. This position is also governed by the basic legal principle of cuius commoda, eius et incommode”, pursuant to which the one who seeks and obtains a benefit must also take the possible burdens coming with that benefit.

- In case the Panel should decide that the Player is entitled to a compensation, the Club submits that such compensation is limited by clause 10(7) of the Employment Contract, which is a fully valid and enforceable contractual provision. The latter qualifies as a

“liquidated damages” clause under Swiss law. The Club finds it “surprising” that the Player has not submitted a copy of his employment contract with Al Nasr. Such contract has been entered into by the Player at the end of July 2015. It covers two sporting seasons. Any sums earned by the Player during the term specified in the Employment Contract should be deducted from the respective compensation, if any.

- As to the Player’s request for sporting sanctions to be imposed on the Club, with reference to CAS jurisprudence, the Club submits that such right is conferred only upon the competent bodies of FIFA. Such request should, therefore, be dismissed.

54. FIFA’s Answer, in essence, may be summarised as follows:

- The contents of the Appealed Decision is correct, valid, perfectly justified and fully endorsed by FIFA.

- As to the conclusion of the Settlement, FIFA considers that the Player’s arguments are still not corroborated by any conclusive evidence permitting such allegations to be considered as reliable. There is a persisting absence of precision in the Player’s description of the circumstances surrounding the alleged communication by the Club through the QFA to Internacional that the Player had to come in person to Qatar to sign the Settlement.

- According to FIFA little weight shall be given to the declarations made before the Brazilian Embassy in Qatar. Given the identity of the persons that made the declarations (the Player, a member of his entourage and the lawyer of his new employer) and their obvious roles and interests in the case at stake, the reliability and conclusiveness of these statements must be assessed with care. Should the DRC have “to consider null and void contracts / agreements / settlements / waivers (etc.) on the sole basis of a posterior unproven statement of one of its his signee or his connections that he was forced to sign the document at stake, no legal certainty would be sustainable and the pacta sunt servanda principle, which the [Player] relies onto in his own argumentation, would become an empty shell”.

- According to FIFA the Panel shall also take into account the fact that almost a year elapsed between the signing of the Settlement (1 October 2014) and the filing of the claim with FIFA (18 September 2015). Such behaviour is all the more peculiar, since there is no reason for such delay. In particular, the Player did not submit any argument or document in the proceedings before FIFA that was not be available to him already during the weeks following 3 October 2014.

- The burden of proof in respect of “duress” is high and requires “very strong and quasiirrefutable premises, arguments and evidences”. Yet, the Player has failed to meet this threshold.

- Even if the Player was under duress, such situation was not solely provoked by the Club. Instead, it was the Player himself and Internacional who are responsible for this situation. Despite the fact that the Player already signed an employment contract with Internacional

on 16 September 2014, the CBF only submitted a request for a “validation exception” on 24 September 2014, which was subsequently granted on 26 September 2014.

- It was undisputedly the Player’s own decision / risk to sign the Settlement on 1 October 2014 and to not wait until the 7th day of said ITC’s request pending before the QFA, i.e. until 3 October 2014, to possibly ask for FIFA’s urgent advice / intervention.

- Furthermore, article 4 of the Settlement does not set forth a condition for the issuance of the Player’s ITC by the QFA, but rather indicates a chronology of actions.

- As to the Player’s claim for compensation on the basis of article 17(1) of the FIFA RSTP, FIFA submits that it is unable to elaborate on what the FIFA DRC’s interpretation of article 10.7 of the Employment Contract would have been. With reference to the employment contract concluded between the player and Al Nasr Football on 3 August 2015 (submitted as evidence by FIFA), FIFA submits that the remuneration for the 2015/2016 sporting season in the latter contract is superior to the Player’s entitlement under the terms of the Employment Contract.

- Finally, as to the sporting sanctions, and with reference to CAS jurisprudence, FIFA submits that a party has no right to request the application of sporting sanctions on the other party as only FIFA would be entitled to do so.

55. The Player’s post-hearing brief, in essence, may be summarised as follows:

- It was the Club that made the execution of the Settlement a condition for issuing the ITC. This follows from the testimony of Mr F. The latter provided evidence as an expert witness as well as an eyewitness. The Club, on the contrary, has not provided any evidence for its allegations. The witness initially announced by the Club (Mr O, Sports Manager of the Club) finally did not appear before the Panel. The Club did not provide any explanation as to why an employee that initially claimed a large compensation from its former employer suddenly, i.e. a few weeks later, waives all amounts due in a settlement agreement.

- Players do not have a say in relation to the procedure for the issuance or refusal of an ITC. A club that has unilaterally terminated a contract based on a so-called “buy-out clause” has no legitimate interest to reject or delay the issuance of an ITC. This is all the more true, considering that the Club never claimed that the Employment Contract remained valid after having terminated it. On the contrary, there was never any controversy regarding the fact that the Player was free and entitled to enter into a new employment contract with another football club after he had received the Termination Letter from the Club. The allegation of the Club that it was going to reject the issuance of the ITC if the parties did not conclude the Settlement simply confirms the Club’s bad faith vis-à-vis the Player. There was no reason whatsoever to refuse or delay the ITC. All of this is proof that the Club by obstructing the issuance of the ITC sought to obtain an illicit advantage.

- Article 9(1) FIFA RSTP provides that “the ITC shall be issued free of charge without any conditions or time limit”. The addressees of this provision are not only football associations. Instead, the provision contains a general principle that applies to and is recognized by all actors and stakeholders in football. Everyone knows that whether or not a national federation issues an ITC depends on the former football club’s consent or refusal. It follows from article 9(1) FIFA RSTP that no one involved in the process shall (mis-)use its position to extract benefits from the player in its favour. Article 9(2) Annexe 3 FIFA RSTP determines that a club shall (or should) be punished “for having misused the TMS for illegitimate purpose”.

- Contrary to what the Club submits, the Player could not have been registered by Internacional after 3 October 2014, since the domestic rules in Brazil do not permit registration after 3 October 2014.

- Article 21(1) SCO deals with the situation in which one contracting party exploits the weaker position of the other party to its financial benefit. This presupposes that there is a clear disparity between performance and consideration. The Player submits that this is the case. The club’s approval of the issuance of the ITC is no benefit awarded to the Player by the Club that is worth any consideration. Instead, the Club is under a duty not to oppose the issuance the ITC in case the contract has been terminated. Pursuant to the principle of good faith, which is applicable to both clubs and football associations involved in the FIFA transfer system, a club that terminates a contract unilaterally and without just cause is barred from obstructing the issuance of the ITC. In case where there is no valid contract between the former football club and the player the right to free movement of the player and his right to make living by providing football related services always take precedence over any interests of the former club. Thus, the Club had no justification for misusing its procedural position in the context of the ITC proceedings.

- According to the Player, clause 10(7) of the Employment Contract is not a buy-out clause, but a liquidated damages clause. It is true that liquidated damages clauses do not need to be reciprocal in accordance to Swiss law. However, in case the respective interests of the contractual partners are protected in a hugely disproportionate manner, this is contrary to the general principles of contractual stability as well as of Swiss labour law. In case the Player would have breached the Employment Contract, the Club would have been entitled to at least EUR 1,672,730. This is grossly disproportionate. Thus, clause 10(7) of the Employment Contract must be disregarded and the damage shall be calculated according to article 17 FIFA RSTP. According thereto the Player shall receive any outstanding remuneration as well as a compensation of all damages suffered. In addition, the Club’s bad faith and the fact that the breach occurred within the “protected period” shall be taken into account.

56. The Club’s post-hearing brief, in essence, may be summarised as follows:

- The Club regrets that two of the witnesses initially announced by the Player (Mr R., Director of Registration and Transfer at the CBF, and Mr Y., friend of the Player in Doha, Qatar) finally decided to not appear before the Panel.

- The Club submits that it does not follow from Mr F’s evidence that a registration of the Player was impossible after 3 October 2014. It is, thus, not excluded that an eventual rejection of the Player’s registration by the CBF could have been successfully appealed if the ITC had been delivered to the CBF after the respective deadline. Furthermore, Internacional failed to upload a translation of the Player’s employment contract into FIFA TMS on 18 September 2014. This is evidence of Internacional’s negligence throughout the whole process. If the relevant translation had been submitted timely, there would have been sufficient time to apply for the FIFA exception (granted on 26 September 2014 only). Furthermore, the Club notes that no official communication took place between Internacional and the Club and/or the QFA concerning the delivery of the ITC.

- The Club reiterates that the Player’s argument in relation to duress is moot pursuant to article 31 SCO. In the Player’s first written submission to FIFA dated 18 September 2015, the Player did not base any of his requests for relief on duress. Only within his second written submission of 8 December 2015 (which was submitted more than 14 months upon conclusion of the Settlement), did the Player seek to invalidate the Settlement on the grounds of duress.

- Both Mr F and the Player confirmed that during the execution of the Settlement at the Club’s premises, the Player was legally assisted by his counsel, a fact that had been deliberately concealed in the Player’s written submissions. Thus, the Player was not in a weaker position and was not coerced to execute the Settlement. Furthermore, the Club notes that the Player did not protest against the alleged behaviour of the Club either before or after the execution of the Settlement.

- The Player has admitted in the hearing that he could have been registered – in any event – in the next transfer window, i.e. as of 2 January 2015. Consequently, it is not true – as alleged by the Player in the hearing – that without obtaining the ITC before 3 October 2014 his career would be interrupted for six to seven months. On the contrary, the Player only needed to wait for another three months in order to be eligible to play. The nonregistration of the Player on 3 October 2014, thus, would not have caused irreparable harm to his career as he i) would be able to participate in any case in the trainings of Internacional; ii) would still be entitled to receive his salary from Internacional; and iii) would be able to register on 2 January 2015.

- The Club maintains that no issue of duress arises in this case. The Player executed the Settlement consciously and wilfully and with the help of his counsel. In addition, the deal contained in the Settlement is perfectly reasonable. On the one hand, the Player receives the ITC by 3 October 2014, whereas, on the other hand, the Player waives the compensation due to him under clause 10(7) of the Employment Contract. There is no evidence for a manifest disproportion between performance and consideration. The Club

did not obtain an unjustified advantage, since in turn for the Player’s waiver it took over an obligation, i.e. to “issue” the ITC without having any legal obligation to do so according to the applicable rules and regulations. The Player was not in a weaker position, since he was not dependent on the Club’s consent to issue the ITC. Instead, there were several alternatives at his disposal in order to achieve his registration with the CBF. Neither was the Player exploited by the Club, since the Player was and is an experienced football player, had been involved in several international transfers, had the professional support of an experienced counsel and was accompanied by the Head of the Legal Department of Internacional.

- The Club considers important the Player’s behaviour before and after the conclusion of the Settlement. Before signing he claimed to be entitled to a compensation of EUR 6,800,000, whereas he remained completely silent for almost a year upon conclusion of the Settlement.

- With respect to the calculation of the compensation for breach of contract, the Club argues that the Player was finally successful in securing a new employment contract in the Middle East with Al Nasr on 3 August 2015, where he signed a contract worth EUR 4,000,000 net without bonuses for the 2015/2016 sporting season, and EUR 3,000,000 net without bonuses for the 2016/2017 sporting season.

57. FIFA’s post-hearing brief, in essence, may be summarised as follows:

- FIFA finds that the Player’s argument that the Settlement must be declared invalid on the basis of article 341(1) SCO, is to be dismissed, because the Employment Contract was terminated on 29 July 2014, i.e. more than two months before the signature of the Settlement. In view of the strict deadline of one month set out in this provision, the Player’s argument must be rejected from the outset.

- FIFA finds that the “uncomfortable situation” the Player found himself in was the result of his own actions. The Player did not provide any evidence to corroborate his allegation that he made “huge efforts” to find a new club between July and October 2014. On the contrary, the evidence shows that the Player turned down many offers made by clubs which cannot be considered as second-tier clubs. The Player’s decision to refuse these offers and to remain unemployed must be held against him. FIFA submits that signing the Employment Contract with Internacional on 15 September 2014 implied a risk, as it was signed outside of the registration period. Instead of opting for a contract in a country where the registration period was still open, the Player decided to enter into a contract with a Brazilian club even though the registration period had already closed. When starting the negotiations with Internacional, the Player was also aware that his registration was subject to the compliance with the restrictive deadline established by the CBF.

- FIFA also submits that, irrespective of the Club’s behaviour, the Player might have been registered with the CBF before 3 October 2014, as the ITC request referred to in article 8.2 of Annexe 3 FIFA RSTP must be deemed made when the special exemption from

the validation exemption is granted. If the ITC would have been requested by no later than 18 September 2014, the Player could have been registered pursuant to article 8.2(1) of Annexe 3 FIFA RSTP. In case the Club would have refused to issue the Player’s ITC on or before 22 September 2014, the Player could have been registered pursuant to article 8.2(2) of Annexe 3 FIFA RSTP. Thus, had the CBF, Internacional and the Player not wasted time in submitting an incomplete request, the special exemption from the validation exemption would have been granted earlier.

- Even if the ITC could not have been delivered before 3 October 2014, the Player would not have been precluded from playing football. Instead, the Player could have been registered in one of the countries where the registration period was still open after 3 October 2014. As a consequence, FIFA submits that the Player has never been under any duress since the alleged state of duress in essence resulted from his own behaviour and will and not from the Respondent.