Saman Ghoddos, Östersunds FC v. Amiens SC, Fédération Internationale de Football Association (FIFA), Östersunds FC, Saman Ghoddos, SD Huesca

I. INTRODUCTION

1. Mr. Saman Ghoddos and Östersunds FK Elitfotboll AB bring appeals, docketed respectively as CAS 2019/A/6463 and CAS 2019/A/6464, against a decision of the FIFA Dispute Resolution Chamber issued on 28 August 2019 – the operative part was previously issued on 14 June 2019 – which (i) held that the Player terminated his employment contract with SD Huesca without just cause, (ii) ordered the Player to pay to SD Huesca the amount of EUR 4 million, plus five percent interest p.a. from the issuance of the FIFA decision until the date of effective payment, (iii) held Östersunds FC as jointly liable for said payment, and (iv) imposed a four-month ban on the Player from playing official matches (which he has since fully served) and a ban on Östersunds FC from registering any new players, either nationally or internationally, for two entire and consecutive registration periods.

VI. JURISDICTION

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

“An appeal against the decision of a federation, association or sports-related body may be filed with CAS if the statutes or regulations of the said body so provide or if the parties have concluded a specific arbitration

Östersunds FK Elitfotboll AB v. SD Huesca & FIFA & Saman Ghoddos & Amiens Sporting Club, award of 10 November 2020

agreement and if the Appellant has exhausted the legal remedies available to it prior to the appeal, in accordance with the statutes or regulations of that body”.

81. Pursuant to Articles 57. 1 and 58.1 of the FIFA Statues (2018 edition), respectively:

– “FIFA recognises the independent Court of Arbitration for Sport (CAS) with headquarters in Lausanne (Switzerland) to resolve disputes between FIFA, member associations, confederations, leagues, clubs, players, officials, intermediaries and licensed match agents”;

– “Appeals against final decisions passed by FIFA’s legal bodies and against decisions passed by confederations, member associations or leagues shall be lodged with CAS”.

82. The Appealed Decision included a paragraph immediately below its operative part stating that “[a]ccording to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS)” and providing as an attachment a document entitled “Directions with respect to the appeals procedure before CAS”.

83. None of the Parties raised any jurisdictional objection; it follows that the CAS has jurisdiction to decide the present dispute.

VII. ADMISSIBILITY

84. Article R49 of the CAS Code states the following:

“In the absence of a time limit set in the statutes or regulations of the federation, association or sportsrelated body concerned, or in a previous agreement, the time limit for appeal shall be twenty-one days from the receipt of the decision appealed against. The Division President shall not initiate a procedure if the statement of appeal is, on its face, late and shall so notify the person who filed the document”.

85. According to Article 58.1 of the FIFA Statutes (2018 edition), “[a]ppeals … shall be lodged with CAS within 21 days of receipt of the decision in question”.

86. FIFA notified the grounds of the Appealed Decision on 28 August 2019. Both the Player and Östersunds FC lodged their respective appeals with the CAS within the 21 days allotted under Article 58.1 of the FIFA Statutes. The Player and Östersunds FC lodged their respective appeals on 18 September 2019. It follows that the appeals are admissible.

VIII. APPLICABLE LAW

87. Article R58 of the CAS Code provides as follows:

Östersunds FK Elitfotboll AB v. SD Huesca & FIFA & Saman Ghoddos & Amiens Sporting Club, award of 10 November 2020

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

88. According to Article 57.2 of the FIFA Statutes (2018 edition), “[t]he provisions of the CAS Code of Sports-related Arbitration shall apply to the proceedings. CAS shall primarily apply the various regulations of FIFA and, additionally, Swiss law”.

89. In accordance with the above provisions, as is undisputed by the Parties, the Panel must decide the present dispute in accordance with the various FIFA regulations, in particular the 2018 edition of the RSTP and, additionally, Swiss law.

IX. PROCEDURAL MATTERS — A. Holding a hearing by video conference did not violate the Appellants’ rights

90. On 15 and 22 April 2020, despite the Appellants’ request to hold an in-person hearing claiming that their right to be heard would otherwise have been violated, the Panel decided to hold the hearing by video-conference in light of the Covid-19 pandemic and the related CAS Emergency Guidelines of 16 March 2020, as opposed to waiting an indefinite period of time to hold an in-person hearing (see supra at para. 54-56). As indicated in those letters, the Panel was to give its reasoning for its decision in this final Award.

91. The Panel first notes that the Appellants’ request for an in-person hearing was based on the following rationale (as explained in their respective letters of 8 and 22 April 2020):

(i) it would allow the witnesses to testify “in the best conditions” and the Parties’ cases to be “presented in a proper and suitable manner to the Panel”;

(ii) it would ensure that the Player could properly exercise his right to be heard under Article 182.3 LDIP, since testifying by video conference could have an “adverse effect” on the conditions in which the witnesses would testify;

(iii) it would allow the Player’s counsel to accompany him during the hearing, and Östersunds FC’s counsels, who were based in different countries, to participate in the hearing from the same location, which was, according to them, important given that the Swedish lawyer knew the facts while the Swiss lawyer knew the law; and

(iv) it would allow for oral closing statements, avoiding the need for post-hearing briefs and, in turn, additional legal fees for the Player.

Östersunds FK Elitfotboll AB v. SD Huesca & FIFA & Saman Ghoddos & Amiens Sporting Club, award of 10 November 2020

92. The Panel has rejected this Appellants’ request for the following considerations.

93. First of all, deciding to hold a video-conference hearing would not violate any right of the Appellants, including the right to be heard. The CAS Code does not grant the parties a right to a hearing. In fact, pursuant to Article R57 of the CAS Code, the Panel has the discretion, after consulting with the parties and if it considers to be sufficiently well informed, not to hold a hearing at all. Therefore, a fortiori, the Parties have no right to an in-person hearing over one by video-conference.

94. Second, Article R.44.2 of the CAS Code – applicable to appeals proceedings through Article R57 – expressly provides that the “President of the Panel may decide to conduct a hearing by videoconference”.

95. Third, the CAS Code provides for the “efficient conduct” and “efficient running” of the proceedings (Articles S12 and S20) and, pursuant to Article R59, the Panel has a duty to pursue a speedy resolution of the dispute (in principle, the award should be issued “within three months after the transfer of the file to the Panel”). At the moment the Panel had to decide whether or not to hold an in-person hearing, it was unclear due to Covid-19 and the related travel restrictions – particularly with Parties, counsel and arbitrators located in no less than seven countries (France, Germany, Italy, Spain, Sweden, Switzerland and the UK) – when it would become possible for all Parties to safely travel to and convene in Lausanne to hold such a hearing if it were postponed. In all likelihood, at the time of issuing this Award, an in-person hearing would have not yet been held. Therefore, in order to fulfil its duty under Article R59 of the CAS Code, the Panel considered it appropriate to hold a hearing by video conference (and, with the benefit of hindsight, it still considers it was the appropriate decision).

96. Fourth, the Appellants failed to explain how a video conference would impair the witnesses’ ability to testify properly or the counsel’s ability to present their clients’ cases to the Panel. The results of the hearing by video conference actually prove that no such impairment was caused; the hearing went smoothly, with the witnesses and counsel perfectly able to participate therein.

97. Fifth, the Panel considered it was unnecessary for counsel to accompany the Player and his brother to the hearing or for Östersunds FC’s counsel to participate in the hearing from the same location. Counsel and their clients had ample time to adequately prepare for the hearing and, moreover, could request the Panel for short breaks to confer privately by phone amongst themselves.

98. Sixth, considering all of the above, the Panel found that the Player incurring additional legal fees for post-hearing briefs could not be a reason to require an in-person hearing. The increase of costs is a natural result of an arbitral tribunal ordering an additional procedural activity (such as, e.g. the production of documents). In any case, the Panel considered that with a

Östersunds FK Elitfotboll AB v. SD Huesca & FIFA & Saman Ghoddos & Amiens Sporting Club, award of 10 November 2020

video hearing the Player would be significantly saving on costs for travel and accommodation for himself, his brother and his legal team.

B. Inadmissibility of SD Huesca’s Answer and the consequences thereof

99. SD Huesca acknowledges that it filed its Answer late; nevertheless, SD Huesca contests that its Answer is inadmissible as a result thereof. SD Huesca argued in a letter to the CAS of 5 February 2020 that the late filing was simply a result of a “material error in the calculation of the deadline” and that such an error cannot lead to its Answer’s inadmissibility because it would be excessively formalistic and violate the principle of equal treatment, considering that all of the other Parties to the proceeding received extensions to file their respective Answers.

100. In the Panel’s view, the CAS Code is clear that requests for extensions may not be made, and therefore not granted, after the expiration of a deadline. Indeed, according to Article R32 of the CAS Code, an extension may only be granted “if the circumstances so warrant and provided that the initial time limit has not already expired” (emphasis added). The Panel observes that in the present case SD Huesca failed to request an extension before it expired; therefore, SD Huesca cannot be entitled to one. In this respect, it is irrelevant to the Panel that the other Parties to the proceeding requested and obtained extensions to file their respective Answers. The CAS Code does not stipulate that an automatic extension must be provided to one respondent where another party properly requested and obtained an extension of its own. Moreover, the Panel finds that the equality of the parties and a fair proceeding is not guaranteed by bending the CAS Code in favour of the needs of one party, as SD Huesca requests the CAS to do. Instead, it is guaranteed by (i) requiring all of the parties to respect the CAS procedural rules, and (ii) having the CAS generally and evenly apply said rules to all parties.

101. In light of the above, the Panel confirms its decision of 7 February 2020 that SD Huesca’s Answer is inadmissible pursuant to Article R55 of the CAS Code (see supra at para. 52).

102. Having confirmed that decision, the Panel must determine, aside from the inadmissibility of the Answer, what are the other consequences stemming from SD Huesca’s belated filing of that submission.

103. In this regard, the Appellants submit that SD Huesca should not be allowed to plead orally or in writing. In particular, the Appellants argue that SD Huesca should “not be allowed to cure the inadmissibility” of the Answer by filing post-hearing briefs. In essence, the Appellants argue that SD Huesca must lose its status as a respondent.

104. First of all, the Panel observes that there is no rule of the CAS Code providing that a respondent loses its right to be a party altogether and/or to defend itself in the subsequent stages of the arbitration proceeding if it files a belated answer. Article R55 of the CAS Code, which deals with a belated answer, only indicates that “[i]f the Respondent fails to submit its answer by the stated time limit, the Panel may nevertheless proceed with the arbitration and deliver an award”. This

Östersunds FK Elitfotboll AB v. SD Huesca & FIFA & Saman Ghoddos & Amiens Sporting Club, award of 10 November 2020

is particularly telling when compared to other provisions of the CAS Code that do require the withdrawal or termination of a case for a belated filing. In particular, the Panel refers to:

– Article R49 of the CAS Code, which states that the “Division President shall not initiate a procedure if the statement of appeal is, on its face, late and shall so notify the person who filed the document. When a procedure is initiated, a party may request the Division President or the President of the Panel, if a Panel has been already constituted, to terminate it if the statement of appeal is late”; and

– Article R51 of the CAS Code, which provides that if the appellant fails to submit its appeal brief within the set time limit, “the appeal shall be deemed to have been withdrawn”.

105. Second, in the Panel’s view, Article R56 of the CAS Code does not preclude the Respondent from pleading at the hearing within the scope of the submissions it made in the first instance proceedings before the DRC (and which were reported in the Appealed Decision), or from submitting post-hearing briefs strictly limited to commenting on the evidence presented at the hearing (as was ordered by the Panel). In the Panel’s view, Article R56 of the CAS Code cannot be interpreted in such a restrictive manner as the Appellants propose; the clear rationale behind this provision is to prevent a party from ambushing the other party at the hearing. Therefore, it is not contravened by referencing the FIFA case file and, in particular, SD Huesca’s position before the FIFA DRC as evidenced in that file and in the Appealed Decision. Article R56 of the CAS Code is also not violated by SD Huesca pleading orally and challenging the evidence put forward at the hearing. To hold otherwise would mean that, under Article R56 of the CAS Code, all parties to CAS appeals proceedings would always be restricted in their oral statements to repeating exactly what they have already written in their briefs prior to the hearing; this would essentially make all oral pleadings at hearings meaningless and unnecessary. In principle and in practice, parties are permitted to expand on their written submissions at a hearing provided that they remain within the scope of their case, as established in prior submissions (including those presented during the first instance proceedings). Indeed, it is not unusual in CAS hearings that, before the parties’ oral pleadings, the panel expressly advises the parties’ attorneys not to merely repeat orally what they have already stated in their written briefs.

106. Based on the above, the Panel holds that SD Huesca’s failure to submit its Answer on time did not require, as the Appellants imply, to essentially exclude it as a party in the present arbitration. SD Huesca still had the right to plead orally at the hearing and to submit a posthearing brief, both within the aforementioned scope limitations.

107. This does not mean, nevertheless, that SD Huesca’s late filing did not come “without a price”. SD Huesca was sanctioned – and to a substantial degree – for the belated filing of its Answer by not being allowed to:

(i) have its Answer on file and, in turn, not being able to further elaborate on the arguments it presented before the DRC;

Östersunds FK Elitfotboll AB v. SD Huesca & FIFA & Saman Ghoddos & Amiens Sporting Club, award of 10 November 2020

(ii) raise those objections that are only permitted to be made within the first written defence (such as, for example, a jurisdictional objection);

(iii) submit any evidence or ask for evidentiary measures. This includes not being allowed to submit fact or expert witness statements, to call witnesses to testify at the hearing, or to requests for the production of documents, etc.; and

(iv) put forward any motions for relief, given that it is constant CAS practice that motions for relief may not be amended at the hearing.

108. The Panel agrees that SD Huesca cannot cure the inadmissibility of its Answer by submitting, in its post-hearing brief, the arguments and evidence that were disregarded as a consequence of the Answer’s inadmissibility. For this very reason, at the end of the hearing and by letter of 7 February 2020, the Panel ruled that the Parties would be strictly limited in their post-hearing briefs to commenting on the evidence presented during the hearing.

109. The Panel notes that SD Huesca did not fully comply with the instructions of the Panel made on 7 February 2020 and at the outset of the hearing(see supra at paras. 61, 62 and 59). Instead, to a certain extent, SD Huesca attempted to submit its Answer “through the back door”. For one, SD Huesca submitted motions for relief in both its post-hearing brief and orally at the hearing. In accordance with its holding at para. 107 above, the Panel strikes those motions for relief and shall accordingly disregard them in their entirety. Secondly, SD Huesca did not fully stay within the scope of the arguments it made before the FIFA DRC (in particular, in relation to damages), and made comments in its post-hearing brief on matters that went beyond the evidence presented at the hearing. The Panel thus strikes and disregard those off-limit arguments and comments.

110. The Appellants further submit that SD Huesca’s late filing of the Answer means that the Appellants’ position has gone unchallenged and that, therefore, considering the de novo nature of a CAS appeals under Article R57 of the CAS Code and FIFA’s alleged status as a nominal party only, the Appellants’ case must be deemed proven on the facts and the law and their appeal accepted in full. On this point, the Panel first finds that FIFA is not merely a “nominal” party, or one of “second class” or “inferior status”. FIFA has standing to be sued and is a full respondent, given that it is the association that issued the Appealed Decision and imposed sanctions on both Appellants; as such, its submissions must be taken into account to the same extent as those of the Appellants and it is not limited to pleading only on the disciplinary sanctions imposed, but may also plead with respect to the facts which led to said sanctions even if based on a contractual dispute that, in itself, did not involve FIFA. Second, the Panel holds that SD Huesca’s failure to submit an answer does not mean that the Panel must blindly accept the position of the Appellants. At the end of the day, the Panel is tasked with assessing whether the Appealed Decision should be confirmed or overturned, in part or in full, and it may make such assessment and reach a conclusion thereon even in the absence of one of the parties’ answers in accordance with Article R55 of the CAS Code.

Östersunds FK Elitfotboll AB v. SD Huesca & FIFA & Saman Ghoddos & Amiens Sporting Club, award of 10 November 2020

X. MERITS

111. In view of the Parties’ differing positions on the substance of the matter, the Panel must determine the following issues:

(i) Whether Amiens SC has standing to be sued;

(ii) Whether the party to the FIFA case, against which the claim of SD Huesca was directed, was Östersunds FK Elitfotboll AB rather than “Östersunds Fotbollsklubb”, that is the non-profit organization controlling the club;

(iii) Whether Östersunds FC and SD Huesca entered into a transfer agreement;

(iv) Whether the Huesca Employment Contract was invalid, impossible to perform ab initio and/or subsequently, and/or validly terminated by the Player for deceit or mistake; and

(v) If the Huesca Employment Contract was valid and not terminated with just cause by the Player, whether and to what extent (a) the Player is liable to SD Huesca under Article 17.1 RSTP and/or subject to sanction under Article 17.3 RSTP, and (b) Östersunds FC is jointly liable for any amount awarded to SD Huesca, if any, under Article 17.2 RSTP and/or subject to sanctions under 17.4 RSTP for inducement of breach of contract.

112. The Panel will discuss each matter separately below.

A. Amiens SC has no standing to be sued

113. The Appealed Decision held that Amiens SC was neither liable to pay SD Huesca compensation under Article 17.2 RSTP nor subject to sanctions under Article 17.4 RSTP. As no party challenged before the CAS that determination of the DRC nor raised any claims whatsoever against Amiens SC in the present proceedings, the Panel holds that Amiens SC has nothing at stake in the present arbitration and, therefore, has no standing to be sued (see CAS 2006/A/1189). The Panel therefore dismisses the appeals filed insofar and confirms the Appealed Decision as it relates to Amiens SC.

B. Östersunds FC’s identity

114. Preliminarily, the Panel notes that this matter has nothing to do with the situation occurred in the well-known FC Sion case (CAS 2009/A/1880), where the appeal was intentionally brought not by the professional club FC Sion but by the associated amateur club by the same name, which tried to argue (misleadingly) that the amateur club was the actual addressee of the FIFA decision in lieu of the professional club (with the result that the Panel deemed the appeal

Östersunds FK Elitfotboll AB v. SD Huesca & FIFA & Saman Ghoddos & Amiens Sporting Club, award of 10 November 2020

inadmissible due to the amateur club’s lack of legal interest and standing to appeal against the FIFA decision). In the present case, as will be seen below, Östersunds FC has a fair concern related to the Appealed Decision and merely requests that this Award clearly indicates that this case only involves the professional club and not the non-profit organization having a similar name.

115. The issue actually derives from the fact that SD Huesca, in its claim to FIFA dated 30 August 2018, generically named as defendant the “Swedish club Östersunds FK”, while the DRC, in the Appealed Decision, made generic reference to “Östersunds FC”. However, it is clear to the Panel in the context of the claim and of the Appealed Decision that both SD Huesca and the DRC truly made reference to the Swedish professional club participating in the Swedish top football division (Allsvenskan), which had an employment contract with the Player and negotiated the Player’s transfer in the Summer of 2018. Such club is generally known by the public in Sweden or abroad as Östersunds FK or Östersunds FC, but its full formal name is “Östersunds FK Elitfotboll AB”. It is also clear that neither SD Huesca nor the DRC wished to involve in the case the association owning the club and named “Östersunds Fotbollsklubb”, given that the latter does not employ professional players nor takes part in the top Swedish championship.

116. Indeed, in its first submission before the DRC, Östersunds FC clearly stated the following: “For avoidance of any doubt, it needs to be clarified that it is Östersunds FK Elitfotboll AB and not Östersunds Fotbollsklubb that is part of this dispute. Östersunds FK Elitfotboll AB, reg. no. 559084-7T77, is a limited liability company owned by the nonprofit association Östersunds Fotbollsklubb. The Player was registered with Östersunds FK Elitfotboll AB, the Player had a valid player’s contract with Östersunds FK Elitfotboll AB and it is Östersunds FK Elitfotboll AB that is responsible for all matters related to the representative team playing in the Swedish Premier League”.

117. No Party to the case contested or challenged the above assertion during the DRC proceedings, nor did the DRC deal with this matter in the Appealed Decision.

118. As a consequence, the Panel has no hesitation in finding that the DRC made no “mistake” (as the Swedish club characterizes it) in its decision but it simply made reference to Östersunds FK Elitfotboll AB by using the (admittedly ambiguous) abbreviated and anglicized form “Östersunds FC”. Accordingly, as requested by this Appellant, the Panel will make sure to eliminate any ambiguity and, in the operative part of this Award, will clearly make reference to full formal name of the professional club Östersunds FK Elitfotboll AB.

C. Conclusion of the transfer agreement between Östersunds FC and SD Huesca

119. Preliminarily, the Panel rejects FIFA’s submission that the Panel may not deal with the issue of the existence or not of the transfer agreement between Östersunds FC and SD Huesca because, pursuant to Articles 22(f) and 23 RSTP, it is the PSC and not the DRC which would be competent to adjudicate transfer disputes between clubs. The Panel finds that this could

Östersunds FK Elitfotboll AB v. SD Huesca & FIFA & Saman Ghoddos & Amiens Sporting Club, award of 10 November 2020

be a pertinent objection if the core of the matter in dispute before it were a transfer dispute. This, however, is not the case and the Panel is of course allowed to assess and determine preliminary questions involving the alleged transfer agreement. In addition, the Panel notes that FIFA itself, acting through its body DRC, stated in the Appealed Decision that “the DRC […], in accordance with art. 24 par. 1 in conjunction with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2019), […] is competent to decide on the present litigation, which concerns an employment-related dispute with an international dimension between a Spanish club, an Iranian player, a Swedish club and a French club” (section II, para. 2 of the Appealed Decision, emphasis added). The Panel concurs with the DRC that the present case relates to an employment-related dispute, given that it originates from SD Huesca’s claim based on the Player’s termination of the Huesca Employment Contract. In any event, the Panel notes that FIFA does not ask the Panel to set aside the decision because the DRC supposedly violated the RSTP; on the contrary, in its motions for relief FIFA requests that the Panel confirm the Appealed Decision (see supra at para. 72). Nor was this matter raised by the Appellants as a reason to set aside the award. As a consequence, this is not even a matter that this Panel would need to adjudicate.

120. However, if the sense of this FIFA’s submission is that the Panel would be prevented from dealing with the transfer agreement because this matter falls outside of the objective scope of the Appealed Decision, the Panel does not share FIFA’s concern. Indeed, in the context of resolving the dispute concerning the alleged breach of the Huesca Employment Contract, the Appealed Decision did deal with the issue of whether a transfer agreement was concluded or not between Östersunds FC and SD Huesca (see section II, para. 7 et seq. of the Appealed Decision). As a consequence, within that same context the Panel also has the power to assess the transfer agreement; as a consequence, this FIFA’s submission must be discarded.

121. This said, the Panel observes that Östersunds FC argues that it never entered into an agreement with SD Huesca for the transfer of the Player (see supra at para. 71). The Panel finds, however, that the clubs agreed on the object of the contract (the transfer of the Player from Östersunds FC to SD Huesca) and on the fundamental obligations of the Parties (Östersunds FC had to release the Player in favour of SD Huesca and the latter club had to pay the agreed remuneration to the former club); in short, the clubs agreed on the essentialia negotii, i.e. on all the essential elements necessary to form a valid and binding contract under Swiss law. Indeed, on 7 August 2018, SD Huesca sent Östersunds FC a formal offer to acquire the Player in exchange for EUR 3 million and a 20% sell-on fee, and on the same day Östersunds FC unequivocally accepted that offer in writing by replying that the “offer is ok” and requesting SD Huesca to send a draft written agreement (see supra at para. 10 et seq.).

122. The Panel:

(i) rejects Östersunds FC’s submission that no transfer agreement had allegedly been reached because the Parties had yet to negotiate certain details of the transfer (such as whether the EUR 3 million would be inclusive or exclusive of training compensation and solidarity compensation, how the sell-on fee would be calculated, and the dates

Östersunds FK Elitfotboll AB v. SD Huesca & FIFA & Saman Ghoddos & Amiens Sporting Club, award of 10 November 2020

on which payment would be due, etc.) or because the first draft of the transfer agreement contained certain errors as to the agreed-upon terms (for example, a reference to the transfer fee being EUR 2.3 million). In the Panel’s view, only “secondary terms” were still to be agreed; accordingly, agreeing on those terms and correcting mistakes – which Östersunds FC offered to do itself (see supra at para. 13) – would have been part of the implementation of the transfer agreement; however, failure to do so did not affect the contract’s existence. Indeed, pursuant to Article 2 SCO, “where the parties have agreed on all the essential terms, it is presumed that the contract will be binding notwithstanding any reservation on secondary terms”. For those “secondary terms” which the parties are unable to reach an agreement on, the court is empowered “to determine them with due regard to the nature of the transaction” (see Article 2 SCO).

(ii) rejects Östersunds FC’s position that under the FIFA regulatory framework and/or industry practice a transfer agreement is allegedly only binding once it is formally signed. As just mentioned, the clubs became bound to the transfer under Swiss law as soon as they agreed by email to the essentialia negotii. The binding nature of that contract is thus unaffected by the fact that, thereafter, a signed document could still be necessary in order to move forward with registering the Player through TMS, i.e. that some formalities needed to be accomplished in order to implement the transfer under the RSTP.

(iii) rejects Östersunds FC’s submission that the Parties allegedly intended to be bound by the transfer agreement only upon its signature. There is no proof of such an intention, either by mutual consent, by the expressed will of one Party, or even by an implied action.

− First, even if Östersunds FC was, as it claims, operating as if the transfer agreement would only be binding upon its signature on a formal document, when it accepted the essentialia negotii of the transfer by email of 7 August 2018, it did not make any reservation or express to SD Huesca – then or before – that it wished to condition that acceptance on the signing of a formal transfer agreement. The fact that, with its acceptance, Östersunds FC also requested SD Huesca to draft a transfer agreement was not, in the Panel’s view, an expression of the Swedish club’s alleged will to condition the transfer agreement on its signature, but only an indication vis-à-vis SD Huesca that it was moving forward in order to perfect the formalities needed to submit the transfer agreement to the FIFA TMS. In other words, the Swedish club became bound with the email of 7 August 2018 even if it was operating internally under the (false) assumption that the transfer agreement would not become binding until the signature of a formal document. In this respect, the Panel points out, making reference to CAS precedents applying Swiss law, that it is “well known that in contractual negotiations, the parties must consider the risk to be bound at an earlier stage than they sought” and that “good practice requires from

Östersunds FK Elitfotboll AB v. SD Huesca & FIFA & Saman Ghoddos & Amiens Sporting Club, award of 10 November 2020

the parties to expressly mention that the document is not the final contract and that it does not represent the definitive agreement between the parties” (CAS 2008/A/1589 at para. 13).

− Second, SD Huesca indicated that it awaited Östersunds FC’s considerations about said draft transfer agreement and requested its signature after the Parties had reached (through the aforementioned exchange of emails which culminated by the clear acceptance of the offer on 7 August 2018) their agreement on all the essential elements of the transaction; therefore, it is clear, as stated above, that the clubs were simply moving forward to implement their agreement through the formal documents needed for the FIFA TMS process. No term included in the draft written agreement can change the fact that the Parties had already reached an agreement on all the essentialia negotii of the transfer; of course, the Parties could have later agreed to supplement or even supersede the agreement previously reached by email but this did not occur, as the draft transfer agreement prepared by SD Huesca remained an inchoate document. In light of the above, the Panel finds inapplicable Article 16 SCO, which states that “where the parties agree to make a contract subject to formal requirements not prescribed by law, it is presumed that the parties do not wish to assume obligations until such time as those requirements are satisfied”; indeed, the formal requirements should have been agreed by the Parties before the exchange of emails that concluded the transfer agreement and this did not occur.

− Third, the fact that transfer agreements are ultimately included in a properly formalized contractual document (in particular, to comply with the TMS procedure) does not mean that the Parties intended the transfer agreement to be conditioned on its signing. As just mentioned, under Swiss law a transfer agreement is concluded as soon as all the essentialia negotii are agreed-upon, as occurred in the present case.

(iv) rejects Östersunds FC’s argument that, pursuant to CAS 2016/A/4462, for a transfer agreement to be considered as valid and binding it must “at least contain the following elements (i) the name of the parties (ii) the object (iii) the remuneration (iv) the date of the contract, and (v) the signature of the club’s representatives” (emphasis in Östersunds FC’s Answer). The Swedish club misinterprets that case. The panel in CAS 2016/A/4462 simply found that the specific transfer agreement under analysis was effective and binding because it contained the aforementioned elements; it did not, however, hold that all of the elements mentioned were necessary in every case to find a transfer agreement effective and binding (i.e. that a transfer agreement could not have been reached (i) without one of those elements present, or (ii) in another manner altogether – for example, by email without the formal signature of the parties, as occurred in the present case).

(v) rejects Östersunds FC’s submission that the transfer agreement is allegedly invalid because two of the three conditions inserted into the draft prepared by SD Huesca

Östersunds FK Elitfotboll AB v. SD Huesca & FIFA & Saman Ghoddos & Amiens Sporting Club, award of 10 November 2020

were never satisfied (i.e. that Östersunds FC sends the ITC, prepares and submits the necessary documents to the RFEF, and that SD Huesca pays the first instalment). First of all, these conditions may not be used to assert the invalidity of the transfer agreement because they were never agreed upon by Östersunds FC and SD Huesca, with the consequence that the draft agreement prepared by SD Huesca remained, as said, an inchoate document that did not supersede the agreement reached by email on 7 August 2018. Second, those conditions inserted in the draft agreement were not essential elements of the transfer agreement but mere “secondary terms” mostly related to the administrative process implementing the transfer. In fact, the Panel considers it unfair for Östersunds FC to argue that SD Huesca did not fulfil these conditions, given that the Swedish club undermined the transfer agreement by not following through with the administrative formalization of the transfer agreement, pressuring the Player to terminate the Huesca Employment Contract against the Player’s will, and then trading the Player for a higher amount to Amiens SC. The Panel observes that SD Huesca did attempt to fulfil the conditions. Indeed, on 14 August 2018, it in vain requested Östersunds FC to “formalize in writing the transfer agreement and introduce in the TMS both the transfer order of the player and the information and documents required by the system”.

123. In light of the above, the Panel holds that the Östersunds FC and SD Huesca did enter into an effective and valid transfer agreement. As a consequence, all of the Appellants’ submissions claiming the invalidity or ineffectiveness of the Huesca Employment Contract due to the alleged lack of a transfer agreement, are bound to fail.

D. Validity of the Huesca Employment Contract

124. The Appellants argue that no breach of Article 17 RSTP could have occurred since there was no valid employment agreement.

125. The first reason why they do not consider the Huesca Employment Contract as valid is because pursuant to Article 151 SCO the contract was allegedly subject to certain necessary prerequisites or implied condition precedents, neither of which were fulfilled. More specifically, the Appellants argue that, before the Huesca Employment Contract, the clubs had to enter into a written transfer agreement and the Player had to terminate the Östersunds Employment Contract.

126. The Panel observes that there is no rule in the RSTP setting out the specific order of steps that must be taken to sign a player. While CAS panels have previously declared that the ideal or “ordinary course” of a transfer is the signature of a transfer agreement followed by the signature of the employment contract (see CAS 2016/A/4489 at para. 99), they have not – and rightfully so – considered that to be the only and mandatory way. In practice, transfers occur in a variety of different manners. For example, a typical way is for the parties to sign all agreements – the transfer agreement, the new employment contract, and the termination of the old employment contract – all in one sitting, with the specific aim to avoid the exact

Östersunds FK Elitfotboll AB v. SD Huesca & FIFA & Saman Ghoddos & Amiens Sporting Club, award of 10 November 2020

complications that arose in the present case. As there is no mandatory sequence of events for the transfer of a player, the Panel finds that the validity of the Huesca Employment Contract was not preconditioned on the clubs entering into a written transfer agreement (which, in any case, as held supra at para. 121 et seq., the clubs did by email of 7 August 2018) or on the termination of an existing employment contract.

127. That said, for the sake of completeness, the Panel must reject FIFA’s argument that, in order to reconcile the situation where a player signs multiple employment contracts, the signing of the second employment contract must be deemed – pursuant to the FIFA Commentary to the RSTP (according to which a player “can only enter into one employment relationship at a time” and that “[i]f he signs a second contract, the player effectively terminates the first one”) – to automatically terminate the first. As FIFA expressly acknowledged at the hearing upon questioning by the Panel, this is not a rule per se but, rather, only a commentary. There is in fact no such rule in the RSTP, and the Panel is of the firm view that the Commentary, by definition, may be of help in interpreting existing provisions but may not create new rules altogether. In any event, the Commentary’s assertion is even contradicted by the RSTP, given that the application of Article 18.5 actually presupposes the existence at the same time of two employment contracts made by one player with two different clubs.

128. The Appellants then argue that the Huesca Employment Contract is not valid because it was impossible to perform ab initio (Article 20 SCO) and/or subsequently (“impossibilité subséquente”), as there was no signed transfer agreement, no entry was ever made into TMS, and no ITC was ever issued. The Panel finds that perfecting the documents needed to make an entry into the TMS system is only part of the administrative formalities that the parties must perform once the transfer agreement and the employment agreement are concluded. The fact that the formalities needed to complete the administrative procedure at FIFA were not accomplished only depended on the non-performance by Östersunds FC of its obligations under the transfer agreement. Of course, a breach of an agreement cannot transform something that can (and actually must) be done into something that is “impossible” to be done.

129. The Appellants then argue that the Huesca Employment Contract is invalid because it was entered into in violation of Article 18.3 RSTP. The relevant part of that provision states that a “club intending to conclude a contract with a professional must inform the player’s current club in writing before entering into negotiations with him. […] Any breach of this provision shall be subject to appropriate sanctions”. First of all, the Panel finds that Article 18.3 RSTP is irrelevant for the purposes of determining the validity of an employment contract because the provision is disciplinary in nature only. Second, this rule is clearly meant to avoid that a club secretly contacts a player behind the back of the club that currently employs that player. However, based on the evidence on file and the conduct of the Parties, the Panel is persuaded that Östersunds FC was perfectly aware that SD Huesca would enter into negotiations with the Player. Even if Östersunds FC thought that the Player would not have signed yet an employment contract on

Östersunds FK Elitfotboll AB v. SD Huesca & FIFA & Saman Ghoddos & Amiens Sporting Club, award of 10 November 2020

the occasion of his trip to Spain, it certainly knew that the Player would fly to Spain and enter into negotiations with SD Huesca.

130. Finally, Östersunds FC argues that, because SD Huesca allegedly never responded to the Player’s Termination Letter, it consented to the Player’s departure. The Panel observes, however, that on 20 August 2018, SD Huesca did in fact reply to the Player’s letter and indicated that it would file a claim before FIFA (see supra at para. 25). Accordingly, this Östersunds FC’s submission also fails.

E. No just cause to terminate the Huesca Employment Contract

131. The Player argues that even if the Huesca Employment Contract was valid and not impossible to perform (as the Panel has held), the Player terminated the contract with just cause. In support, the Player claims that he was deceived by SD Huesca’s false misrepresentations about the status of the transfer negotiations between the clubs or, alternatively, that he entered into the contract by fundamental error due to SD Huesca’s mistaken misrepresentations about the same.

132. For the following reasons, the Panel finds that the Player entered into the Huesca Employment Contract willingly and without fraud or mistake.

133. First, it is clear to the Panel from the Player’s position and witness statement before the DRC that he believed the Termination Letter – which cited fraud, mistake and the lack of a transfer agreement as grounds for termination – to be “full of lies”. Indeed, the Player’s Duplique before FIFA expressly “confirms that he was manipulated in the interest of third parties to agree to sign a letter full of lies” (“confirme ainsi avoir été manipulé en faveur d’intérêts tiers afin d’accepter de signer une lettre mensongère”).

134. Second, at the meeting with SD Huesca’s representatives, the Player was assisted by the individuals of his choice (his brother, an intermediary, Mr. Pina, and a lawyer) and, above all, confirmed in this arbitration that he was fully aware he was signing an employment contract and that he understood and accepted the contents thereof. The fact that SD Huesca only provided the Player with a Spanish version of the Huesca Employment Contract and thus that the Player – who does not speak that language – was unable to read the contract himself does not affect its validity. This is because it is the Player’s own responsibility to understand the content of an agreement he is signing (see CAS 2015/A/3953 & 3954 at para. 45). In any case, as acknowledged by the Player and his brother in their respective testimonies, Mr. Pina’s lawyer actually translated the contract for the Player at the meeting held on the morning of 8 August, and discussed with him the proposed salary and bonus. The Player then, through Mr. Pina, even went on to counter the terms of the contract, which SD Huesca ultimately accepted. In other words, the Player was not only fully aware he was signing an employment contract, but was also aware of and accepted the specific contents of that agreement (in this regard, the Panel does not find plausible the Player’s allegation that, once Östersunds FC translated the

Östersunds FK Elitfotboll AB v. SD Huesca & FIFA & Saman Ghoddos & Amiens Sporting Club, award of 10 November 2020

Huesca Employment Contract into English, he noticed that the terms were allegedly different than those contained in the Spanish version as translated by Mr. Pina, given that he has repeatedly confirmed that he was very happy that he had signed the Huesca Employment Contract).

135. Third, the Player and the Spanish club were aligned as to the performance and consideration of the deal. Indeed, as already mentioned, the Player testified that during the meeting of 8 August 2018 he countered the terms first proposed by SD Huesca before coming to an agreement.

136. Fourth, SD Huesca neither purposely nor mistakenly misrepresented the status of the transfer negotiations between the clubs. No such fraud or fundamental error occurred because, as previously held supra at para. 121 et seq., Östersunds FC and SD Huesca had in fact agreed, in a valid and binding manner, to transfer the Player by email of 7 August 2018. And the Player was fully aware of this agreement. Indeed, even though the Player now claims otherwise, the Panel is comfortably satisfied that his brother, who travelled with the Player to Huesca, received and showed to his brother said email. This is evident from the Player’s own witness statement before the FIFA DRC in which he unequivocally declared that “During our trip to Huesca, my brother received from Lalil Benyahia a copy of the email exchanged between Huesca and Östersunds in which Mr. Kindberg said ‘the offer is ok …’”.

137. Fifth, the Player declared in his testimony that he was very happy with signing with SD Huesca and with the opportunity to play in La Liga and that he later regretted sending the Termination Letter.

138. As the Player was not coerced to enter into the Huesca Employment Contract by fraud or mistake, the Panel finds that he did not have just cause to terminate the Huesca Employment Contract.

F. No breach by SD Huesca of the principle of good faith

139. The Player argues that SD Huesca’s behaviour breached the principle of good faith and, therefore, that the Spanish club does not deserve any legal protection under Article 2(2) SCC. Based on the evidence before it, the Panel does not consider SD Huesca’s behaviour to have been in bad faith. As previously mentioned, the clubs had agreed to the transfer of the Player prior to his trip to Huesca. Therefore, SD Huesca did not mislead the Player regarding the status of the transfer deal and acted within its rights when it signed the Huesca Employment Contract. For the same reason the Panel rejects Östersunds FC contention that SD Huesca violated the legal principle of nemo auditur propriam turpitudinem allegans.

140. Actually, the Panel feels that, if there was one party that did not act fairly and transparently, this was Östersunds FC. In fact, it appears from the evidence on file that, while Mr. Kindberg was accepting by email SD Huesca’s offer and acting vis-à-vis the Spanish club as if the Player’s

Östersunds FK Elitfotboll AB v. SD Huesca & FIFA & Saman Ghoddos & Amiens Sporting Club, award of 10 November 2020

transfer was a done deal (by embarking in the steps needed to implement the transfer to SD Huesca and by allowing the Player to go to Huesca, meet SD Huesca’s representatives and undergo a medical examination), he was also negotiating with other clubs without informing SD Huesca. This is clear, in particular, from (i) the text messages of Mr. Kindberg to the Player on the morning of 8 August 2018, asking him to be prepared to go to the airport in Barcelona for further travel at any moment later that day to Birmingham and signalling that all doors would be kept open (see supra at para. 18), and (ii) the undue pressure put on the Player to terminate the Huesca Employment Contract against the Player’s will and interests once Mr. Kindberg was certain that Amiens SC would have paid a higher transfer fee to Östersunds FC (see the timeline of the transfer negotiations, infra at para. 162).

G. Calculation of compensation

i. Criteria set out in Article 17.1 RSTP and in CAS jurisprudence

141. As the Player terminated the Huesca Employment Contract without just cause, the Panel must determine what, if any, is the compensation payable to SD Huesca for that breach.

142. Compensation for the unilateral, unjustified termination of an employment contract is calculated pursuant to Article 17.1 RSTP.

143. According to Article 17.1 RSTP: “In all cases, the party in breach shall pay compensation. Subject to the provisions of article 20 and Annexe 4 in relation to training compensation, and unless otherwise provided for in the contract, compensation for the breach shall be calculated with due consideration for the law of the country concerned, the specificity of sport, and any other objective criteria. These criteria shall include, in particular, the remuneration and other benefits due to the player under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, the fees and expenses paid or incurred by the former club (amortised over the term of the contract) and whether the contractual breach falls within a protected period”.

144. As repeatedly confirmed in CAS jurisprudence, the list of criteria set out in Article 17.1 RSTP is illustrative and not exhaustive. Other objective factors can and should be considered, such as the loss of a possible transfer fee and the replacement costs, provided that there exists a logical nexus between the breach and loss claimed (CAS 2010/A/2145, 2146 & 2147, at para. 66; see also CAS 2008/A/1519 & 1520 and CAS 2009/A/1880 & 1881). CAS precedents also indicate that, in the analysis of the relevant criteria, the order by which those criteria are set forth by Article 17.1 RSTP is irrelevant and need not be exactly followed by the judging body

145. The Panel further observes that, according to CAS jurisprudence, it is for the judging authority to carefully assess, on a case by case basis, all the factors and determine how much weight, if any, each of them should carry in calculating compensation under Article 17.1 RSTP (CAS 2008/A/1519 & 1520, at paras. 77 and 89; CAS 2010/A/2145, 2146, & 2147, at paras. 74 and

Östersunds FK Elitfotboll AB v. SD Huesca & FIFA & Saman Ghoddos & Amiens Sporting Club, award of 10 November 2020

86). In particular, CAS precedents indicate that while each of the factors set out in Article 17.1 or in CAS jurisprudence may be relevant, any of them may be decisive on the facts of a particular case (CAS 2009/A/1880 & 1881, at para. 77). According to said CAS case law, while the judging authority has a “wide margin of appreciation” or a “considerable scope of discretion”, it must not set the amount of compensation in a fully arbitrary way, but rather in a fair and comprehensible manner (CAS 2009/A/1880 & 1881, at paras. 76 and 77; CAS 2008/A/1519 & 1520, at paras. 87 and 89). At the same time, as the CAS Code sets forth an adversarial rather than inquisitorial system of arbitral justice, a CAS panel has no duty to analyse and give weight to any specific factor listed in Article 17.1 RSTP or set out in the CAS jurisprudence, if the parties do not actively substantiate their allegations with evidence and arguments based on such factor (CAS 2009/A/1880 & 1881, at para. 78).

146. The Panel also observes that there is an established consensus in CAS jurisprudence that the “positive interest” principle must apply in calculating compensation for an unjustified, unilateral termination of a contract under Article 17.1 RSTP (it has been applied, among other cases, in 2015/A/4046 & 4047). As aptly stated by another CAS panel, “given that the compensation to be granted derives from a breach or unjustified termination of a valid contract, it will be guided in calculating the compensation due by the principle of the so-called “positive interest” or “expectation interest”… [and] accordingly… determin[e] an amount which shall basically put the injured party in the position that the same party would have had if no contractual breach had occurred” (CAS 2009/A/1880 & 1881, at para. 80).

ii. Application of Article 17.1 RSTP

147. In accordance with Article 17.1 RSTP, normally a panel must first take into account any liquidated damages clause, also called penalty clause, contained in the employment contract. In the present case, SD Huesca and the Player did agree to a liquidated damages clause of EUR 40 million (Article 1.3). However, it was “disregarded” by the DRC as disproportionate and SD Huesca did not appeal that decision to the CAS. Therefore, that decision became final and binding and may not be reviewed by the Panel. As a result, even though the Panel believes that the DRC erred in “disregarding” the liquidated damages clause and that it should have, in accordance with Swiss law, reduced the amount to a proportionate level (see Article 163.3 SCO and its application by TAS 2008/A/1491 at paras. 98-101, CAS 2010/A/2202 at para. 28, CAS 2010/A/2317 at para. 28 and CAS 2015/A/4262 & 4264 at paras 138-143), the Panel does not have the power to take into account the liquidated damages clause. Accordingly, the Panel must assess damages based on the other criteria of Article 17.1 RSTP.

148. The Panel observes that the DRC calculated damages to be EUR 4 million because that was the Player’s market value at the time of the breach, as evident from the transfer fee Amiens SC agreed to pay Östersunds FC for the Player.

149. The DRC, however, failed to deduct from that amount the costs that SD Huesca (i) would have incurred in obtaining the Player and (ii) would have saved due to the Player’s departure,

Östersunds FK Elitfotboll AB v. SD Huesca & FIFA & Saman Ghoddos & Amiens Sporting Club, award of 10 November 2020

as it should have done pursuant to CAS jurisprudence (CAS 2008/A/1519-1520, at paras.

150. In particular, the DRC failed to take into account that SD Huesca saved a relevant sum by never paying (i) the transfer fee of EUR 3 million agreed-upon for the transfer of the Player, and (ii) the Player’s salary under the Huesca Employment Contract, which was EUR 600,000 for the 2018-19 season, EUR 300,000 for the 2019-2020 season (due to the club’s relegation), EUR 600,000 for the 2020-2021 season (as SD Huesca has been promoted back to La Liga), and a minimum of EUR 300,000 for the remaining season. Taking both of these heads of cost into account and noting that SD Huesca has not cited any other losses (such as replacement costs), the Panel finds that SD Huesca has not proven that it suffered any damages from the Player’s breach of the Huesca Employment Contract.

151. The Panel thus holds that no damages are to be awarded to SD Huesca under Article 17.1 RSTP.

H. Sanction against the Player

152. On the basis of the foregoing considerations, the Panel concurs with the DRC’s conclusion that the Player breached the employment contract without just cause during the so-called protected period (i.e., for an under-28 player, the first three years of the employment contract). Consequently, the Appealed Decision correctly imposed a sporting sanction on the Player pursuant to Article 17.3 of the RSTP. The Appealed Decision imposed the minimum sporting sanction provided by the rule, that is a suspension of four months on the Player’s eligibility to participate in official matches, and the Panel agrees that this is the appropriate sanction and rejects the Player’s request that the sanction be set aside.

153. In any event, the Panel acknowledges that the Player already served his four-month ban to participate in official matches – as is undisputed among the Parties – and that, therefore, he already complied with the Panel’s decision to confirm the Appealed Decision on this count.

I. Sanction against Östersunds FC

154. According to Article 17.4 RSTP, “[…] sporting sanctions shall be imposed on any club found to be in breach of contract or found to be inducing a breach of contract during the protected period. It shall be presumed, unless established to the contrary, that any club signing a professional who has terminated his contract without just cause has induced that professional to commit a breach […]”.

155. The same provision provides that the sanction for inducement is a registration ban for two entire and consecutive transfer windows: “The club shall be banned from registering any new players, either nationally or internationally, for two entire and consecutive registration periods”.

Östersunds FK Elitfotboll AB v. SD Huesca & FIFA & Saman Ghoddos & Amiens Sporting Club, award of 10 November 2020

156. Östersunds FC argues that it is not subject to an Article 17.4 RSTP sanction because (i) it is not the “new club” and therefore cannot be presumed as having induced the Player to breach the Huesca Employment Contract, and (ii) there is no actual proof of inducement.

157. The Panel recognizes that the Östersunds Employment Contract was never terminated and that the Player never formally de-registered with Östersunds FC or registered with SD Huesca. Nevertheless, the Panel finds that Östersunds FC must be deemed as the “signing club” (i.e. the “club signing a professional who has terminated his contract without just cause”) for the purposes of Article 17.4 RSTP.

158. As consistently held by the CAS, the FIFA rules must be interpreted in a way that reflects their true meaning (ex multis: CAS 2008/A/1673; CAS 2009/A/1810 & 1811; CAS 2017/A/5173). The clear purpose of Article 17.4 RSTP is to ensure contractual stability and ensure that the club behind or abetting a player’s breach of contract within the protected period is punished. With this in mind, the Panel finds that the notion of “signing club” under Article 17.4 RSTP cannot be interpreted restrictively to mean only the club with which the Player first formally signs and registers after his unjustified termination of an employment contract; it must be interpreted more generally as the club which benefits from said termination by having the player at its disposal after the breach.

159. In the present case, it is obvious to the Panel that the benefiting club, having the Player at its disposal after the termination without just cause of the Huesca Employment Contract, was Östersunds FC, given that, after calling the Player back under the Östersunds Employment Contract, it transferred him to Amiens SC to obtain EUR 1 million more than it would have received under the transfer agreement with SD Huesca.

160. The Panel does not consider that CAS 2009/A/1909, CAS 2017/A/5339, or the FIFA DRC Decision no. 59674 dated 15 May 20019 are comparable to the present case. In those cases, the club with the first employment contract did not benefit from the player’s early termination of the second employment contract.

161. As the “signing club” under Article 17.4 RSTP, Östersunds FC is presumed to have induced the Player into breaching the Huesca Employment Contract, and the Panel finds that it failed to rebut this presumption. But even disregarding such presumption, the Panel is persuaded that the evidence on file actually proves that Östersunds FC induced the breach (and Article 17.4 RSTP punishes not only the “new club” or “signing club” but “any club […] found to be inducing a breach of contract during the protected period”, emphasis added). The Panel observes that the Player testified before the DRC that he was pressured into signing the letter “full of lies” (see supra at para. 132), which is fully corroborated by (i) the WhatsApp messages between the Player and his brother (see Annexes 6.1, 6.2, 7.1 and 7.2 to the Player’s witness statement), (ii) the Player’s text conversation with Mr. Kindberg in which he declares that he was happy to sign with SD Huesca and to play in La Liga (see supra at para. 20), (iii) Mr. Kindberg’s message to the Player that he should sign the Termination Letter (see p. 9 of Annex 3 to the Player’s

Östersunds FK Elitfotboll AB v. SD Huesca & FIFA & Saman Ghoddos & Amiens Sporting Club, award of 10 November 2020

witness statement), and (iv) the fact that Östersunds FC had a clear interest in transferring the Player to Amiens SC for a higher price than that agreed with SD Huesca.

162. Moreover, in conjunction with the above, the timeline of the events (based on the evidence on file) confirms that Östersunds induced the Player to terminate the Huesca Employment Contract, because the Swedish club already knew that Amiens SC was going to pay a higher transfer fee. Indeed, the Panel observes that:

– on 20 July 2018, Amiens SC wrote a letter to Östersunds FC, entitled Official Transfer Offer, “to express AMIENS interest in a permanent transfer of the registration of Saman GHODDOS”, with a draft contract proposing a “fixed transfer fee” of EUR 3,500,000, some “contingent transfer fees” depending on some individual achievements by the Player and some team achievements by Amiens SC, and a “sell-on fee” of 10% in case of a transfer to a third club;

– after some negotiations between the French club and the Swedish club, on 31 July 2018, Amiens SC sent to Östersunds FC another Official Transfer Offer, confirming “AMIENS interest in a permanent transfer of the registration of Saman GHODDOS” and including another draft contract with slightly modified terms;

– after further negotiations, on 1 August 2018, Amiens SC sent a third Official Transfer Offer to Östersunds FC, providing for an initial loan (for a fee of EUR 2 million) and a subsequent permanent transfer (for an additional fee of EUR 2 million), besides the usual contingent fees and sell-on fee;

– on 7 August 2018, Östersunds FC, by indicating by email that the “offer is ok”, accepted SD Huesca’s proposal of the same day to transfer the Player for a fixed transfer fee of EUR 3 million and a sell-on fee of 20%;

– on the exact same day, the Player travelled to Huesca and, during his travel, was informed of the aforementioned acceptance email (see supra at para. 136);

– the next morning of 8 August 2018, the Player met with SD Huesca and signed the Huesca Employment Contract, with which he was happy (see e.g. supra at para. 19).

– on 9 August 2018, Östersunds FC received an official offer for the Player from Amiens SC for EUR 4 million for a permanent transfer, i.e. EUR 1 million more than what was agreed with SD Huesca, besides the contingent and sell-on fees (see supra at para. 29).

– on 18 August 2018, the Player sent to SD Huesca the Termination Letter (which, as previously mentioned, he has admitted in the witness statement of 6 March 2019 not to reflect his true will and to have been signed “under immense pressure” exerted on him

Östersunds FK Elitfotboll AB v. SD Huesca & FIFA & Saman Ghoddos & Amiens Sporting Club, award of 10 November 2020

by Östersunds FC and having “no personal interest in signing the Letter [as he] was very happy with such a transfer”).

– on 21 August 2018, Amiens SC sent an amended final offer which was accepted by Östersunds FC and yielded the definitive transfer of the Player to the French club (in this regard, the Panel notes that this final Amiens SC’s offer was built over time since the end of July and that, in particular, Amiens SC’s offer of 9 August 2018 was already (i) very close to the final offer and (ii) substantially more rewarding than SD Huesca’s offer of 7 August 2018).

163. Östersunds FC also claims that, in any case, it would be unreasonable to impose automatic sanctions under Article 17.4 RSTP because it acted in good faith and in line with its rights and obligations at all times. The Panel finds, however, that Östersunds FC did not act in good faith as it so claims. As previously mentioned, Östersunds FC pressured the Player into terminating the Huesca Employment Contract in order to sell his rights for a higher profit to Amiens SC. Moreover, the Panel finds that Östersunds FC did not “act within its rights”. In the Panel’s view, Östersunds FC had no right to impede the Player from fulfilling the Huesca Employment Contract and to force him to first come back to Östersunds FC and then move to another club, since it had already entered into a valid transfer agreement with SD Huesca. In this respect, the Östersunds FC’s reference to Swedish employment law is irrelevant; as stated supra at para. 87, the applicable law are the FIFA regulations and Swiss law.

164. In light of the above, and considering the breach indisputably occurred within the protected period, the Panel upholds the sanction imposed on Östersunds FC by the FIFA DRC. Accordingly, Östersunds FC shall be banned from registering any new players for two entire and consecutive transfer windows.

J. Further or different motions

165. All further or different motions or requests of the Parties are rejected.

Östersunds FK Elitfotboll AB v. SD Huesca & FIFA & Saman Ghoddos & Amiens Sporting Club, award of 10 November 2020