Nashat Akram v. Dalian Aerbin FC

II. THE FACTUAL BACKGROUND

3. This matter is related to an appeal filed by the Player against the decision rendered by the FIFA Dispute Resolution Chamber (the “FIFA DRC”) on 27 November 2014 (the “Appealed Decision”). The grounds of the Appealed Decision were notified to the Parties on 26 March 2015.

4. Below is a summary of the main relevant facts and allegations based on the Parties’ written submissions and relevant documentation produced. Additional facts and allegations may be set out, where relevant, in connection with the further legal discussion. While the Panel has considered all the facts, allegations, legal arguments and evidence submitted by the Parties in the present proceedings, it refers in this award only to the submissions and evidence it considers necessary to explain its reasoning.

A. The contractual relationship between the Parties

a) The negotiations between the Parties

5. By letter dated 24 January 2014 (the “Offer”), Aerbin offered to sign the Player on the following terms and conditions:

a) Contract length: 2 years (2014 – 2015 season of Chinese Super League)

b) Sign-on Fee: USD 200,000 net

c) Wage: USD 900,000 net for 2014 season

USD 900,000 net for 2015 season

d) Bonus: USD 2,000 for each win, USD 1,000 for each draw

USD 50,000 for the team finishing Top 3 of Chinese Super League

USD 100,000 for the team winning Champion of Chinese Super League

e) Flight: 3 Business Class round-trip tickets from Iraq to China each year

f) Accommodation: RMB 4,000 Yuan per month as apartment subsidy.

6. On 25 January 2014, the Player wrote to Aerbin accepting the Offer. He then flew to China together with his intermediary, Mr. Dezhbod (the “Intermediary”), with a view to undergo a medical examination and then transforming the Offer into a formal employment contract.

b) The Employment Contract and the Image Rights Agreement

7. The Appellant claims that during a meeting held on 10 February 2014, attended by him, the Intermediary, and representatives of Aerbin, Aerbin informed the Player that for tax purposes, it was ideal for the Parties to split the financial terms and conditions contained in the Offer into two separate contracts.

8. Consequently, on 10 February 2014, two contracts were signed. The first contract was entitled “Employment Contract for Players” (the “Employment Contract”) and was entered into between the Player and Aerbin. The second contract was entitled “Personal Portrait Right Agreement” (the “Image Rights Agreement”) and was entered into between the Player, Aerbin, and Aerbin (Hong Kong) Investment Limited (“Aerbin HK”). The Employment Contract and the Image Rights Agreement (collectively, the “Contracts”) had a duration of two seasons, starting on 2 February 2014 and expiring on 31 December 2015.

9. The relevant parts of the Employment Contract provided as follows: Clause 3 Living and Working Conditions & Health Protection. 1. [Aerbin] (…) shall provide [the Player] with clean, healthy, comfortable and convenient accommodation (…). Clause 5 Use of Portrait Right

• [The Player] has its own portrait right. [Aerbin] must not use [the Player’s] portrait for profit purpose without [the Player’s] prior consent.

• [The Player] agrees that [Aerbin] and China Football Association Super League Committee use [the Player’s] portrait for free in social public welfare activities or in the promotional activities of [the Player] and China Football Association Super League Committee, and [the Player] shall cooperate with them.

• [The Player] agrees that [Aerbin] uses [the Player’s] portrait for free in the advertisement promotion provided to sponsors.

(…)

• [The Player] agrees that [Aerbin] uses [the Player’s] portrait upon consideration for othe r commercial advertisements and [the Player] shall receive 50 % of the advertisement earnings.

• [The Player] must not use its own portrait for advertisements and promotions without [Aerbin’s] approval and [the Player] shall turn in 50 % of the income to [Aerbin]. (…) Clause 6 Salary and Bonuses (…) 2. During the contract period, [Aerbin] shall pay [the Player] US Dollars 800,000 net as total salary and the whole amount shall be paid average-monthly (from February to November each year, US Dollars 40,000 net per month). (…) 7. The salary distribution date is before 28 days of next month, and the work first pay later system is adopted. (…) Clause 9 Cancellation of the Contract (…) 3. The Contract may be canceled by [the Player] by notifying [Aerbin] (…) (2) If [Aerbin] is behind in payment of salary to [the Player] for over three months.

10. The relevant parts of the Image Rights Agreement stated as follows: 2. [Aerbin HK] agrees to pay [the Player] the Personal Portrait Right Fee total US Dollars 1,200,000 net. The specific time and amount of payment are as follows: - Party C shall pay [the Player] US Dollars 400,000 net within 15 working days after three parties have signed this agreement. During the contract period, [Aerbin HK] shall pay [the Player] US D ollars 800,000 net and the whole amount shall be paid average-monthly) from February to December each year, US Dollars 40,000 net per month), the distribution date is before 28 days of next month. (…) 4. This Agreement will be legally binding after signing-on. [Aerbin], [the Player] and [Aerbin HK] shall be strict compliance with each others. If [Aerbin HK] does not pay [the Player] the Personal Portrait Right Fee according to the time and amount of this Agreement, [Aerbin] shall take the full responsibility. The specific date of above payments shall comply with the current Foreign Exchange Management System of China. (…) 7. This Agreement will become effective on the date it is signed and stamped by all parties.

c) The dispute between the Parties

11. On 13 March 2014, the Intermediary wrote to Aerbin regarding the non-payment of the signingon fee of USD 400,000 under the Image Rights Agreement and requested Aerbin to pay the outstanding amount as soon as possible.

12. On 18 April 2014, the Player received USD 40,000, which is assumed to be the February salary arising from the Employment Contract.

13. On 22 April 2014, the Player placed Aerbin on notice and requested the payment of “the signing fee (…) [that] shall be paid 15 days after signing the contract” as well as his salary, without specifying which ‘salary’.

14. On 23 April 2014, Aerbin wrote to the Player asking him to be patient and informed him that the remuneration claimed in his letter dated 22 April 2014 would be paid by 2 May 2014.

15. On 7 May 2014, a representative of Aerbin sent another e-mail informing the Player that “[he] checked financial department yesterday but got nothing with the sign-on fee” and that “[the Respondent] cannot settle all these now except [his] salary”. In this regard, the representative specifies that “they will pay [his] outstanding salary and personal portrait fee in these couple of days” adding that “Everything depends on the attitude of our president”.

16. On 8 May 2014, the Player put Aerbin in default again giving the latter a deadline until 15 May 2014 to pay half of the signing-on fee and until 30 May 2014 to comply with the rest of its obligations, “otherwise case will be submitted the case to fifa by 1.6.2014”.

17. On the same day, the Player received USD 40,000 from Aerbin HK. Although this amount was not specified, the Player assumed this payment was part of the remuneration arising from the Image Rights Agreement based on his claim in front of FIFA (cf. paragraph 23).

18. On 31 May 2014, the Player terminated the contractual relationship with Aerbin by stating as follows:

“Respectfully I would like to inform you that despite of my several notices by fax, email and sms regarding to Nashat Akram payment we have not respond from the club at all. According to the Club and the Player’s contract the club has breaching the contract as the club hasnt paid salaries and signing fee for over 90 days, therefore, we are asking to breaking the contract accordingly”.

19. On 7 June 2014, the Intermediary re-affirmed, by letter to Aerbin, that “the player is entitle to break the contract as unpaid payment from the club”.

20. On various occasions, i.e. on 24 June, 30 June and 12 July 2014, Aerbin wrote to the Player requesting him to report for duty and informed him of the fines that would be imposed on him for each day of delay. In these letters, Aerbin asserted that the Player only took part in three games because of a concealed serious injury, which constituted a reason to terminate the Employment Contract based on its provisions.

21. On 16 June 2014 and on 1 July 2014 respectively, Aerbin paid an amount of USD 40,000 to the Player.

22. On 23 August 2014, the Player and the Iraqi club Al Shorta Football Club (“Al Shorta”) concluded an employment contract valid as of 15 August 2014 until the end of the 2014-15 football season, according to which the Player was entitled to a total remuneration of IQD 550,000,000 (approx. USD 465,000 on 23 August 2014).

B. The FIFA Dispute Resolution Chamber Proceedings

23. On 28 May 2014, the Player lodged a claim before FIFA against Aerbin requesting FIFA to hold that “the player has right to cancel his contract as the Respondent hasn’t paid his salary for last 3 months” and to be awarded USD 640,000 as outstanding remuneration, broken down as follows:

a) USD 120,000 corresponding to three monthly salaries of March, April and May 2014 due in accordance with the Employment Contract;

b) USD 120,000 corresponding to three monthly instalments of March, April and May 2014 dues in accordance with the Image Rights Agreement; and

c) USD 400,000 corresponding to the lump sum due “within 15 working days after three parties have signed this agreement”, as per the Image Rights Agreement.

24. In his claim, the Player explains that he left Aerbin on 25 May 2014 after the latter released him for the half season break. In addition, the Player asserts that prior to signing the Employment Contract, he successfully passed a medical examination.

25. On 15 July 2014, Aerbin replied to the claim and lodged a counterclaim against the Player, requesting to be awarded with the amount of USD 5,000,000 as “loss compensation”. In this regard, Aerbin explains that “the [Appellant] non-professional behaviour has already caused serious damage to the interest and reputation of the Respondent” and “seriously affected the normal training of our First Team”.

26. In its counterclaim, Aerbin sustains that the salaries for February, March and April 2014 were paid to the Player. In support of its assertion, Aerbin submitted an excel sheet drafted by its own administration according to which three payments: two equal payments of CNY 244,000 (approx. USD 39,500) and a third payment of CNY 243,516 (approx. USD 39,400). These payments were made on 28 March, 28 April and 28 May respectively.

27. In continuation, Aerbin argued that the Player has been absent from training since 26 May 2014, i.e. almost 7 weeks, which constitutes a breach of contract. In this respect, Aerbin outlines the various requests that were made to the Player (cf. see paragraph 20).

28. In his reply, the Player stated that the documents provided by Aerbin only evidence that one payment was made before the termination of the Employment Contract, i.e. the payment made on 18 April 2014. The other two were made after the termination and therefore do not have any influence on the Player’s just cause to terminate the Employment Contract.

29. In light of the foregoing, the Player amended his claim and requested:

a) USD 560,000 as outstanding remuneration, broken down as follows:

b) USD 40,000 corresponding to the salary for May 2014 due in accordance with the Contract; and

c) USD 120,000 corresponding to the instalments for March, April and May 2014 due in accordance with the Image Rights Agreement; and

d) USD 400,000 corresponding to the signing-on fee due in accordance with the Image Rights Agreement.

e) USD 2,000,000 as compensation for the Player’s loss of a chance of playing and earning money as well as the damage to his reputation.

30. On 27 November 2014, the FIFA Dispute Resolution Chamber rendered the Appealed Decision and held as follows:

1. The claim of the Claimant / Counter-Respondent, Nashat Akram, is rejected.

2. The counterclaim of the Respondent / Counter-Claimant, Dalian Aerbin FC, is partially accepted.

3. The Claimant / Counter-Respondent is ordered to pay to the Respondent / Counter-Claimant within 30 days as from the date of notification of this decision, compensation for breach of contract in the amount of USD 690,000.

4. The intervening party, Al Shorta, is jointly and severally liable for the payment of the aforementioned compensation.

5. In the event that the amount due to the Respondent / Counter-Claimant in accordance with the abovementioned point 3 is not paid by the Claimant / Counter-Respondent within the stated time limit, interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned time limit and the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decisio n.

6. The Respondent / Counter-Claimant is directed to inform the Claimant / Counter-Respondent and the intervening party immediately and directly of the account number to which the remittance is to be made and to notify the Dispute Resolution Chamber of every payment received.

7. Any further claim lodged by the Respondent / Counter-Claimant is rejected.

31. The Appealed Decision was based on the following grounds:

a) The FIFA DRC in this particular case had no jurisdiction to entertain matters regarding the Image Rights Agreement because contrary to Article 22 (b) of the FIFA Regulations on the Status and Transfer of Players (“FIFA RSTP”), the said agreement did not contain any employment related elements;

b) The Player terminated the Employment Contract when he was only owed his March and April 2014 salaries. Non-payment of two months salaries is not a just cause for termination;

c) Compensation for breach of contract is assessed on a case by case basis. Article 17.1 of the FIFA RSTP allows the FIFA DRC to consider the old and the new contract in striving to arrive at the economic value attributed to a player. The value remaining under the Player´s contract with Aerbin as at 30 May 2014 (i.e. the date of termination) was USD 680,000. On the other hand, the Player would have earned USD 700,000 had he stayed with Al Shorta until 31 December 2015 (the date his Employment Contract with Aerbin would have expired). Consequently, the Player was to compensate Aerbin with the average remuneration between the values due or remaining under his old and new contracts respectively, i.e. USD 690,000; and

d) Pursuant to Article 17.2 of the FIFA RSTP, Al Shorta was jointly and severally liable as the new club regardless of whether or not it had induced the Player’s breach.

III. THE PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT

32. The Appellant filed its Statement of Appeal dated 14 April 2015 before the Court of Arbitration for Sport (the “CAS”), pursuant to article R48 of the Code of Sports-related Arbitration (edition 2013) (“CAS Code”). The CAS acknowledged receipt of the Statement of Appeal on 16 April 2015.

33. The Appellant appointed Mr. Manfred Nan, Attorney-at-law in Arnhem, The Netherlands, as arbitrator.

34. On 21 April 2015, the CAS Court Office sent a letter to Al Shorta with an invitation to join these proceedings as a party.

35. On 22 April 2015, Al Shorta replied to the invitation as follows: “With many respect give our professional player (NASHAT AKRAM ABID ALI ESSA) clearance to go to any club the player want according to his request”.

36. On 23 April 2015, the CAS acknowledged receipt of the letter from Al Shorta. The CAS stated that the context of the letter was unclear and that the CAS Court Office was not sure whether Al Shorta wished to participate in this appeal. Follow-up correspondence was sent by the CAS Court Office to Al Shorta inviting it to participate in the procedure. Al Shorta did not answer those letters.

37. On 24 April 2015, the Appellant filed his Appeal Brief together with documents and evidence it intended to rely on.

38. On 4 May 2015, the CAS Court Office informed the Parties that Al Shorta did not reply on the invitation to join the proceedings. Therefore, the CAS Court Office informed the Parties that it was presumed that it was not interested in participating.

39. On 22 May 2015, the Respondent filed its Answer together with exhibits it intended to rely on. The Respondent did not appoint an arbitrator within the time limit, and therefore the President of the Division appointed Mr. Kok-Keng Lau, attorney-at-law in Singapore, the Republic of Singapore, as arbitrator in lieu of the Respondent’s appointment.

40. On 26 May 2015, the CAS Court Office invited the Parties to state whether they wanted a hearing or preferred to have the matter decided on the basis of their written submissions.

41. On 16 June 2014, the CAS Court Office informed the Parties that, pursuant to Article R54 of the CAS Code and on behalf of the President of the CAS Appeals Arbitration Division, the Panel had been constituted as follows:

President: Mr. Rui Botica Santos, Attorney-at-law, Lisbon, Portugal

Arbitrators: Mr. Manfred Nan, Attorney-at-law, Arnhem, The Netherlands and Mr. Kok-Keng Lau, Attorney-at-law, Singapore, the Republic of Singapore

42. On 20 July 2015, the CAS Court Office issued an Order of Procedure, which was duly signed by both Parties (24 July 2015 by the Appellant; 27 July 2015 by the Respondent).

43. On 15 September 2015, a hearing was held at the CAS Alternative Hearing Centre in Shanghai, China. At the outset of the hearing, both Parties confirmed that they had no objection to the composition of the Panel.

44. At the hearing, the Panel was assisted by Mr. Brent J. Nowicki, Counsel to the CAS. In addition, the following persons (including witnesses) attended the hearing:

For the Appellant

• Mr. J.G. Kabalt (counsel) (in-person)

• Mr. P.M. Hoogstad (counsel) (in-person)

• Mr. Nashat Akram (Player) (by video or telephone conference)

• Mr. Dezhbod (Intermediary) (by video or telephone conference)

For the Respondent

• Ms. Liz Ellen (counsel) (in-person)

• Mr. Adam Lewis QC (counsel) (in-person)

• Mr. Lv Feng (Club Manager) (in-person)

• Mr. Gao Xiang (Assistant of Club Manager) (in-person)

45. At the end of the hearing, the Parties stated that they were satisfied with the manner in which the hearing had been conducted and that their right to be heard had been respected.

IV. THE PARTIES’ RESPECTIVE POSITIONS

46. The following outline is a summary of the main arguments of the Appellant and the Respondent and does not comprise each and every contention put forward by the Parties. However, the Panel has carefully considered all the submissions made by the Appellant a nd the Respondent, even if no explicit reference has been made in what follows. The Parties’ written submissions, the documentary evidence, the content of the Appealed Decision and the oral submissions at the hearing were all taken into consideration. The witness testimonies were also taken into consideration and such reference will be made in the merits section, if and when appropriate.

A. The Appellant’s submissions

47. It is the Appellant’s position that he terminated the employment relationship with just cause. As there is a link between the Employment Contract and the Image Rights Agreement, the delayed payment of salary by Aerbin should be considered as a justifiable reason for termination of both contracts with just cause.

48. The Appellant’s submissions can in essence be summarized as follows:

a) The link between the Employment Contract and the Image Rights Agreement

aa) The contractual relationship between the Parties started with signing the Offer. Until the meeting on 10 February 2014, the Respondent never mentioned any division concerning the payment obligation of Aerbin towards the Player, neither about any separation between ‘salary’ and ‘Image Rights Fee’. During the meeting, the representatives of Aerbin emphasised that the separation was only a formal, political separation that was necessary for tax reasons. The representatives assured the Player that Aerbin would remain responsible at all times for the payment of the total remuneration of USD 2,000,000 to the Player in two years (as was agreed in the Offer).

ab) The Employment Contract and the Image Rights Agreement have the same term (from 10 February 2014 until 31 December 2015), were signed by the Parties at the same time and by the same persons (the Player and Aerbin´s representative, Mr. Shangbin).

ac) The link between the two Contracts arises also from the clauses 3 and 4 of the Image Rights Agreement:

Clause 3 stipulates that: “If [the Player] is personally punished for serious breach of law, serious breach of discipline or serious violation of social ethics and suspended over one month by FIFA, AFC or CFA, the fine will be borne by [the Player], meanwhile [Aerbin] can determine additional fine within the range of 50% maximum of the monthly Personal Portrait Right Fee”.

Clause 4 stipulates that: “This Agreement will be legally binding after signing-on. [Aerbin], [the Player] and [Aerbin HK] shall be strict compliance with each others. If [Aerbin HK] does not pay [the Player] the Personal Portrait Right Fee according to the time and amount of this Agreement, [Aerbin] shall take the full responsibility. The specific date of above payments shall comply with the current Foreign Exchange Management System of China”.

ad) Since it is common in professional football that a club can fine a player for improper behaviour, and that the imposition of the fine usually takes place by withholding sums which would otherwise be due to the player from his salary, the monthly Personal Portrait Right Fee referred to in Clause 3 of the Image Rights Agreement should be considered to be (disguised) salary. Furthermore, the connectedness and effective responsibility (clause 4) is confirmed by the e-mail from Aerbin to the Player of 7 May 2014 in which Aerbin recognizes the indebtedness of the salary, the signing-on fee and the Image Rights Fee.

ae) Furthermore, in that same e-mail dated 7 May 2014, a representative of Aerbin informed the Player that: “[he] checked financial department yesterday but got nothing with the sign-on fee”, as a result of which only the salary of the Player could be paid. Apparently, Aerbin had to receive the signing-on fee (USD 400,000) from a third party first, before paying it to the Player himself. Since contractually the signing-on fee had to be paid by Aerbin HK, not only was the indebtedness of the signing-on fee by Aerbin to the Player recognised by this e-mail, it also confirmed that the obligation to pay the signing-on fee, which arises from the Image Rights Agreement and not from the Employment Contract, is on Aerbin itself instead of Aerbin HK.

af) That the Image Rights Fee has to be considered as disguised salary, is also emphasized by the fact that Aerbin HK did arguably nothing with the agreed right to the image of the Player from 10 February 2014 to 31 December 2015.The Image Rights Agreement of the Player seems to be an empty shell, since the Parties agreed in clause 5 of the Employment Contract that the Player was not free to use his own image for advertisement and promotions without Aerbin’s approval and upon payment of 50% of his income to Aerbin. On the basis of the latter, the Player had to pay 50% of the agreed Image Rights Fee (USD 1,200,000 net) to Aerbin while Aerbin declared itself responsible to pay this full Image Rights Fee to the Player ex. clause 4 of the Image Rights Agreement and the e-mail of 7 May 2014.

ag) The Image Rights Agreement is a bogus contract and does create rights or obligations for Aerbin and does contain employment-related elements. It has the appearance that the construction with the Employment Contract linked to the Image Rights Agreement is only conceived by Aerbin to evade payment of certain (wage) taxes and contributions and has nothing to do with exploiting image or portrait rights. The Image Rights Agreement is directly linked to the services of the Player as a player and it was meant to be part of the actual employment relationship.

b) Termination of the employment contract with just cause

ba) Aerbin stated before the FIFA DRC that it paid the salary of the months February, March and April 2014. The Appellant received on both 16 June 2014 and on 1 July 2014 around USD 40,000 respectively from Aerbin.

bb) On 31 May (the date on which the Appellant terminated the Employment Contract) an amount of USD 600,000 net was outstanding, containing:- Salary: March and April (USD 40,000 + USD 40,000)

• Image Rights Fees: February, March and April (USD 40,000 + USD 40,000 + USD 40,000)

• Signing-on fee arising from the Image Rights Agreement: USD 400,000

bc) Since the Appellant terminated the Employment Contract with just cause, he was a free agent (31 May 2014). Therefore, as he was a free agent, the Appellant cannot be held liable to pay to Aerbin any compensation.

bd) The Appellant furthermore always behaved as a professional and always showed up at training sessions and treatments with the medical staff. There is no evidence which demonstrates a lack of professionalism towards the first team training sessions.

c) The Appellant is entitled to compensation

ca) The Appellant states that the Respondent is liable to pay compensation for damages suffered by the Player as a consequence of the breach of contract (the persistent nonpayment) within the protected period.

cb) Primary, the Appellant is entitled to receive his full salary for the months of February, March and May 2014, next to the signing-on fee. Besides, Aerbin is obliged to fulfil all agreed financial conditions of the employment relationship until the 31st of December 2015, the remaining period of the employment relationship. This leads to an amount of USD 1,938,350 net, consisting of:

The 2014 season:

• salary USD 680,000 - signing-on fee USD 400,000

• airline tickets USD 20,000

• apartment subsidy USD 4,550

• match winning bonuses USD 6,000 The 2015 season:

• salary USD 800,000

• airline tickets USD 20,000

• apartment subsidy USD 7,800

• Interest P.M.

cd) Subsidiarily, in case the Panel would consider that there is no link between the Employment Contract and the Image Rights Agreement, the Image Rights Agreement does not create any rights or obligations for Aerbin and does not contain any employment-related elements, the Player is still entitled to receive the full Image Rights Fee from Aerbin ex clause 2 of the Image Rights Agreement. Since the Player never received any Image Rights payment from Aerbin HK, Aerbin is jointly and severally liable for payment of those amounts. The Appellant claims subsidiarily an amount of USD 1,200,000 net, consisting of:

The 2014 season:

• salary USD 400,000

• signing-on fee USD 400,000 The 2015 season:

• salary USD 400,000

• Interest P.M.

ce) Furthermore, Panel should sanction Aerbin in accordance with article 17 paragraph 4 FIFA Regulations on the Status and Transfer of Players (“FIFA RSTP”) and ban Aerbin from registering new players, either nationally or internationally, for two registration periods. In case the Panel does not have the power to do so, the Panel should refer the case back to the FIFA DRC.

cf) Lastly, the Appellant submits that Al Shorta did not induce the Player to his termination, since the interest of Al Shorta in the Player dates back to about the middle of August and the Player did not terminate the employment relationship without just cause.

49. The Appellant concludes its submissions by requesting the CAS:

1. To accept the present appeal against the challenged decision; 2. To set aside the challenged decision; 3. To establish that Aerbin breached the employment contract with Akram without just cause during the protected period; 4. To establish that Akram validly unilaterally terminated the employment contract with Aerbin wi th just cause; 5. To condemn Aerbin primary to pay to Akram compensation in the amount of USD 1.938.350,00 plus 5% interest as from 31 May 2014 until the effective date of payment; 6. To condemn Aerbin subsidiary to pay to Akram compensation in the amount of USD 1.200.000,00 plus 5% interest as from 31 May 2014 until the effective date of payment;

7. To impose sporting sanctions on Aerbin or alternatively to send the case back to the FIFA Dispute Resolution Chamber for imposing sporting sanctions on Aerbin; 8. To condemn Aerbin to the payment in favour of Akram of the legal expenses incurred; 9. To establish that the costs of the arbitration procedure shall be borne by Aerbin.

B. The Respondent’s submissions

50. It is the Respondent’s submission that the Employment Contract and the Image Rights Agreement were separate agreements providing for different things and with different parties (so far as the primary obligation to pay is concerned). The Image Rights Agreement was not part of the Employment Contract. It did not contain rights or obligations typical to employment contracts.

51. The Respondent’s submissions can in essence be summarized as follows:

a) The CAS jurisdiction

aa) The FIFA DRC only considered the claim in relation to the Employment Contract because the FIFA DRC did not have jurisdiction over the Image Rights Agreement. According to the Respondent, the CAS lacks such jurisdiction as well. This is because the primary party holding the benefit and burden of the Image Rights Agreement, besides the Appellant, is a third party, namely Aerbin HK. Aerbin HK is not subject to an arbitration agreement providing either FIFA or CAS with jurisdiction to consider disputes relating to the Image Rights Agreement. Aerbin HK is not a party to the Employment Contract. The FIFA DRC held that it did not have jurisdiction to consider the part of the claim relating to non-payment under the Image Rights Agreement.

ab) If the CAS agrees with the FIFA DRC and/or with the Respondent’s submissions on this point that the Image Rights Agreement is a separate agreement, then it has no jurisdiction to consider the Appellant’s claim for monies under that agreement. The Image Rights Agreement does not contain an arbitration clause providing FIFA (and thus CAS) with jurisdiction to consider disputes, whereas the Employment Contract does (clause 12.3). If there is a breach of the Image Rights Agreement, the Appellant has a remedy in the national courts, but not before either domestic or international football arbitral tribunals, and the Defendant in such proceedings would be, primarily at least, Aerbin HK.

b) The payment of the salary and the termination

ba) Under the terms of the Employment Contract, the Appellant was not permitted to terminate the Employment Contract for non-payment of salary on 30 May 2014. None of his March, April or May salaries could have been 3 months late on that date. The Respondent paid his March salary before 28 June 2014. The Appellant would have only

been entitled to terminate the Employment Contract under clause 9.3 (2) after 28 September 2014 in respect of the May salary, to the extent it had not been paid by that date.

bb) The separate Image Rights Agreement is an agreement primarily between the Appellant and Aerbin HK. While the Respondent is a party to the Image Rights Agreement and has some rights and obligations, it is a minor party. The obligation to pay the fee falls still on Aerbin HK, and all the Image Rights Agreement adds is that the Respondent shall take responsibility for Aerbin HK’s failure to meet the legal obligation on it.

bc) Clause 3 of the Image Rights Agreement does provide a right to the Respondent – however only a right in respect of the rights and obligations in the Image Rights Agreement, not any rights with respect to the Employment Contract. This clause 3 contrasts similar provisions in the Employment Contract.

bd) The sums payable under the Image Rights Agreement were not “disguised salary” and should not be treated as salary for the purposes of the claim. The written contracts between the Parties should not be disregarded. Where there is evidence of a written agreement, the presumption is that this reflects the actual agreement between the Parties. If the Appellant seeks to go behind the actual terms of the written agreements, the burden is on him to prove some other agreement. That burden on him can only be met by “compelling evidence” (CAS 2013/A/3091). Whatever the Parties may or may not have agreed before they entered the written agreements, the written agreements superseded their previous oral agreements or negotiations, and the written agreements governed the employment relationship.

c) The Image Rights Agreement is not part of the Employment Contract

ca) The FIFA DRC was right not to consider any claim under the Image Rights Agreement. This is consistent with the jurisprudence of the FIFA DRC (C. v. A, decision dated 13 December 2013 and A. v. O, dated 17 January 2014). There are no provisions in the Image Rights Agreement which one would normally regard as more typical of an employment contract. The amounts paid for the Appellant’s Image Right is not described as ‘salary’ and there is a clear distinction in both, the express language, obligation and indeed the parties.

cb) The Image Rights Agreement is not part of the Employment Contract, considering the following aspects:

• The fact that the agreements are both of the same term is not extraordinary. An Image Rights Agreement with a football club will normally be for the same term as the employment contract with it.

• The main contracting party to the Image Rights Agreement is Aerbin HK, which is a separate legal entity and is not a party to the Employment Contract.

• The fact that the Respondent can impose a fine equal to an amount of the 50% of the monthly fee paid under the Image Rights Agreement if the Appellant is suspended for serious misconduct by the football authorities for over a month does not suggest that the Image Rights Agreement is part of the Employment Contract. The fine is intended to reflect the value of the Appellant’s image in such circumstances.

• The fact that the Respondent has responsibility if Aerbin HK does not meet its obligations under the Image Rights Agreement does not mean the Employment Contracts are not separate contracts containing distinct obligations.

d) The Appellant did not terminate the Employment Contract with just cause

da) Article 14 of the FIFA RSTP does not provide that a player may terminate a contract for just cause if he has not been paid more than two monthly salaries. On the contrary, FIFA’s Commentary on the RSTP makes clear that just cause must be determined on a case-bycase, but that the non-payment for over 3 months is likely to allow a player to terminate, whereas “under normal circumstances, only a few weeks’ delay in paying a salary would not justify the termination of an employment contract”. In CAS 2006/A/1180 the CAS held that non-payment of salary can amount to just cause, but only provided that the non-payment is of a substantial amount and there have been adequate warnings of breach. Different jurisprudence shows that FIFA and CAS are particularly careful to determine that the breach is substantial on the facts before determining it entitles the player to terminate for just cause under article 14 FIFA RSTP.

db) If the Appellant is unable to meet the heavy burden on him to prove payments under the Image Rights Agreement were actually part of his salary, he is unable to meet the threshold entitling him to justify his termination of the Employment Contract under the article 14 FIFA RSTP jurisprudence.

dc) The Appellant requests the CAS imposes sporting sanctions on the Respondent pursuant to article 17.4 of the FIFA RSTP. The Appellant failed to set out any basis upon which he is suggesting that the CAS has jurisdiction to impose such a ban. In any event, the Respondent denies that imposing sporting sanctions on the Respondent would be appropriate in the circumstances.

e) Al Shorta induced the Player to terminate the Employment Contract

ea) The Appellant’s new club, Al Shorta, induced the Appellant to terminate the Employment Contract for the following reasons:

• Al Shorta has not appealed the decision of the FIFA DRC, despite being a party subject to that decision.

• The Appeal brief is submitted for and on behalf of the Appellant and not Al Shorta. It is a peculiar submission to be made on behalf of the Appellant that Al Shorta ought not to be liable for his breach.

• The FIFA DRC made expressly clear that their decision “is independent from the question as to whether the new club has induced the contractual breach” but is based on the well-established jurisprudence of the FIFA DRC and of CAS (i.e. strict liability).

• It is not apparent from the decision of the FIFA DRC that Al Shorta has been subject to any sporting sanctions in any event, and, as set out above, there is no appeal by it on this matter.

52. The Respondent concludes his submissions by requesting the CAS:

1. To dismiss the appeal;

2. To order that the Appellant shall pay the amount of compensation and interest ordered by the FIFA DRC to the Respondent forthwith;

3. To order that the Appellant shall pay the Respondent its costs of this arbitration pursuant to R.64.5 of the CAS Rules.