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    CAS 2021 A 8306 Vegalta Sendai v. CSKA Moscow & FIFA

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    TAS / CAS Tribunal Arbitral du Sport Court of Arbitration for Sport Tribunal Arbitral del Deporte ARBITRAL AWARD Vegalta Sendai, Send, opan PFC CSKA Moscow, Moscow, Rusia & Fédération Internationale de Foothall Association, Zich, Switzerland (CAS 2021/4/8306- Lawsanne, May 2022 Gio TAS/cas OO rasunaL ansiTRal ou SPOR ANNAN] COURT OF AzaaATON Fon sport TRIBUNAL ARBITRAL DEL DEPORTE (CAS 2021/4/8306 Vegalta Sendai v. PFC CSKA Moscow & FIFA ARBITRAL AWARD delivered by the COURT OF ARBITRATION FOR SPORT. sitting inthe following composition: Sole Arbitrator: Mr Lars Hilliger, Atomey-t-Lavs, Copenhagen, Denmars in the arbitration between Vegata Sendai, Sends, Japan Represented by Mr Gorka Villar, Attomey-at-Law, Madeid, Spain PRC CSKA Moscow, Moscow, Russia Represented by Mr Denis Postnoy, Legal Counsel, Moscow, Russia First Respondent and 2/ Fédération Internationale de Football Association, Zurich, Switzerland Represented by Mr Miguel Lidtand Femndez-Palacios, Director of Litigation, (Cristina Pérez Gonzilez, Senior Legal Counsel and by Ms Second Respondent ‘CAS 203/306 Page? ‘TRIBUNAL ARBITRAL DU SPORT COURT OF ARBITRATION FOR SPORT ‘TRIBUNAL. ARBITRAL DEL DEPORTE Pawries ‘Vegalta Sendai (the “Appellant” or “Sendsi) is «professional Japanese football club aifilisted with the Japan Football Associaton, which in turn is affliated with the Fédération Internationale de Football Association (“FIFA”), The clib is curently perticipating in the J1 League, which isthe ter-1 league of Japanese football PFC CSKA Moscow (the “Fist Respondent” or “CSKA") isa professional Russian football club affiliated withthe Russian Football Union, which in tum s affiliated with, FIA, The Fitst Respondent i curently participating in the Russian Pemict League, ‘which isthe ir-1 league of Russian football FIFA (the "Second Respondent”) isthe world governing body of football, based in Zarich, Switzerland. FACTUAL BACKGROUND Background Facts Felow is a summary of the relevant facts and allegations as established by the Sole ‘Arbitrator on the basis of the deision rendered by the Single Judge of the Players" Status Committe (dhe “FIFA PSC") on 10 August 2021 (the “Appealec Decision”) the ‘writen submissions of the Parties and the evidence sdduced. Addtional facts and allegations found in the Parties" written submissions and evidence may be set ou, where felevant in connection with the legal discussion that follows, While the Sole Arbitrator has considered all the facts allegations, legl arguments and evidence submited bythe artes inthe present proceedings, the Sole Arbitrator refers in thls Awatd only tothe submissions and evidence he considers necessary to explain its reasoning. In August 2018, the services of the Japanese professional football Player Tekuma Nishimura (the “Player”) wore transferred from Sendai to CSKA, and ftom the ‘begining of January 2020, the Player, who was then sill under conte with CSKA, ‘was loaned ont 10 the Portuguese football club Portimonense Sporting Clube (CPortimonense”) On 19 March 2020, Sendai, CSKA, Portimonense and the Player entered into a loan agreement entitled Professional Football Player Registation Sub-Loan and Loan ‘Agreement (he “Loan Agreement”), which stated, inter alia, as follows WHEREAS: i CSKA is the owner of all the “Federative and Reonomie Rights” m respect of the PLAYER's registration: i The PLAYER isa temporarily regstered profesional football play with PORTIMOENSE on Loan transfer from CSKA pursuant to an employment (cas 202041806 Page 3 TRIBUNAL ARBITRAL DU SPORT COURT OF ARBITRATION FOR SPORT TRIBUNAL ARBITRAL DEL DEPORTE ‘contract registered with the Portuguese Football Federation, lik SENDAI wishes to temporary acquire the PLAYER'S registration pursuant to an employment contracts) f0 be entered ito between SENDAI and ihe PLAYER forthe Loan Periods as defined herein; bed 1 The partes hereto, provided thatthe regiration period of the Russian Football Union is clsed a the execution date heren, forthe purpose of the Player's temporary registration with SENDAI have agreed «) fo execute the PLAYER'S Sub-loantransfor from PORTIMONENSE fo SENDAI until the end of the loan period pursuant 10 the “inital transfer agreement beoween CSKA and PORTIMONENSE dated 8 Janaury and 2) to execute the PLAYER'S Loan transfer from CSKA to SENDAL bd 1) CSKA consents to transfer on Su-Loan from PORTIMONENSE fo SENDAL for ‘the period commencing on the 20 March 2020 and ending on 30 June 2020 (hereinafer: the Loan period 1), the registration ofthe professional fotbalt player TAKUMA NISHIMURA to SENDAL 2) Pursuant hereto PORTIMONENSE shal! temporarily transfer the PLAYER’: registration to SENDAI forthe Loan Period I and fulfil all obligations to execute the PLAYER’ temporary transfer to SENDAI according fo applicable FIFA regulations. 43) In connection herewith, SENDAI does not have to pay fo both CSKA and PORTIMONENSE any camountuntess orherwise express agree here. fol 5) Following the Loan Period I, the PLAYER shall recommence his registration with (CSKA oW U July 2020, cane! hen sll Be temporarily transferred to SENDAI for ‘the period from 2 July 2020 uni | January 2021 (Loan Period 2). Loan Period 1 ‘and Loan Period 2 are together jointly referred to asthe Loan Periods 6) Incase the PLAYER during the Loan Periods participates in less than 50% (Fifty, prcen) matches for SENDAI In the J-League sporting season 2020, provided that ony the matches in which the PLAYER played 45 (Forte) or mare ‘minutes shail be token ino account, SENDAI shall pay CSKA a conditional transfer compensation inthe amownt of 100,000 (One hundred thousand) Euros NET, i. exclusive of any solidarity contributions, training compensations, taxes, levies ov bank commissions, et, 0 faer than 31 January 202 27) The PLAYER's Sub-loan transfer to SENDAI,or the Loan Period I subject 10 the medical examination. SENDAI shall notify CSKA and PORTIMONENSE of the results ofthe medical examination inmedhately va email fol ‘CAS 202101806 Page & ‘TRIBUNAL ARBITRAL DU SPORT COURT OF ARBITRATION FOR SPORT TRIBUNAL ARBITRAL DEL DEPORTE 10, 12) During the Loan periods, SENDAI agrees and shall be the sole perty responsible Jr payment of any reminoration (including but not limited to salary possible prize ‘monies, subsidies ef) to the PLAYER according 10 the Employmen Agreement (3) conetuced Betieen sem.” bal” Inthe spring of 2020, the FIPA TMS Department requested Sendai and CSKA to submit theie respective positions with regard toa potential breach of Article [8bis (1) of the FIFA Regulations on the Status and Transfer of Players (the “FEA RSTP"), with regard to Clause 6 ofthe Loan Agreement and additionally, if established, with regard to the possible breach of Adicle 4 (3) of Annex 3 of the FIFA RSTP. On 23 July 2020, the FIFA Disciplinary Committee (the “FIFA DC") rendered its decisions (the “FIPA DC Decisions") and found both Sendai and CSKA responsible for the infingement of the relevant provisions regarding tird-pry influence by entering into Clause 6 of the Loan Agreement, In addition, the FIFA DC deciled that Sendsi filed provide mandatory information in TMS (Arde 4 par. 3 of Amex 3), The FIFA DC was, intr alia ofthe “firm opinion that (Clause 6] prevents Sendal from “freely making a decision as to which players 10 select in a mah withthe aim of ‘achieving the hes result possible, given that Sendai is instigared to selet @ certain ‘lager because ofthe posible negative financial impact that not doing would involve.” The PIPA DC ordered Sendai to pay a fine of CHF 10,000, while CSKA was ordered to pay a fine of CHE 12,500, and hoth elubs, in application of Article 6 pa. 1 (a) ofthe FIFA Disciplinary Code, were warned about their future conduct ‘The FIFA DC Decisions did not set out any dest legal consequences inter partes between the two elubs with regard to the Loan Agreement. By leter of 22 October 2020, CSKA asked Sendai why the Player “har been not inthe squad in ast three matches.” (030 October 2020, Sendai informed CSKA that the Player was injure and forwarded, inter ala, «copy of a medical certificate ofthe Player. (n 17 February 2021, Sendai and CSKA concluded a Player Transfer Agreement (the “Transfer Agreement”), under which the Player's services where tansfered fom SKA to Sendai on a definitive basis and without an unconditional tansfer fee to be paid By letter of 19 March 2021, CSKA forwarded a letter to Sendai, which tate, ner alia, 8 follows: “fol {The Loan Agreement] contain ier alia clause 6, which reads as foes: (CAS 2021018206 Page 5 ‘TRIBUNAL ARBITRAL DU SPORT COURT OF ARBITRATION FOR SPORT ‘TRIBUNAL ARBITRAL DEPORTE 6) In case the PLAYER during the Loan Perlods participate in less than 50% (Fifty percent) matches for SENDAT Inthe J-League sporting season 2020, provided tha only the matches in which the PLAYER played 45 Fortysfve) or more minut shall be taken {nto account, SENDAT shall pay CSKA a conditional transfor compensation in the ‘amount of 100,000 (One hundred thousand) Euros NBT, Le exclusive ofany solidarity ‘contributions, training compensations, taxes, levies or Bank commissions, ef, no later ‘han 31 Jamuary 2021 ‘Ts, the Payer parteipated only in 39 %of matches of FC Vegolta Senda in J-League ‘sporting season 2020. Derefoe, the conditional transfer compensation 100,000 (one Iundred thousand) Euros NET became due on 31 January 2021. However, PC CSKA has not yet received the mentioned amount As you are certainly aware, both FC Vegalta Sendai and PFC CSKA were found 0 be in breach of Art, 1Sbis of FIPA Regulations on the Status and Trarsfer of Players (*RSIP”) by FIFA Disciplinary Committee (“FIFA DC") by including this clause 6 Ino the Agreement, Nevertheless, the corresponding decisions of FIFA DC did not establish clause 6 ofthe Agreement to be invalid andlor void. We consulted with experienced sports lawyers from the European Club Association, ‘who concluded thar even ifthe clause was considered to bein breach of Art. 18bis of the RSTP, thie dacs mot mear that i wil be considered as “unlawfil”. In that regard Clauses with similar nate asthe clause 6 ofthe Agreement have een consistently held 4s valid by FIPA's deciding bodies Inconnecton herewith we propase you to resolve his situation amicably and conclude ‘an addendum ta the Agreement whereby the conditional transfer compensation is 0 be ‘decreased to 75,000 Seventy-five thousand) Euros NET. We are also ready to discuss ‘comfortable payment schedule...) We kindly ask 10 send us pour answer to this proposal within 10 (Ten) days as ofthe date ofthis eter by sending a email 0... Ifwe do not reeeive yourresponse within ‘the mentioned time lnit, we wil! have no other cholce but to proceed with a formal claim 1 your elub at FIFA deciding bodies, [By eter of 25 March 2021, Sendai answered CSKA, infer ala follows: “LOAN AGREEMENT concluded on March 19% 2020 clause 6 states following condition [-} {Hfas been row, the above statement has breached Art. 18bls of FIFA RSTP. Vegelta ‘Sendat's opinion is implementing article violate FIFA Rules is simple violation, Following terms is been written in judgment berween Vegalia Sendai and PFC CSKA on 239 of lly “Should such infringements occur again tn the future, the Commitee would be [efi with no other option than 10 impose harsher sanctions on the Chub. (CAS 2M2V9806 - Page 6 ‘TRIBUNAL ARDITFAL DU SPORT COURT OF ARBITRATION FOR SPORT ‘TRIBUNAL ARBITRAL DEL DEPORTE 18 ‘Therefore, implementing violated artiele is repeat of violation, Vegalte Sendai cannot Implement Loan Agreement clause 6 Player has been injured on 3° October, date came back from inury was I of ‘December, During this period 11 games where held, player could not participate due to injury. [From the date reiterated to until injury, Player participated in every 14 games. Among, ‘them Player parteipaed more than 4Smnns in 9 games. There was no dow player was Iilltary swengeh of Veglta Senda “Assuming participation went over 509% if there wasn’t infury to player: This article designate player didnot participate, even player was in te condition w partepate in the game. Referring to 1 games Player was notin the condition to participate inthe ‘gante Therefore, games held during injury period shouldn't be included in percentage, FIFA DC indicated [Contract 1] Clause 6 as violoted Art. 18bis f FIFA RSTP. Following are statement from PFC CSKA, “Clause 6 of (Contract 1} does not prohibit the Player to participate ina match against a particular ly, Thi clause Is aimed to protect the Player's right to ‘participate in matches fo maintain his sporting value PRC CSKA inxs, objective ofthis option isto guarantee the games for player and ‘maintain the value of player. This objective was achieved unl player erred an injury. [there was no injury by the end of season objective was possibly achieved. From two point of view, Vegalta Sendei has no responsibilty make e payment By letter of 26 March 2021 to Sendai, CSKA maintained its positon regarding its claim setting a fen (10) day time limit for Senda to remedy its default, wih reference to the principle of pacia sunt servanda and referring to Article 12bis (3) ofthe Regulations on. the Status and Transfer of Payers (the “FIFA RSTP?) Finally, by letter of 30 March 2021, Sendai responded, inter alta that "seems dificult to solve it fit goes om lke this, $0 we recommend that the partes ash FIFA deciding Dodie 10 solve i.” Proceedings before the FIFA Players’ Status Committee (On & April 2021, CSKA lodged a claim against Sendai before the FIFA PSC on the buss thatthe Player did not play atleast 50% ofthe matches inthe J-League inthe 2020 sporting season, roquesting the following.” 1) To establish thar [Sendat..} shal pay to [CSKA] 100,000 (One huadred thousand) Euros NET plus a 5% interest per arum proportionately per diem from T February 2021 unl the date ofthe effective etre payment. 2)To impose on [Sendai] an applicable sametions) pursuant Art. 126is (par. 9) of the RSTP. ‘CAS 2021018206 Page? TRIBUNAL ARBITRAL DU SPORT COURT OF ARBITRATION FOR SPORT ‘TRIBUNAL ARBITRAL DEL DEPORTE 20 24 2, 23. 25, 26, 2. 28 2, 3)To order tha all eosts in connection with these proceedings shall be borne by (Sendai}.” In support ofits claim, CSKA submited, ter ala, tha the wording of Clause 6 ofthe [Loan Agreement was clear and that the same contrat did nt contain ary provisions by ‘which the parties agreed to exclude from the calculation the matches missed by the Player duc to a possible injry or suspension CSKA was moreaver of the opinion that any argument related to whether the Player ‘would have been Fielded had he not been injured wes hypothetical, In its repy to the claim, Sendai refered to the Players injury during the season in ‘question, Furthermore, it submitted, iner alia, thatthe obligation (o fed the Player) ‘became null as i was impossible fo be complied with according to she principle of impossiilion naa obligation est Equally, Sendai argued that inline with Antcle 119 of the Swiss Code of Obligations {the "SCO" it became impossible to comply with the payment obligation on count ofthe ulterior impossibility (arising from the Player's injury, for which the Appellant bore no fault or negligenes, Consequently, Sendai requested thatthe claim be dismissed. Having established its competence o deal withthe matter, he FIFA PSC then concluded that since the claim as fled in April 2021, the February 2021 edition of the FIFA. STP was applicable to the mater at hand. The FIFA PSC then rtered fo the Kules Governing the Procedures of the Players Stats Committee and the Dispute Resolution Chamber (the “FIFA Precedural Rules”) and realled the basic principle of burden of proof, according to which any party liming aright on the bass ofan alleged fact earties the respective burden of proof, With rgard othe substance ofthe mater, the FIFA PSC took note ofthe fact that the Parties were disputing whether the payment obligation set ou in Clause 6 ofthe Loan ‘Agreement had been triggered or no In this respect, Sendai argued that under Aticle 119 of the SCO, such payment hligaion could not be performed lor circumstances beyond its contra, viz. the injury ofthe Player. Furthermore, it was not disputed thatthe Player hd played less than 50% fof the mates in the relevant season for its team, but Sendai instead argued that the participation percentage should be calculated based on the matches where the Player fad in fact been evailableelgibe to play, thus excluding the games where he was, for instance, injured However, the FIFA PSC observed thatthe contractual clause at stake was clear and ‘unequivocal in the sense that no exception was included therein inthe ealewlation of | ‘matches. Thus, no interpretation was needed, in Tine with the principle of in clas non (CAS 202008306 Pape & ‘TRIBUNAL ARBITRAL DU SPORT COURT OF ARBITRATION FOR SPORT TRIBUNAL ARBITRAL DEL DEPORTE. 30 31 32, 33. x. 35, 36. 37 38. {it imterpreteio, i onder to conclude that the matches to be considered were all those ‘layed in the relevant season, axl no oly those where the Player was atilable to play. With that in mind, the FIFA PSC highlighted, infer aia, that ifthe pates hd wanted the contingent fe to be payable upon caleulaton of the Players eligible matches, they should have explicitly stated so, As the Parties had failed to do so, the FIFA PSC could ‘only conclude that the matches to be considered were all those played inthe relevant seazon and aot onl those where the player was availabe to play Based on the above, the FIFA PSC was comfortable to set aside Sendai’s line of argumentation that it ys affected by an unpredictable eireumstance beyond its sphere fof control as the possiblity that a player might be injured during the course ofa season cerainly is not unforeseeable In view ofthese circumstances, the FIFA PSC found thatthe Player hal indeed played Tess than 50% ofthe matches for Sendsi of the relevant season, hence tiggeing the ‘contingent payment under the Loan Agreement. In view of the above, the FIFA PSC established that Sondsi in acconlance with the principle of pact sunt servanda, was liable t pay to CSKA the contactually agreed Contingent Fee of EUR 100,00. Furthermore, and in Tine with its constant practic, the FIFA PSC decided to award CCSKA interest athe mte of 5% pa. at From one day after the due date and unt the date of effective payment ‘With regan tothe consequences, the FIFA PSC took note of the fat thet CSA had duly procosded in accordance with Article 12bis (3) of the FIFA RSTP, as CSKA had put Sendai in defaalt of payment of the relevant amount while setting atime limit often (10) days to remedy the default “The FIPA PSC then refered to Amicle 12bis 2) ofthe FIFA RSTP, which stipulates ‘that any club found fo have delayed a due payment for more than 30 days without a Drima facie contractual basis may be sanetioned in accordance with Arce 12bis (4) of | the same regulations, in this regard, the FIFA PSC establishod its competence by virtue of the said provision to impose sanctions on Sendai and thus deviced to impose a ‘yaming on the club Furthermore, te FIFA PSC decided that, in the event that Sendai does not pay the ‘amount due to CSKA within 4S days ffom the moment when the Iter communicates the relevant bank desis to Sendsi, a ban fom registering any new players, ether rationally ot internationally, forthe maximum duration of thee entieand consecutive registration periods will be applicable to Sendai in accordance with Asticle 24bis (2), (4) and CP) ofthe regulations. (On 10 August 2021, the FIFA PSC rendered the Appealed Decision and decided, inter ala, tat (CAS 2021018305 Pape 9 TRIBUNAL ARBITRAL DU SPORT COURT OF ARBITRATION FOR SPORT TRIBUNAL ARBITRAL DEL DEPORTE 39 40, 41 2. “1. The claim of CSKA} is accepted 2. [Sendai] has o pay to [CSKA], the following amount = EUR 100,000 as outstanding payment plus 5% interest pa. as ftom 1 February 2021 until he date of efetive payment. 3. A warning is imposed on (Sendal. 4. Full payment (including all applicable interest) shall be made othe bark account indicated inthe enclosed Bank Accoun Registration Form. 5. Pursuant fo artle 24bis ofthe Regulations onthe Starus and Traasfer of Players 1 fall payment (including all applicable Ineres) 1s not paid whin 43 days of notification ofthis decision, the following consequences shal appl 4 [Sendai] shall be banned from registering any new players, ether nationally internationally, up until the due amount ts pad. The maxima curation of tree tentre and consecutive regsirasion periods 2. The present matter shall be submitted, upon request, tothe FFA Disciplinary Committe in the vent that full payment (including all applicxble interest) is sill not paid by the end ofthe of the three entire and eonsecuive registration periods 6. The consequences shall only be enforced atthe request of [CSKAT in accordance with article 24bis paragraphs 7 and 8 and article 24ter ofthe Regulations om the Stans and Transfer of Payers 7. The final costs ofthe proceedings in the amount of CHF 15,000 ae 10 be pad by [Sendai] fo FIEA, (On6 September 202, the grounds of the Appealed Decision were communicated (othe to clubs. PROCEEDINGS HEFORE THE COURT OF ARBITRATION FORSPORT (0025 September 2021, the Appellant filed its Statement of Appeal with the Court of Atbitration for Spor (the “CAS") in accordance with Articles R47 and R48 of the Code of Sports-elated Arbitration (the “CAS Cade”) against the Appeal Decision Qn 27 October 2021, the Appellant filed its Appeal Brie in aeordance with Article RSI ofthe CAS Code ‘On 6 and, respectively, 7 December 2021, the Respondents filed thir Answers in accordance with Anicle RSS ofthe CAS Code, (CAS 2020018306- Page 10 TRIBUNAL ARBITRAL DU SPORT COURT OF ARBITRATION FOR SPORT TRIBUNAL ARBITRAL. DEL DEPORTE 48 44 4s 46, 4 Ww. 48 49, (On 7 December 2021, and in aecondance with Adicle RS4 ofthe CAS Code, the Parties ‘were informed by the CAS Court Office tha the Panel ad been constitated as follows: Sole Arbitrator: Me Lars illiger, Attomey-st-Law in Copenhagen, Denmark ‘On 10, 13 and 14 December 2022 respectively, the Panes informed the CAS Court, ‘Office that no hearing was needed and thatthe Sole Arbitator was allowed t ender an arbitral award based on their writen submissions. By letter of 16 December 2021, the Parties were informed that the Sole Arbitrator ‘deemed himself sufficiently well-informed to decide this case based solely on the Paris" written submissions without the need to hold a hearing, which was inline with the preference of the Parties n 16 Febroary 2022, the CAS Court Ofice invited the Parties o sign and return the Onder of Procedure, (On 16, 17 and 22 February 2022 respectively, the Parties signed and reumed the Onder of Procedure, ‘Suavussions OF THE PARES ‘The Appellant In its Appeal Brief, the Appellant requested the CAS: “L. Ta confirm thatthe pons appeal ic admisible, ana CAS has justin to rule ‘onthe merits. Il. To.review the present case as tothe facts and the law, dn compliance with Article R37 ofthe Code of Sports-related Arbitration. Ml, To set aside (the Appeated Decision), annullng all points of ts findings [Section I ofthe Appeated Decision, point from to 7 (both included), fo be annulled ] LW, To establish that the costs of Arbitration procedure should be borne by the Respondents ¥. Ta grant to the Appellant a contribution towards its legal expemses, incurred in ‘connection with these arbitral proceedings, not ess than 5,000 CHF.” ‘The Appellants submissions, in essence, may be summarised as follows = Ry decisions of the FIPA Disciplinary Committe, both Sendai md CSKA were sinetioned, infer alia, for a violation of Article 18bis (1) of the FIFA RSTP, ‘considering that Clause 6 of the Loan Agreement violated the rules concerning third party influence. ‘CAS 20200/8206- Page I ‘TRIBUNAL ARDITPAL DU SPORT COURT OF ARBITRATION FOR SPORT ‘TRIBUNAL ARBITRAL DEL DEPORTE = As such, Clause 6 of the Loan Agreement is null snd void as i's unlawful and cannot be enforced. = In.an ordered legal system, it is inconsistent if onthe one hand, ene of is norms establishes that a behaviour i prohibited and sanctions it while, onthe other hand, the same system, based om another norm or legal principle, recognises the same [behaviour ae valid and effective, This should not he the ease = Inthe present ease, the FIFA RSTP does not establish the legal consequences of conteavention of Amite TSbis (1) of the sume regulation, and ths gsp therefore needs to be filled withthe application of Swiss law in order to be able to avoid the fnconsistencies that the exclusive application of the FIFA RSTP without any complementary priniples can case = Pursuant to Article 19 of the SCO */. The terms of a contract may be freely determined within the limits of the law. 2. Clauses that deviate from hose prescribed by law are acimssible only where the law does not prescribe mandatory forms of ‘wording or where deviation from the legally prescribed terms would contravene _publie policy, moray or rights of personal privacy.” However, such contractual freedom is not without limits since Aricle 20 refers to the nullity of contracts or their elauses, stating that “L.A contract is oid iis terms are impossible, wnlavfal or immoral. 2. However, where the defet pertains only to certain terms of a contrac, those torms alone are void unless there {s eause 10 fssume tha the contract would nov have Been concluded without them.” ‘As Aicle 18bis (1) of dis FIFA RSTP is « mandatory and prohibitive rc, any ‘agreement concluded by the two clubs in contravention there shoul! be considered ‘null and void in application of Article 19 2) ofthe SCO, “This interpretation is the only possible way to provide the applicable law with a systematic and coherent interpretation and to avoid the appearnce of severe antinomies. = Furthermore, and in line with the principle of Ad imposiilia nemo tenetur, a ‘contractual obligation is null and void due tothe so-called objective impossibility, if the performance of such obligation is already impossible at the time of the ‘conclusion ofthe eortuct or in time, becomes objectively imposible to perform by the party committed to do So. = ‘This legal principle is embodied in Astile 119 of the SCO. In ote for the conltions of Anite 119 ofthe SCO tobe met, the impossibility of fulfilling the contractual obligations mst occur after the date of tbe conclusion of the contract and must be unzelated fo any ibility of the debtor. {CAS 2020206 Page 12 ‘TRIBUNAL ARBITRAL DU SPORT COURT OF ARBITRATION FOR SPORT TRIBUNAL ARBITRAL DEL DEPORTE 50, = In the present case, Sendai was faced with a supervening impossibility, not attributable toi, which prevented it fom fielding the Player in at lest 50% ofthe ‘League matehes in the 2020 season for 45 minutes or mote in each them, which ‘cans that Ariele 119 of the SCO is applicable, leaving Sendai exonerated fom the payment of the amount claimed by CSKA based on Clause 6 of the Loan ‘Agreement, = Since his registration with Senda, the Player was one ofthe most relevant players ‘ofthe team, = Out ofthe total oF 20 matches in which the Player vas fit to play wihout injury and without having to serve any’ disciplinary sanctions the Player played in all 20 tmatches and in at least 13 of them more thin 4S minutes, which s equivalent 0 65% ofthe total rer of matches in Which the Player was itt pay, “The Player missed some of the J-League matches in the 2020 season only for injury reasons and based on the medical decision of, inter alia, the team doctor. = Therefore, and in any case, it must be the numberof mates in which the Player hha the possibility to participate that should form the basis forthe calculation of the percentage of participation in ascordence with Cause 6 ofthe Loar Agreement. - With regard to the content of Clause 6 ofthe Loan Agreement, the FIFA PSC wes ‘rong in deciding onthe intention ofthe two clubs based on whit was expressly ‘agreed upon in tho said contact without aking into consideration oer fundamental elements ‘As auch, and in accordance withthe principle of pacta sunt servaaa, in the present tase, by reference fo Swiss law and Article 119 of the SCO, the appeal must be Upheld on the grounds that the performance has Become impossible and therefore the obligation contained in Clause 6 ofthe Loan Agreement was extinguished ex Tege by becoming impossible. = Imany case, and if Article 119 ofthe SCO is not found applicable to this dispute, the rules of contriet intespretation mast be applied, no matter whether the wording of the provision is clear or not. "The Respondents nits Answer, the Ftst Respondent requested the CAS to tule as follows i. Theappeal submited by [Sendai] against [CSKAJ ana FIPA i lsmissed nfl. ji, [The Appeated Decision] is upheld ‘The costs ofthe arbitration are borme by (Sendal] in thelr entirety. (CAS 202306 Page 13 TRIBUNAL ARBITRAL DU SPORT COURT OF ARBITRATION FOR SPORT TRIGUNAL ARBITRAL DEL DEPORTE SL iv. [Sendai] is ordered to reimburse [CSKAJ its legal costs in the amount of CHF 10-000 (Ten thousand Swiss Francs)” ‘The First Respondents submissions, in essence, may be summarised as follows: = It is comect that the FIFA Disciplinary Committee found CSKA, together with Senda, tobe in breach of Article I8bis ofthe FIFA RSTP in elation to Clause 6 oF the Loan Agreement + Clause 6 isto be understood as a condition precedent in the sense of Article 151 of the SCO. + In this regard, it must be stessed thatthe principle of contracts! freedom is 3 fandamental legal principle of Swiss law on which the decisions of the FIFA ‘decision-making bodes are base. = Inonderto decide whether Clause 6 ofthe Loan Agreement i valid end enforceable, itmust be analysed whether such # clause i lawl and doesnot enti an exeessive ‘commitment for Send = CAS jurisprudence (CAS 2018/4/6027) has already decided that “Article 18bis is not concerned with the issue of the validiy and/or the binding nature of the ‘contractual provisions enabling apart 10am agreement fo exereise undue influence ‘omits counter party fooball club. [..] Iti perfecly possible that said contractual ‘agreed provisions are enforceable under set of applicable (til law) rules and at ‘the same time fall foul of Article ISbs ofthe FIFA Regulations (which at any ease ‘does not and cannot determine whether they ae illegal, invalid or unenforceable ) fol" + Moreover, and also in line with CAS jurisprudence (CAS 2020/4/7158), an infkingement of Anticle 18bis ofthe FIFA RSTP presupposes, inter cla limitation ‘of a club's independence and tht such limitation undermines the integrity ofthe ‘relevant competition in the sense of Anicle (a) ofthe FIFA Stats, = Clause 6 of the Loan Agreement didnot affect or limit Sendai’ independence tothe ‘extent that the integrity ofa competition could beat rsk ~ _Assuch, and even if Clause 6 ofthe Loan Agreement was consderel to bein breach (of Ane ISbis ofthe FIFA RSTP, this doesnot mean that itis to te considered ss, “unlawsi™ = Moreover, the same elause has been consistently held valid by FA's decision- ‘making bodies. = Moreover, and in line with the Swiss Federal ‘Tribunal, Clause 6 of the Loan ‘Agreement does not entail an excessive commitment from Sendai as the sid club ‘as not subject to CSKA’s arbitrariness, dd not give up its financal freedom and ‘id not curtail itt seh an extent that the Foundation ofits fnaneil existence was jeopardised. No evidence to the contrary has been provided by Seni. {CAS 2001008006 Page 14 TRIBUNAL ARBITRAL DU SPORT COURT OF ARBITRATION FOR SPORT TRIBUNAL ARBITRAL DEL DEPORTE 32, 53 = Assuch, Clause 6 ofthe Loan Agreement is enforceable, valid and binding upon the Parties, = The performance of the suid clause doesnot depend upon the Player's injury, and whether or not the Player was injured during his tay with Sendai inthe 2020 season is imelevant with regard 10 Sendai's payment obligation pursuant fo Clause 6 ofthe Loan Agrecment = The wonling ofthe clause, which was agreed by the two elubs uncer the principle ‘of contactual freedom, is clear and specific and does not state tat any matches should be excluded from the calculation of the $O% partieipation. Sendai never ‘suggested any other meaning before signing the Loan Agreement. +The wording of Clase 6 of the Loan Agreement leaves no room for any other interpretation mn any case, Sendai’s assumption tht the Player, had he not been injured, would have player at least 509% ofthe matches in question, is purely hypotetical, Inits Answer, the Second Respondent requested the CAS to issue an award onthe (a) Rejecting the reliefs sought By (Sendai (©) Confirming the Appealed Decision; and (6) Ordering [Sendai] to bear the ful cost ofthese arbitration proceedings” the Second Respondents submissions, n essence, may be summarised as follows Sendai mainly disputes having to pay any amount pursuant to Clause 6 of the Loan ‘Agreement for several reason, mainly its alleged nullity and the alleged non- fulfilment ofthe condition set out in the said cluse ‘As these issues pertain to the tilly horizontal dispute between Sendai and CSKA, FIPA leaves it to the Sole Atbitator to determine whether or not sch an amount is due by Sendai In aty case, should the amount in question in fat be du, Sendai doesnot dispute having fled to pay such an amount to CSKA or that Article 12h of the FIFA [STP is applicable based on suc failure. [As CSKA fully complied with the formalities frescen in Article “2bis ofthe said regulations, the FIFA PSC was entitle to impose a warning onthe Appeliant. = Sendai does not specifically contest the disciplinary sanction ints appeal tthe CCAS, but only generically requests the annulment ofthe Appealed Decision. ‘CAS 202UAIO6- Page 15 {TRIBUNAL ARDITFALDU SPORT COURT OF ARBITRATION FoR SPORT TRIBUNAL ARBITRAL DEL DEPORTE 5s, 56 vL ED ss. = For Antile 12bis ofthe FIFA RSTP to be applied, a club must a) have delayed a ‘due payment for more than 30 days without prima face contractal basis, and b) the ereditor must have put the debtor in default in writing and have granted & ‘deadline of at least ten days forthe debtor 1 comply with its finan obligations = Both conditions have been met in the present case as the concitiona transfer ‘compensation became due on 31 January 2021 and has not yet been paid to CSKA, and because CSKA, on 19 March 2021, put Sendai in default, granting the Tater & tenday deadline to comply with the payment of the said’ conitional transfer compensation [Based on the above, the FIFA PSC correctly imposed a proportiorate sanetion on Senda in accordance with Article 12bis (4 of the FIFA RSTP, whichis in fact the less severe ofthe posible sanctions set out in the said article, and noting that Sendai was not aepeat offender. Turasprevion Anicle RT ofthe CAS Code provides, inter alias fllows: “am appeal against the decision of a federation, association or sports-related body may be filed with CAS Ifthe statutes or regulations ofthe said body so provide or If the pparles have concluded a specific arbiration agreement and if the Appellant has exhausted the legal remedies availabe ti prior tothe appeal. in accurdance withthe ‘statutes or regulations of tha body.” With respect tothe Appealed Decision, the jurisdiction ofthe CAS derives from Article 58 (1) of the FIFA Statues. In addition, neither the Appellant nor te Respondents ‘objected to the jurisdiction ofthe CAS, and all Parties confirmed the CAS jurisdiction When signing the Order of Procedure. It follows that the CAS has jurisdiction to decide on the appeal of the Appested Decision AwissimiLiry Article R49 ofthe CAS Code provides, inter alia, as follows: “In the absence of a time limit set In the statutes or regulations of the federation, «xsociation or sports-related Body concerned, or ina previous agreemet, the me limit {for appeal shall be twenty-one days from the receipt of the decision appealed against} It fllows from Antle 58 of the FIFA Statutes (2020 edition), intr ali, that ‘CAS 2028306 - Page 16 TRIBUNAL ARDITPAL DU SPORT COURT OF ARBITRATION FoR SPORT TRIBUNAL ARBITRAL DEL DEPORTE 8, 6, 61 vu. 0 6 64, “Appeals agains final decisions passed by FIFA's legal bodies and against decisions passed by confederations, members o” leagues shall be lodged with CAS within 21 days ‘ofreceipt ofthe decision n question” ‘The grounds ofthe Appesled Decision were notified to the Appellant on 6 September ‘2021, and the Appellants Stalement of Appeal was lodged on 25 September 2021, ie ‘within the statutory time limit of 21 days st forth in Article R49 of the CAS Code and in Anicle $8 ofthe FIFA Statutes, which is not disputed. Furthermore, the Statement of Appeal and the Appeal Brief complied with all the requirements of Articles R48 and RSI of the CAS Code Ie follows that the appeal is admissible AprLicanur Law ‘Amie RS8 ofthe CAS Code provides as follows “The Panel shall decide the dispute according to the applicable regiations and the rules of lw chasen by the partes or, in the absence of sucha choice, according fo the Taw ofthe country in whic the federation, association or sports-related bod whick has issued the challenged decision is domiciled or according 10 the rues of law, the ‘application of which the Panel deems appropriate. In the latter case, the Panel shall sive reasons for its decision.” Aicle 57 2) of the FIFA Statutes determines the following: “The provisions of the CAS Code of Sportsrelated Arbitration shall apply to the proceedings. CAS shall primarily apply the various regudations of FIFA and, ‘additionally, Swiss Law.” ‘The Sole Arbitrator futher notes that Clause 15 of the Loan Agreement states as follows “This Agreement Is subject 10 and governed by and in accordance with the FIFA Regulations. Any and all disputes wil be handled by the competent FIFA bod Inthe event that FIFA shall not be competent to hear any particular dispute arising out of or {in connection with this Agreement suck dispute shall be finally settled in accordance ‘with the Rales ofthe Code of Sportsrelated Arbitration ofthe Court of Arbitration for ‘Sport (CAS), located in Lausanne, Switzerland, the language ofthe proceedings shall ‘be English and the decision ofthe CAS shal be fn and binding onthe parties hereto.” Based onthe above, and with reference tothe filed submissions, the Sole Arbitator is satisfied thatthe various regulations of FIPA are primaily applicable and that Swiss law i subsidiarly applicable should the need arise to Filla possible gap in the various regulations of FIFA, {cA 20208006 Page 17 TRIBUNAL ARBITRAL DU SPORT (COURT OF ARBITRATION FOR SPORT TRIBUNAL ARBITRAL DEL DEPORTE vi. 66, a. cs Meners Initially, the Sole Arbitttor notes that the factual circumstances pertaining to this Aispute are undisputed by the Parties. In rendering this award, the Sole Arbitrator has therefore taken into account the following non-exhaustive ist of factors and considerations: = On 19 Match 2020, Sendai and CSKA, among others, entered into the Loan ‘Aproement regarding the loan of the Player, which agreement state, infer aia, as follows in Clase 6: “In case the PLAYER duving the Loan Periods participates in ess tan 50% (Fy percent) matches for SENDAI in the -League Sporting season 2020, provided that ‘only the matches in which the PLAYER played 43 (Fortfive) or move minutes shall be taken into account, SENDAI shall pay CSKA a conditional transfer compensation {nthe amount of 100,000 (One hundred thousand) Furas NET, i. exclusive of any solidarity contribution, training compensation, taxes, eves or bank commissions, te, na later than 31 Janay 2021."

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