TAS-CAS – Tribunale Arbitrale dello Sport – Corte arbitrale dello Sport (2014-2015)———-Tribunal Arbitral du Sport – Court of Arbitration for Sport (2014-2015) – official version by www.tas-cas.org Arbitration CAS 2014/A/3765 Club X. v. D. & Fédération Internationale de Football Association (FIFA), order of 17 November 2014

TAS-CAS - Tribunale Arbitrale dello Sport - Corte arbitrale dello Sport (2014-2015)----------Tribunal Arbitral du Sport - Court of Arbitration for Sport (2014-2015) - official version by www.tas-cas.org Arbitration CAS 2014/A/3765 Club X. v. D. & Fédération Internationale de Football Association (FIFA), order of 17 November 2014 Football Request for a stay Conditions for granting the stay of a decision Stay of a financial decision Irreparable harm 1. In accordance with regular CAS jurisprudence, and as a general rule, when deciding whether provisional measures may be accepted, it is necessary to consider whether the measure is useful to protect the appellant from irreparable harm, the likelihood of success on the merits of the appeal, and whether the interests of the appellant outweigh those of the opposite party. These requirements are cumulative and are also clearly set forth under Article R37 (5) of the CAS Code. 2. Pursuant to the CAS consistent jurisprudence, a decision of a financial nature issued by a private Swiss association is not enforceable while it is under appeal. 3. The mere allegation of irreparable harm itself, not sustained by any factual contention, falls short of a party’s burden of proof to show that it would suffer substantial damage if the appealed decision is not stayed. 1. THE PARTIES 1.1 Club X. (the “Club” or the “Appellant”) is a Turkish football club affiliated to the Turkish Football Federation. 1.2 D. (the “Player” or the “First Respondent”) is a professional football player of Czech nationality. 1.3 The Fédération Internationale de Football Association (“FIFA” or the “Second Respondent”) is an association under Swiss law and has its registered office in Zurich, Switzerland. FIFA is the governing body of international football at worldwide level. It exercises regulatory, supervisory and disciplinary functions over continental confederations, national associations, clubs, officials and players worldwide. 2. FACTUAL BACKGROUND AND PROCEEDINGS BEFORE FIFA 2.1 On an unspecified date, the Player and the Club entered into an employment contract (the “Contract”) valid as from January 2013 through 31 May 2014 pursuant to which the Player was to be paid a monthly salary of EUR 20’000. 2.2 On 6 June 2013, after having received only one month’s salary until that date and having sent a default letter to the Club, the Player terminated the Contract. 2.3 On 1 April 2014, the Player lodged a claim before FIFA requesting payment of his outstanding salaries as well as further compensation for breach of contract without just cause by the Club. 2.4 The Club filed a counterclaim before FIFA requesting on its part damages under the allegation that the Player had breached and terminated the Contract without just cause. 2.5 On 30 July 2014, the Dispute Resolution Chamber of FIFA (the “FIFA DRC”) issued its decision ruling, in essence, to award the Player payment of outstanding salaries in the amount of EUR 80’000 plus interest and to ban the Club from registering any new players, either nationally or internationally, for the next two entire and consecutive registration periods following the notification of the decision (the “Appealed Decision”). 2.6 On 17 September 2014, the Appealed Decision was notified to the Appellant. 3. PROCEEDINGS BEFORE THE CAS AND THE PARTIES’ SUBMISSIONS 3.1 On 8 October 2014, the Appellant filed a statement of appeal with the CAS pursuant to Article R47 of the Code of Sports-related Arbitration (2013 edition) (the “Code”) against the Player and FIFA concerning the Appealed Decision. Together with its statement of appeal, the Appellant applied for provisional measures, pursuant to Article R37 of the Code, requesting “to make an order for provisional measures since the challenged DRC award may cause irreparable harm on the Appellant”. The Appellant did not file any further factual or legal argument in this regard. 3.2 On 9 October 2014, the CAS Court Office initiated an appeals arbitration procedure under the reference CAS 2014/A/3765 Club X. v. D. and FIFA and informed the Appellant that pursuant to the well-established jurisprudence of the CAS, a decision of a financial nature issued by a private Swiss association is not enforceable while under appeal and that, consequently, it may not be stayed. The Appellant was granted a three-day time limit to inform the CAS Court Office whether it maintained its request for a stay of the Appealed Decision in this regard. 3.3 On 13 October 2014, the Appellant informed the CAS Court Office that it maintained its request for provisional measures as the Appealed Decision “[…] does not only contain financial nature (monetary award) but also sporting sanctions to be imposed to the Appellant […] which can cause irreparable harm to the Appellant”. 3.4 On 14 October 2014, pursuant to Article R37 of the Code, the CAS Court Office invited the First and Second Respondent to file their comments with regard to the Appellant’s request for provisional measures within ten days of receipt of such letter by courier. 3.5 On 24 October 2014, the Second Respondent filed its comments on the Appellant’s request for provisional measures, requesting that the Appellant’s request be dismissed in view of the fact that the Appellant did not specify in which manner it would suffer irreparable harm, that its appeal has no likelihood so succeed and that FIFA’s interests outweigh those of the Appellant in the present case. 3.6 On 27 October 2014, the CAS Court Office noted that the First Respondent did not file any comments on the Appellant’s request within the prescribed time limit and advised that the President of the CAS Appeals Arbitration Division, or his Deputy (the “Deputy President”), shall proceed with rendering an Order on the Appellant’s request for provisional measures in due course. 4. JURISDICTION OF THE CAS AND ADMISSIBILITY 4.1 In accordance with the Swiss Private International Law Act (Article 186), the CAS has the power to decide upon its own jurisdiction. 4.2 The extent of the jurisdictional analysis at this point is to assess whether, on a prima facie basis, the CAS can be satisfied that it has jurisdiction to hear the appeal. The final decision on jurisdiction will be made by the Sole Arbitrator. 4.3 Article R47 of the Code provides that: “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 agreement and if the Appellant has exhausted the legal remedies available to him prior to the appeal, in accordance with the statutes or regulations of that body”. 4.4 In the absence of a specific arbitration agreement, in order for the CAS to have jurisdiction to hear an appeal, the statutes or regulations of the sports-related body from whose decision the appeal is being made must expressly recognise the CAS as an arbitral body of appeal. 4.5 Article 67 (1) of the FIFA Statutes (2103 edition), provides that: “Appeals against final decisions passed by FIFA’s legal bodies and against decisions passed by Confederations, Members or Leagues shall be lodged with CAS within 21 days of notification of the decision in question”. 4.6 In view of the foregoing, the CAS, prima facie, has jurisdiction to decide the present dispute without prejudice of any other decision that the Sole Arbitrator could take in the final award or any other disposition terminating the present proceedings. 4.7 The Appealed Decision was notified to the Appellant on 17 September 2014. The statement of appeal has been filed on 8 October 2014, and is therefore, in principle, admissible, without prejudice of any other decision that the Sole Arbitrator could take in the final award or any other disposition terminating the present proceedings. 5. LEGAL DISCUSSION 5.1 In accordance with regular CAS jurisprudence, and as a general rule, when deciding whether provisional measures may be accepted, it is necessary to consider whether the measure is useful to protect the Appellant from irreparable harm, the likelihood of success on the merits of the appeal, and whether the interests of the Appellant outweigh those of the opposite party (cf. Award in CAS 2003/O/486; Orders in CAS 2013/A/3199; CAS 2010/A/2071; 2001/A/329 and CAS 2001/A/324). These requirements are cumulative (see Orders in CAS 2013/A/3199; CAS 2010/A/2071 and 2007/A/1403). Such requirements are also clearly set forth under Article R37 (5) of the Code. 5.2 On a preliminary note, the Deputy President recognizes that the Appealed Decision contains, in essence, two rulings which differ in nature and which the Deputy President wishes to distinguish for the purpose of the legal reasoning of the present Order: i) The FIFA DRC’s order of payment of the outstanding salaries claimed by the Player (the “Financial Decision”) and ii) The ban to register any new players for two entire and consecutive registration periods, imposed on the Appellant (the “Disciplinary Decision”). (I.) The Financial Decision 5.3 Pursuant to the CAS consistent jurisprudence (see for instance the Order on Provisional Measures in the case CAS 2004/A/780), a decision of a financial nature issued by a private Swiss association is not enforceable while it is under appeal. 5.4 FIFA is a private Swiss association constituted under Swiss Private Law having its seat in Zurich, Switzerland. 5.5 Therefore, the Deputy President considers that the Appealed Decision is not enforceable and cannot be stayed. The Appellant’s request must be dismissed in this respect. (II.) The Disciplinary Decision A. Irreparable Harm 5.6 In accordance with CAS jurisprudence, when deciding whether to stay the execution of the decision being appealed, the CAS considers whether such a stay is useful to protect the applicant from substantial damage that would be difficult to remedy at a later stage [see CAS 2013/A/3199 quoting CAS 2007/A/1370-1376 (“The Appellant must demonstrate that the requested measures are necessary in order to protect his position from damage or risks that would be impossible, or very difficult, to remedy or cancel at a later stage”)]. 5.7 The Deputy President holds that the mere allegation of irreparable harm itself, not sustained by any factual contention, falls short of the Appellant’s burden of proof to show that it would suffer substantial damage if the Appealed Decision is not stayed. On this basis alone, the Appellant’s request must be rejected. 5.8 In view of the Appellant’s failure to discharge its burden of proof with regard to the first prerequisite of irreparable harm, a discussion concerning the remaining criteria required under Article R37 of the Code is, therefore, obsolete for the sake of the principle of procedural economy. 5.9 Consequently, the Appellant’s request for a stay of execution of the Appealed Decision is dismissed in its entirety. 6. COSTS 6.1 In accordance with standard CAS practice, the cost of this part of the proceedings will be settled in the final award or in any other final disposition of this arbitration. ON THESE GROUNDS The Deputy President of the CAS Appeals Arbitration Division, ruling in camera, decides that: 1. The application for a stay filed by Club X. on 8 October 2014 in the matter CAS 2014/A/3765 Club X. v. D. and FIFA is dismissed. 2. The costs of the present Order shall be determined in the final award or in any other final disposition of this arbitration.