TAS-CAS – Tribunal Arbitral du Sport/Tribunale Arbitrale dello Sport – Court of Arbitration for Sport/Corte Arbitrale dello Sport (2020-2021) – tas-cas.org – atto non ufficiale – CAS 2020/A/6884 Soukeyna Ba Bengelloun v. FIFA & PFC CSKA-SofiaSeat of Arbitration: Lausanne, Switzerland Date: 29 January 2021

CAS 2020/A/6884 Soukeyna Ba Bengelloun v. FIFA & PFC CSKA-Sofia

ARBITRAL AWARD

delivered by the

COURT OF ARBITRATION FOR SPORT

sitting in the following composition

Sole Arbitrator: Mr Frans M. de Weger, Attorney-at-Law, Haarlem, the Netherlands

in the arbitration between

Ms Soukeyna Ba Bengelloun, France

Represented by Mr Georgi Gradev, SILA International Lawyers, Sofia, Bulgaria

Appellant

and

1/ Fédération Internationale de Football Association (FIFA), Zurich, Switzerland

Represented by Mr Miguel Liétard Fernández-Palacios, Director of Litigation, and Mr Jaime Cambreleng Contreras, Head of Litigation

First Respondent

2/ PFC CSKA-Sofia, Sofia, Bulgaria

Represented by Mr Marc Cavaliero and Ms Carol Etter, Attorneys-at-Law, Zurich, Switzerland

Second Respondent

INTRODUCTION

1. This appeal is brought by Ms Soukeyna Ba Bengelloun (the “Appellant”) against the decision rendered by the Disciplinary Committee (the “FIFA DC”) of the Fédération Internationale de Football Association (“FIFA” or the “First Respondent”) on 12 February 2020 (the “Appealed Decision”), regarding a request of disciplinary measures against the club PFC CSKA-Sofia (the “Club” or the “Second Respondent”). PARTIES

2. The Appellant is a former players’ agent of French nationality.

3. The First Respondent is the global governing body of football with its registered office in Zurich, Switzerland. FIFA exercises regulatory, supervisory and disciplinary functions over national associations, clubs, officials and players worldwide.

4. The Second Respondent is a professional football club based in Sofia, Bulgaria. The Club is affiliated to the Bulgarian Football Association (the “BFU”), which in turn is affiliated to FIFA.

5. The First and Second Respondent (the “Respondents”) and the Appellant are hereinafter jointly referred to as the “Parties”. FACTUAL BACKGROUND

6. Below is a summary of the main relevant facts, as established on the basis of the Parties’ written submissions on the file, the video-hearing and relevant documentation produced in this appeal. Additional facts and allegations found in the Parties’ submissions may be set out, where relevant, in connection with the further legal discussion that follows. While the Sole Arbitrator has considered all the facts, allegations, legal arguments and evidence submitted by the Parties in the present proceedings, the Award only refers to the submissions and evidence it considers necessary to explain its reasoning. Background facts

7. On 28 August 2013, the Single Judge of the FIFA Players’ Status Committee rendered a decision (the “2013 PSC Decision”) and decided that the club PFC CSKA Sofia1 (the “Original Debtor”) had to pay the following amounts:

“1. The claim of the Claimant, [the Appellant], is accepted.

2. The Respondent, [the Original Debtor], has to pay to the Claimant, [the Appellant], the total amount of EUR 50,000 as follows:

1 For the sake of misunderstanding, the Sole Arbitrator wishes to note that the difference between the name of the Second Respondent (PFC CSKA-Sofia) and the Original Debtor (PFC CSKA Sofia) is the hyphen-symbol between CSKA and Sofia in the Original Debtor’s name.

a. EUR 30,000, as well as 5% interest per year on the said amount as from 15 December 2012 until the date of effective payment, within 30 days as from the date of notification of this decision.

b. EUR 20,000 as well as 5% interest per year on the said amount as from 28 February 2013 until the date of effective payment, within 30 days as from the date of notification of this decision.

3. If the aforementioned amounts, plus interest as established above, are not paid within the aforementioned deadline, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision. […].”

8. On 17 September 2013, the 2013 PSC Decision was notified to the Parties, followed by the grounds of the decision on 5 November 2013. No appeal was filed against the 2013 PSC Decision before the Court of Arbitration for Sport (the “CAS”).

9. On 16 September 2014, the Secretariat of the FIFA DC (the “Secretariat”) opened disciplinary proceedings against the Original Debtor due to the latter’s failure to pay.

10. On 10 March 2015, the FIFA DC rendered a decision (the “First DC Decision”) sanctioning the Original Debtor for failing to comply with the 2013 PSC Decision.

11. On 22 May 2015, the Appellant requested that six points be deducted from the Original Debtor’s first team in accordance with the First DC Decision.

12. On 2 October 2015, the Sofia City Court opened insolvency proceedings against the Original Debtor.

13. On 13 October 2015, the Secretariat informed the Appellant and the Original Debtor that the disciplinary proceedings against the Original Debtor were suspended given that the latter was undergoing insolvency proceedings.

14. On 13 September 2017, the Bulgarian Football Union (“BFU”) informed the Secretariat that the Sofia City Court had declared the Original Debtor bankrupt. Moreover, the Secretariat was informed by the BFU that the latter had decided to disaffiliate the Original Debtor on 20 June 2017.

15. On 10 January 2019, the Appellant, relying on the CAS award CAS 2018/A/5647 which was rendered on 28 December 2018, requested the FIFA DC to enforce the 2013 PSC Decision against the Original Debtor.

16. On 19 October 2019, the Appellant requested to be informed of the status of the proceedings, in particular whether disciplinary proceedings had already been initiated against the Second Respondent, which, according to decision 150860 PST dated 25 September 2019, had to be considered as the sporting successor of the Original Debtor. In addition, the Appellant insisted that disciplinary proceedings be opened immediately in the event that no proceedings had yet been initiated.

17. On 22 January 2020, the Secretariat initiated disciplinary proceedings against the Second Respondent for a potential failure to respect a decision passed by a body, a committee or an instance of FIFA or a CAS decision. Proceedings before the FIFA Disciplinary Committee

18. On 5 February 2020, per request of the Secretariat, the Second Respondent provided the Secretariat with its position, which, in essence, may be summarised as follows:

➢ The Second Respondent claimed that there was no legal, financial or organizational connection between the legal entity of the Original Debtor “PFC CSKA AD” and the Second Respondent “PFC CSKA-Sofia EAD”.

➢ In particular, the Second Respondent pointed out that it is the legal successor of the club Litex Lovech and provided the following explanations:

o In the 2015/2016 season, a club called “Litex Lovech” was expelled from the first Bulgarian league;

o At the beginning of the 2016/2017 season, a group of entrepreneurs bought the company “PFC Litex Lovech AD”, the legal entity behind the club Litex Lovech;

o The main idea of these entrepreneurs was to create a new club, which maintains and reflects the historical sporting history of the old club, which at that time was already declared insolvent and was no longer participating in organized football;

o Therefore, the entrepreneurs changed the name of the company “PFC Litex Lovech AD” to “PFC CSKA-Sofia EAD”. Accordingly, the club Litex Lovech became the club PFC CSKA-Sofia. The Second Respondent highlighted that it took part in the newly created Bulgarian first division championship (2016/2017 season) using the sporting licence of the club Litex Lovech.

➢ Furthermore, the Second Respondent claimed that players’ agents do no longer fall under the jurisdiction of FIFA since April 2015. Therefore, by virtue of the principle of equal treatment, such players’ agents should not be able to take advantage of FIFA's enforcement mechanism to force another person being under the jurisdiction of FIFA to comply with a decision.

➢ The Second Respondent admitted that it is using a similar logo and image to the Original Debtor because it bought certain logos, trademarks, etc. out of the bankruptcy mass of the Original Debtor. The Second Respondent emphasised that it has different owners, licences, football teams and legal entities as the Original Debtor.

➢ The Second Respondent has never signed any contract with the Appellant. Therefore, the Appellant should have claimed her credit in the bankruptcy proceedings before the Bulgarian civil court. The Second Respondent further stressed that thanks to its extremely high bid placed and paid into the bankruptcy mass, many creditors registered in the bankruptcy proceedings have been/will be compensated. In addition, the Second Respondent pointed out that the CAS determined that in case a creditor has listed his privileged claim or has omitted to pursue such a claim although possible in a national bankruptcy, no disciplinary enforcement of the same claim can occur against an alleged successor club.

➢ The Second Respondent further highlighted that the Appellant did not take part in the national bankruptcy proceedings before the Bulgarian Court, despite having been informed of the definitive bankruptcy of the Original Debtor through the correspondence dated 13 October 2015 from the Secretariat of the FIFA DC.

➢ The opening of the bankruptcy proceedings was published in the commercial register of the Republic of Bulgaria and was widely covered by the media. Consequently, the Second Respondent claimed that the Appellant was negligent since she did not participate in the bankruptcy proceeding and emphasised that the FIFA DC is not the appropriate forum for remedying a procedural negligence on the part of the Appellant.

➢ The Original Debtor is still able to fulfil its financial obligations towards its employees as the bankruptcy proceedings are still ongoing. As long as the Original Debtor is still in a position to pay its debt, FIFA cannot initiate proceedings against an alleged sporting successor, as the latter would not be able to comply with a decision based on Article 15 of the FIFA Disciplinary Code 2019 given that it is up to the Sofia Civil Court to decide on the amounts owed to each creditor registered in the bankruptcy proceedings.

➢ The FIFA DC would be competent to investigate whether a new club can be held liable for the debts of an old club only in the event that the latter would disappear and become disaffiliated without the involvement of bankruptcy proceedings. The present matter involves a club that went bankrupt, so that national bankruptcy laws take precedence over the FIFA DC’s competence to act in such matters.

19. On 12 February 2020, the FIFA DC concluded, inter alia, that the Second Respondent is to be regarded as the sporting successor of the Original Debtor. In addition, the FIFA DC concluded that the Appellant had been duly informed of the bankruptcy proceedings of the Original Debtor but did not register her claim during the bankruptcy proceedings and therefore waived her right to collect her credit within the frame of the bankruptcy proceedings as a result of lack of diligence of the Appellant in collecting her credit in the insolvency proceedings. In conclusion, the FIFA DC decided as follows:

“1. All charges against [the Second Respondent] are dismissed.

2. The disciplinary proceedings initiated against [the Second Respondent] are hereby declared closed.”

20. The terms of the Appealed Decision were communicated to the Second Respondent and the Appellant on 20 March 2020. PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT

21. On 20 March 2020, the Appellant filed a Statement of Appeal with the CAS in accordance with Article 58 of the FIFA Statutes and Articles R47 and R48 of the Code of Sports-related Arbitration (2019 edition) (the “CAS Code”).

22. In her Statement of Appeal, the Appellant requested the case to be submitted to a Sole Arbitrator “due to the low amount in dispute”.

23. On 31 March 2020, both the Respondents objected to the submission of the matter to a sole arbitrator. The Respondents, inter alia, stated that the present matter is complex and combines the issues of insolvency proceedings, duty of diligence of a creditor within said proceedings and sporting succession of clubs.

24. On 31 March and 1 April 2020, the CAS Court Office acknowledged receipt of both the Respondents’ letters of 31 March 2020 in which they objected to submit the matter to a sole arbitrator.

25. On 1 April 2020, the Appellant clarified that the present case does not deal with complex factual and legal questions linked to insolvency proceedings nor the diligence of a creditor within said proceedings. The Appellant submitted that these matters fall outside to scope of the present arbitration as the case is “based entirely on the application of Article 64 of the 2011 FIFA Disciplinary Code, which does not deal with “bankruptcy” issues”. In relation to the objection to the appointment of a Sole Arbitrator, the Appellant referred to CAS 2017/A/5460.

26. On 3 April 2020, the Second Respondent stated that “Appellant’s prompt reaction underlines the significance and sensitivity of the factual and legal questions at stake”. For that reason, the Second Respondent reiterated its preference for a panel of three arbitrators to decide the matter.

27. On 15 April 2020, the Parties were informed that the President of the CAS Appeals Arbitration Division appointed Mr Frans de Weger as Sole Arbitrator in accordance with Article R54 of the CAS Code.

28. On 19 May 2020, the CAS Court Office acknowledged receipt of the Appellant’s Appeal Brief submitted on 17 May 2020 via e-filing, and invited the Respondents, pursuant to Article R55 (1) of the CAS Code, to submit their Answer. In her Appeal Brief, the Appellant requested the CAS to rule that “this matter is exclusively disciplinary, as it concerns predominantly the disciplinary issue of deduction of points” and “thus shall be subject to the provision of Article R65 of the Code”.

29. On 4 June 2020, 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 Arbitral Tribunal appointed to hear the case was constituted as follows:

➢ Sole Arbitrator: Mr Frans de Weger, Attorney-at-Law, Haarlem, the Netherlands

30. On 26 June 2020, the Parties were informed by the CAS Court Office that the Sole Arbitrator would render his decision on the application of Articles R64 and R65 of the CAS Code upon receipt of the Respondents’ Answers.

31. On 6 and 13 July 2020 respectively, the Second Respondent and the First Respondent filed their Answer in accordance with Article R55 of the CAS Code.

32. On 14 July 2020, the CAS Court Office informed the Parties that it acknowledged receipt of the Answers. Per that same letter, the Parties were informed, in accordance with Article 56 of the CAS Code, that they were not authorized to supplement or amend their requests or their argument, nor to produce new exhibits, not to specify further evidence on which they intended to rely, after the submission of the Appeal Brief and of the Answer. Furthermore, the CAS Court Office invited the Parties whether they preferred a hearing to be held in this matter.

33. Per email of 14 July 2020, the Appellant informed the CAS Court Office that “given the new evidence and arguments presented by the Respondents with the Answers, which were not submitted to and assessed by the previous instance, as well as that the parties have called witnesses to be heard by the Panel, the Appellant deems necessary to hold a hearing by videoconference”. Alternatively, the Appellant requested for a second round of written submissions.

34. On 21 July 2020, the Second Respondent informed the CAS Court Office that it wishes that a hearing in person would be held in this matter.

35. On the same day, the First Respondent informed the CAS Court Office that “in view of the detailed written submissions filed by the parties, we are of the opinion that holding a hearing is not necessary. We therefore kindly request the Panel to issue its decision on the basis of the parties’ written submissions”.

36. On 23 July 2020, the CAS Court Office informed the Parties that the Sole Arbitrator decided that, after a thorough review of the file and the Appellant’s submissions in respect of the applicable rules of the CAS Code, that Article R64 of the CAS Code shall apply in this matter and that the grounds of this decision will be given in the final award. Furthermore, the Parties were informed that the Sole Arbitrator decided that a hearing will be held. Due to the current situation regarding the COVID-19 outbreak, the Sole Arbitrator decided that the hearing will be held by video-conference.

37. On 3 August 2020, the Appellant submitted an additional document to the file for the Sole Arbitrator to consider when deciding in the present matter. The document concerned a “very recent non-confidential award in case CAS 6461 for the attention of the Sole Arbitrator, which is relevant to the case”.

38. On 6 August 2020, the Appellant informed the CAS Court Office per email that it took note of the objection of the First Respondent to the standing to appeal based on the discontinuation of the registration of the Appellant as an intermediary with the Fédération Française de Football (“FFF”) after the abolishment of the FIFA player agents’ licensing system as of 1 April 2015. Following the Appellant, this constituted “exceptional circumstances” under Article R56 of the CAS Code, allowing the Appellant to adduce tangible evidence to rebut the First Respondent’s arguments. In this regard, the Appellant submitted (i) “Confirmation issued on 6 August 2020 by the FFF, confirming that the Appellant has been registered with FFF as a player agent since 25 May 2020 discontinuously” and, (ii) “A copy of the Appellant’s current player agent’s license issued by the FFF for the 2019/2020 season”.

39. Per letter of 7 August 2020, the CAS Court Office informed the Respondents that they were granted a deadline until 17 August 2020 to submit their comments in respect of the additional submitted documents by the Appellant.

40. Per letter of 10 August 2020, the CAS Court Office confirmed that the hearing was going to be held by video-conference on 2 September 2020.

41. On 11 August 2020, the Appellant informed the CAS Court Office that it noted that the First Respondent relied on evidence which is to be considered confidential, and the Second Respondent did not obtain the permission of the relevant person to use it in the present proceedings. Therefore, the Appellant requested the Sole Arbitrator to exclude the evidence (Exhibits 6 and 7 of the First Respondent’s Answer) from the case file.

42. On the same day, the Appellant informed the CAS Court Office that it noted that the Second Respondent also relied on confidential documents, an Answer of the First Respondent, which was used in another procedure before the FIFA DC involving the son of Appellant and should be considered confidential by virtue of Article R59 (7) of the CAS Code. Therefore, the Appellant requested the Sole Arbitrator to exclude the evidence (Exhibits BB1, U and SS of the Second Respondent’s Answer) from the case file.

43. On 21, 24 and 28 August 2020 respectively, the Appellant, the First Respondent and the Second Respondent returned duly signed copies of the Order of Procedure to the CAS Court Office.

44. On 24 August 2020, the First Respondent provided the CAS Court Office with its comments to the new submissions of the Appellant, stating, inter alia, that there are no exceptional circumstances justifying the belated filing of the evidence in relation to the registration as an intermediary, that was at the Appellant’s disposal. In relation to the alleged confidential documents, the First Respondent stated, inter alia, that the Appellant failed to identify that “there is a pragmatic or legal reason why the Respondents should be excluded nor deemed to have breached any otherwise-applicable duty to confidentiality”.

45. On 26 August 2020, the CAS Court Office informed the Parties that the Sole Arbitrator has decided that:

➢ The Appellant’s email of 3 August 2020 and its attachment (award CAS 2019/A/6461) are admitted to the file, also taking into account the absence of objection from the side of the Respondents in this regard. The Respondents will have the possibility to rebut the Appellant’s position during the hearing.

➢ The Appellant’s email of 6 August 2020 and her attachments are admitted to the file as they might be of relevance with respect to the issue of the Appellant’s standing to appeal. The Respondents will be allowed to rebut the Appellant’s position during the hearing.

➢ The Appellant’s request contained in her emails of 11 August 2020 requiring the exclusion – for confidentiality reasons – of several documents submitted by the Respondent is denied and those documents are admitted to the file.

➢ Furthermore, the Sole Arbitrator observed that the Appellant calls Mr Cavaliero as a witness considering that Mr Cavaliero is also Counsel for the Second Respondent. In this regard, the Sole Arbitrator informed the Parties that it allowed the Appellant to hear Mr Cavaliero. However, the Sole Arbitrator underlined that Mr Cavaliero can only be heard in his capacity of former Head of FIFA Disciplinary Department and that any questions regarding his testimony during the hearing must be strictly limited to this extend.

➢ Finally, the Sole Arbitrator also noted the First Respondent’s remark according to which “we wish to point out that the Second Respondent’s inclusion in the present case file of a document exclusively pertaining to another CAS procedure as is its Exhibit SS (containing an excerpt of FIFA’s answer in CAS 2018/A/5647), contravenes Article R59 CAS Code8 and should not be admitted to the case file. Should the document be nevertheless admitted, FIFA reserves its right to elaborate the reasons why said document is irrelevant in the context of the present proceedings. In this regard, the Second Respondent was invited to file its comments no later than 31 August 2020.

➢ The Parties were informed that the grounds for the above-mentioned decisions will follow in the final arbitral award.

46. On 31 August 2020, the Second Respondent submitted its comments to the decision of the Sole Arbitrator as communicated in the letter of 26 August 2020, and stated, inter alia, that the evidence is not considered confidential information. It solely contains legal considerations in respect to bankruptcy proceedings of the Original Debtor in the case before the Sofia City Court and its legal consequences for possible disciplinary proceedings against it or any third party. In addition, the Second Respondent states that the evidence is already public knowledge due to the fact that the CAS award 2018/A/5647 makes a detailed representation of the position of FIFA.

47. On the same day, the First Respondent submitted its comments to the Answer of the Second Respondent stating that the Second Respondent’s arguments in which it is seeking to challenge the Appealed Decision’s conclusion on the matter of sporting succession constitute a counterclaim and should therefore have been raised in a separate appeal. In this regard, the First Respondent requested that, in application of Article R55 of the CAS Code, the Second Respondent’s section in relation to the sporting succession should be excluded.

48. Furthermore, also on 31 August 2020, the Appellant submitted the FIFA Disciplinary and Ethics Report 2019/2020 to the case file.

49. Also, per email of 31 August 2020 to the CAS Court Office, the Appellant drew the attention to the fact that she has called Mr Genadi Stoyanov Vuchkov as witness to testify about the facts alleged in relation to him. However, the Appellant noted that, in the respective Answers, the Respondents did not address Mr Vuchkov’s appearance as a witness of fact and did not dispute the facts alleged in relation to him. As such, the Counsel for Appellant asked the Respondents to inform him by the next day 17:00 CET “(i) if they are disputing the facts alleged in relation to Mr. Vuchkov put forward in paras. 140-142 of the Appeal Brief and, if not, (ii) whether the Respondents would like to cross-examine Mr. Vuchkov. Only in case of negative answers to both questions from both Respondents, the Appellant will drop Mr. Vuchkov as a witness of fact. Otherwise, she will remain him as a witness”. Moreover, the Appellant expressed her notice that “the Second Respondent has relied on witness statements from Mr. Trifon Popov (exhibit FF) and MR. Ivan Velchev (GG) in its Answer, but has not summoned both gentlemen to be heard by the Sole Arbitrator and cross-examined by the Appellant. As such, those witness statements should, in principle, be disregarded by the Sole Arbitrator based on Article 4.7 of the IBA Rules on the Taking of Evidence in International Arbitration. Nevertheless, the Appellant does not dispute the correctness of the contents of those witness statements and is inclined to keep then on the case file”.

50. On 1 September 2020, the CAS Court Office informed the Parties that the Sole Arbitrator ruled that:

➢ The Answer submitted in the case CAS 2018/A/5647 shall not be admitted to the file. Although the arbitral award rendered in such matter is public, all elements of the file are confidential pursuant to Article R59 of the Code and shall not be produced in another matter. Any further grounds will follow in the final arbitral award.

➢ With respect to the First Respondent’s argument that the Second Respondent’s challenge of the conclusion set out in the Appealed Decision regarding the sporting succession constitutes a counterclaim, the Sole Arbitrator has duly noted the Parties’ arguments on such issue. Notwithstanding the foregoing, the Parties will be allowed to address this question at the outset of the hearing, if they so wish.

➢ Finally, as regards the Disciplinary and Ethics Report produced by the Appellant, the Respondents will be allowed to comment on the admissibility on the aforesaid document at the outset of the hearing.

51. On the same day, the Second Respondent informed the CAS Court Office that it “will develop at the hearing the reasons why its observations do not withstand scrutiny, since the file on record shows that Second Respondent has not lodged a counterclaim”. Further to this, the First Respondent informed the CAS Court Office that it did not feel compelled “to answer to deadlines set forth by Appellant’s Counsel, who bears the responsibility to ensure the presence of the witnesses Appellant called”.

52. In addition to the Sole Arbitrator and Mr Fabien Cagneux, Counsel to the CAS, the following persons attended the hearing by video-conference on 2 September 2020:

a) For the Appellant

1) Mr Georgi Gradev, Counsel

b) For the First Respondent

1) Mr Miguel Liétard Fernández-Palacios, Director of Litigation

2) Mr Jaime Cambreleng Contreras, Head of Litigation

c) For the Second Respondent

1) Mr Marc Cavaliero, Counsel

2) Ms Carol Etter, Counsel

53. The Sole Arbitrator heard evidence from Mr Marc Cavaliero, in his position as former Head of FIFA’s Disciplinary Department, as a witness called by the Appellant, and from Ms Dora Zlateva Mileva-Ivanova, Judicial Administrator of the Original Debtor, as a witness called by the Second Respondent.

54. The Parties had full opportunity to examine the witnesses, Mr Marc Cavaliero, and Ms Dora Zlateva Mileva-Ivanova, to present their case, submit their arguments and answer the questions posed by the Sole Arbitrator.

55. Before the hearing was concluded, the Parties expressly stated that they did not have any objection with the procedure adopted by the Sole Arbitrator and their right to be heard had been respected.

56. The Sole Arbitrator confirms that it carefully heard and took into account in its decision all of the submissions, evidence, and arguments presented by the Parties, even if they have not been specifically summarised or referred to in the present arbitral award. SUBMISSIONS OF THE PARTIES

57. The following summary of the Parties’ positions is illustrative only and does not necessarily comprise each and every contention put forward by the Parties. The Sole Arbitrator, however, has, for the purposes of the legal analysis which follows, carefully considered all the submissions made by the Parties, even if there is no specific reference to those submissions in the following summary.

THE APPELLANT

58. On 17 May 2020, the Appellant filed its Appeal Brief pursuant to Article R51 of the CAS Code. This document contained a statement of the facts and legal arguments. The Appellant challenged the Appealed Decision, submitting the following requests for relief:

“Ruling on a preliminary basis

1. Determine that the present case shall be subject to the provisions of Article R65 of the Code, and the advance of costs paid by the Creditor to CAS shall be reimbursed to her.

Ruling de novo

2. Set aside and annul the decision issued on 12 February 2020 by a member of the FIFA Disciplinary Committee in [the Appealed Decision].

3. Determine that [the Club]¸PFC CSKA-Sofia:

(iii) should be held liable for the debt by [the Original Debtor], PFC CSKA Sofia, deriving from the decision passed by the Single Judge of the FIFA Players’ Status Committee in case 13-01088; and

(iv) is responsible for complying with such a financial decision.

4. Refer the matter back to the FIFA Disciplinary Committee, ordering it to proceed further with the execution of paragraph 4 of the operative part of the decision issued on 10 March 2015 by the FIFA Disciplinary Committee in [the Appealed Decision], i.e. the deduction of six points from the first team of [the Club], PFC CSKA-Sofia, in the domestic league.

Alternatively, if item 4 above is rejected

5. Issue a new decision against [the Club], PFC CSKA-Sofia, imposing the sanctions the Sole Arbitrator deems appropriate under Article 15 of the 2019 FDC or Article 64 of the 2011 or 2017 FDC.

More alternatively, if item 4 and 5 above are rejected

6. Refer the present case back to the FIFA Disciplinary Committee, ordering it to issue a new decision against [the Club], PFC CSKA-Sofia, imposing the sanctions the FIFA Disciplinary Committee deems appropriate under Article 15 of the 2019 FDC or Article 64 of the 2011 or 2015 FDC.

In any event:

7. Order the Respondents to bear any costs incurred with the present procedure.

8. Order the Respondents to pay the Appellant a contribution towards her legal and other costs in an amount to be determined at the decision of the Sole Arbitrator.”

59. The Appellant’s submissions, in essence, may be summarised as follows:

➢ As to her standing to invoke Article 64 of the FIFA Disciplinary Code / Article 15 of the FIFA Disciplinary Code 2019, the Appellant stated that even though the Appellant lost her license as a football agent after the legislative change of FIFA on 1 April 2015, she was duly licensed as a player agent by the FFF at the time of lodging the claim to FIFA. Therefore, she was undisputedly a part of the “football family” and satisfied FIFA’s definition of a “licensed player agent” when the claim was filed on 23 January 2013.

➢ Referring to CAS jurisprudence (inter alia CAS 2012/A/2983 and CAS 2016/A/4426), the Appellant held that a party should be subjected to the jurisdiction of FIFA at the moment when the claim is lodged. The loss of the license can in any event not be decisive because FIFA unilaterally decided to abandon the licensing system for players’ agents/intermediaries and therefore unilaterally decided that players’ agents/intermediaries are no longer (in)direct members of FIFA. Accordingly, the Appellant concluded that the member of FIFA DC had correctly determined that he was competent to issue the Appealed Decision and that the Appellant had standing to invoke Article 64 of the FIFA Disciplinary Code 2011 or 2017/Article 15 of the FIFA Disciplinary Code 2019.

➢ Regarding the sporting successorship of the Club, the Appellant maintained that “the sporting successor of a former, no longer existing club can, as a matter of principle, be liable to meet the financial obligation of that former club notwithstanding that the successor is not a party to any agreement, arrangement of understanding pursuant to which the financial obligation arose or a privy of any of the parties to any such agreement, arrangement or understanding and regardless of whether there has been a change of management or corporate structure or ownership of the club in question”. In continuation, “even if the Second Respondent is to be deemed the legal successor of the entity, PFC Litex Lovech, it is not the sporting successor of the football club, PFC Litex Lovech”.

➢ The Appellant further argued that, with the assets purchased by the Second Respondent through an ancillary company, it continued the activity formerly developed by the Original Debtor with the same image, badge, representative colours, emblems, placement, they share the same history and sporting achievements, etc., and is participating in the BFU competitions replacing the Original Debtor. Therefore, there is a commercial, structural, sporting and historical link between the Original Debtor and the Second Respondent. For the same reasons, the Second Respondent should be considered as the sporting successor of the Original Debtor. The Original Debtor is trying to circumvent its financial obligations through the creation of a new company, i.e. the Second Respondent, with the active support of the BFU and FIFA. These actions cannot be accepted in football since they infringe upon the integrity of competitions, and the concept of fair play, are a detriment to players and other clubs and contravene the Statutes of FIFA.

➢ The Appellant stressed that, if permitted “such actions would create a precedent, in which clubs are rewarded by acting in bad faith when they clear their balance sheet and continue their business as though nothing happened”.

➢ Furthermore, the Appellant refers to several decisions of the FIFA DC in which was decided that the Second Respondent is to be considered the sporting successor of the Original Debtor. In this regard, the Appellant stresses that, although there is no principle of binding precedent or stare decisis, the Sole Arbitrator should come to the same conclusions on issues already decided by FIFA based on the same set of facts. FIFA rulings constitute a valuable set of case law and enforce legal predictability in sports law at the international level. The decisions help to develop legitimate expectations among sports bodies.

➢ In relation to the question whether the FIFA DC was estopped from reopening the case on the merits and reviewing and dismissing the charges against the Second Respondent, the Appellant concludes that the Appealed Decision is contrary to the doctrine of res judicata and procedural public policy, which “yields its nullity”. The Appealed Decision essentially concerns the same parties, the same object, and the same claim as in the First DC Decision. In particular, given that the Appellant’s request for the imposition of sanctions on the Original Debtor under Article 64 of the FIFA Disciplinary Code 2011 for failure to comply with the 2013 PSC Decision was already considered as to its substance and finally decided by the FIFA DC in the First DC Decision.

➢ The First DC Decision also binds the Second Respondent based on res judicata. The doctrine of res judicata generally states that the parties must be the same in the two sets of proceedings for the doctrine to apply. Even where the parties in the different proceedings are not identical, res judicata issues may arise if it can be said that two of the parties are so closely related that they are privies. In continuation the “rule of privity prescribes that the only persons that are bound by a decision, and hence can take advantage of its preclusive effects, are the parties to the proceedings from which the decision derived or their privies. Therefore, res judicata may also be invoked against privies”.

➢ In addition, the Appellant raises the plea of claim preclusion, i.e. cause of action estoppel which prevents a party asserting or denying the existence of a particular cause of action, the non-existence or existence of which has been determined by a court of competent jurisdiction in previous litigation between the same parties or their privies. The Second Respondent is therefore prevented from denying the existence of cause of action, i.e. the failure to comply with the 2013 PSC Decision by the Original Debtor and the FIFA DC was estopped from dismissing the charges against the Second Respondent for the lack of a particular cause of action. Consequently, the Second Respondent must comply with both the 2013 PSC Decision and First DC Decision and pay the relevant amount to the Appellant, which is res judicata. The FIFA DC had no valid reason to dismiss the charges against the Second Respondent, which “is the sporting successor/privy of the Original Debtor”.

➢ In continuation whether the FIFA DC had the right or legal basis for closing the proceedings the First DC Decision, the Appellant argued that the member of the FIFA DC made “a terrible mistake” when he applied the findings of CAS 2011/A/2646, i.e. the Rangers de Talca case to the matter at stake as the FIFA DC already decided on sanctions against the Original Debtor well before the Sofia City Court opened the insolvency proceedings against the Original Debtor. In addition, the FIFA Disciplinary Department did not deal with the matter with the necessary expediteness and the delay of proceedings caused by FIFA contributed to the Appellant not being able to collect her debt from the Original Debtor before the insolvency proceedings started. On these grounds, the FIFA DC had no right or legal basis for closing the proceedings in case the Appealed Decision.

➢ The Appellant continued that “[i]n cases like the one at hand, the creditor is requesting the Disciplinary Committee (and CAS, respectively) to turn its attention away from the original debtor (a football club) and instead to put pressure on its apparent successor (a football club) to pay the original debtor’s debt to the creditor. In such a situation, it makes no (common) sense FIFA (and CAS, respectively) to expect from the creditor of a football club form a different country to investigate first the legal possibilities in the debtor’s country to collect his/her credit from the management company of the football club through insolvency or bankruptcy proceedings, conducted under a complex national legal framework. That would be excessively burdensome for the creditor, would be contrary to FIFA’s aim to regulate “clubs” and not “administrating companies,” would deprive Article 64 FDC/Article 15 of the 2019 FDC of its rationale and practical application entirely to the detriment of the creditors, and ultimately may result in the closing of the proceedings instigated by FIFA under Article 64 FDC/Article 15 of the 2019 FDC”.

➢ In relation to her diligence in the insolvency proceedings, the Appellant indicates that it is grossly unfair to hold her liable for lack of diligence when she has not received an “individual notice” in accordance with the mandatory legal framework in the European Union (Council Regulation (EC) No. 1346/2000 of 29 May 2000) and when there was and is no theoretical possibility whatsoever for the Appellant to recover her claim in the insolvency proceedings of the Original Debtor. Other known foreign creditors that have received decisions from the FIFA judicial bodies against the Original Debtor, have received an “individual notice”. However, the Appellant did not. In this respect, the judicial administrator, who notified the opening of insolvency proceedings to some known foreign creditors compromised the principle of equal treatment of the creditors, which is a “cornerstone” of insolvency proceedings around the world. Under these circumstances, it would be “manifestly contrary to good faith and is even shocking to impute to the Creditor any “lack of diligence” in collecting her credit in the insolvency proceeding of the original Debtor”.

➢ Moreover, even if the Appellant would have filed her claim at the insolvency procedure, it was abundantly clear that she would never have recovered the amounts due under the 2013 PSC Decision through the insolvency procedure. Indeed, she would have taken upon herself the whole structure of that system, including the understanding that she cannot impose on the Second Respondent a payment using external venues out of the insolvency proceedings, and thus FIFA would have had legitimate grounds to avoid the possibility of using parallel venues of enforcement and even to close the proceedings. Following the Appellant, it is obvious that such recourse would not have been feasible in this case because it would have put the Appellant in great uncertainty and would have deprived her of the right to invoke Article 64 of the FIFA Disciplinary Code 2011 or 2017/Article 15 of the FIFA Disciplinary Code 2019. Hence, the participation in the insolvency procedure of the Original Debtor would have been manifestly contrary to the interests of the Appellant. Under these circumstances, it is completely incomprehensible that the member of the FIFA DC blamed the Appellant for lack of diligence.

➢ Furthermore, neither Article 64 FIFA of the Disciplinary Code 2011 or 2017 nor Article 15 of the FIFA Disciplinary Code 2019 impose a duty on the creditor of a football club to examine, let alone to pursue, the options to recover his/her credit through insolvency or bankruptcy proceedings governed by the respective procedures provided for by national law as a mandatory prerequisite. On the contrary, such recourse by a creditor would entail the application of the principle of electa una via non datum recursus ad alteram and may result in the closing of the proceedings by FIFA.

FIRST RESPONDENT

60. On 13 July 2020, the First Respondent filed its Answer in accordance with Article R55 of the CAS Code, submitting the following requests for relief:

“(a) Rejecting the appeal on the merits;

(b) Confirming the Appealed Decision;

(c) Ordering the Appellant to bear the full costs of these arbitration proceedings.”

61. The submissions of the First Respondent, in essence, may be summarised as follows:

➢ Regarding the standing to appeal of the Appellant, the First Respondent submits that the Appellant plainly lacks legitimate interest with respect to the relief she is seeking in these proceedings as her interest is certainly not “actual”. It is evident that the Appellant does not hold any right to obtain the relief she is seeking as she can no longer be considered an (in)direct member of FIFA. While it is true that FIFA changed the licensing system for players’ agents in April 2015, this did not impede the Appellant from continuing to be included within the “football family”. The centralised registration system was simply replaced with a de-localized registration system delegated to each FIFA member association by means of which intermediaries could continue to operate within the football ecosystem. The Appellant ceased out of her own free will to be under FIFA’s umbrella ever since she decided not to register as an intermediary. As confirmed by the SFT, “the interest [...] must exist not only at the time the appeal is made but also when the decision is issued [...] However, if the interest disappears during the proceedings, the appeal becomes moot”. In conclusion, the Appellant lacked locus standi and, as a result, her appeal must be dismissed as the minimum procedural requirements to proceed with the current appeal have not been met.

➢ As to the absence of res judicata, the First Respondent is of the opinion that the FIFA DC correctly decided to pass the Appealed Decision against the Second Respondent despite the fact that the First DC Decision had already been taken against the Original Debtor. While the sporting succession may be relevant in order to determine that a club is responsible for the debts of an original debtor on the basis of a previous decision, it does not, nor can cause any legal effects with respect to the disciplinary measures imposed on the predecessor, in light of the sporting successor being considered a new party which is ordered to assume the financial obligations of the former (disaffiliated) club. The FIA DC therefore rightfully resumed the disciplinary proceedings that had been suspended and analysed the facts that occurred after the First DC Decision was taken.

➢ In relation to the sporting succession, the FIFA DC rightfully concluded that the Second Respondent is the sporting successor of the Original Debtor as it cannot be deemed the successor of Litex-Lovech, nor a new club and has sought to succeed in the Original Debtor in the eyes of the general public as it shares the name, history, titles and sporting achievements, colours, logo, registered address, stadium and internet domain as the Original Debtor.

➢ FIFA is obliged to take into consideration and respect the decisions of the national State Courts as well as the laws of the States regarding insolvency proceedings, since said proceedings are within the exclusive jurisdiction of the State Court. The system created around Article 64 of the FIFA Disciplinary Code cannot be blind to the surrounding legal system and has to abide by the rules and general principles of law. Since the relationship between associations and its members is uniquely governed by private law, the latter cannot disregard an overriding public interest such as the one protected by domestic insolvency laws. Therefore, Appellant was bound to follow the rules established at domestic level and applied by the Sofia City Court, exactly in the same way as all the other creditors of the Original Debtor. Regardless of the complexity of said proceedings or how distant the relevant country of the debtor may be, the procedures established in insolvency laws have to be mandatorily followed.

➢ Regarding the diligence of the Appellant, the First Respondent states that the Appellant never took any action to register her claim, despite she had learned of the existence of the insolvency proceedings, “at the latest, as a result of FIFA’s letter of 13 October 2015”. The Appellant, as a creditor, bore the responsibility to seek first-hand information concerning the insolvency proceedings in which she was involved if she wanted to recover her debt. Had the Appellant registered her claim in the insolvency proceedings, she would have been deemed to have fostered the recovery of her debt and would have acted in a sufficiently diligent manner that would have most probably changed the outcome of the Appealed Decision. Furthermore, in view of the many similarities with CAS 2011/A/2646 i.e. the Rangers de Talca case, the First Respondent believes that it is perfectly justified to follow the same approach or at least, give it a considerable weight to it in order to conclude that the Appellant was not diligent and therefore, by her inaction, contributed to the breach of Article 64 of the FIFA Disciplinary Code and thereby making it impossible to sanction the Second Respondent for it.

SECOND RESPONDENT

62. On 6 July 2020, the Second Respondent filed its Answer in accordance with Article R55 of the CAS Code, submitting the following requests for relief:

“Prayer 1: The Appeal shall be rejected and the decision of the FIFA Disciplinary Committee shall be confirmed in its entirety.

Prayer 2: [The Appellant] shall be ordered to bear the costs of the arbitration and she shall be ordered to contribute to the legal fees incurred by [the Club] at an amount of CHF 20,000.”

63. The submissions of the Second Respondent, in essence, may be summarised as follows:

➢ FIFA did not have jurisdiction to hear the case of the Appellant. Article 15 of the Disciplinary Code 2019/Article 64 of the Disciplinary Code 2017 lists the persons who are entitled to make use of the “enforcement procedure” implemented at FIFA to ensure compliance with a FIFA or CAS decision. Since May 2015 and the newly introduced FIFA Regulations on Working with Intermediaries, the FIFA PSC may not hear disputes between agents/intermediaries and clubs or players. As a consequence, agents are no longer entitled to make use and take advantage of the system implemented at FIFA for a claim based on a FIFA PSC decision. In addition, the Appellant is not a licensed agent/intermediary anymore and was also not at the time she requested the opening of disciplinary proceedings against the Club. Therefore, the Appellant does not fall under the jurisdiction of FIFA anymore. For this reason, the FIFA DC was prevented from hearing the request for enforcement lodged by the Appellant.

➢ Even if FIFA had jurisdiction to hear the case, the case was time-barred. It follows from Article 10 of the FIFA Disciplinary Code that the limitation period of prosecution is five years and runs from the day on which the decision becomes final and binding. By absence of any action within this time-period, Appellant’s request has become time barred already. Therefore, the Appeal should be dismissed.

➢ In addition, the Second Respondent emphasised that the responding party in the procedure in front of the FIFA PSC in 2013 was the Original Debtor. The legal entity of the Original Debtor was declared bankrupt by the competent state court in Bulgaria and initiated proceedings for insolvency. The Second Respondent had no further knowledge of the contractual relationship between the Appellant and the Original Debtor, because it was not involved in this contractual relationship. The Second Respondent never had any contract with the Appellant. The FIFA DC opened disciplinary proceedings against the Original Debtor and not against the Second Respondent. After suspension of the disciplinary proceedings, the FIFA DC opened disciplinary proceedings against the Second Respondent in January 2020. The FIFA DC considered the Second Respondent as the sporting successor of the Original Debtor.

➢ In casu, there is no issue of res judicata in relation to the question whether or not the Second Respondent has to be considered as the sporting successor of the Original Debtor, as this matter has never been discussed and certainly not in the previous decision of the FIFA DC. Consequently, this point cannot be covered by the principle of res judicata leading the Second Respondent being bound by any effect of the previous decision passed against the Original Debtor.

➢ The FIFA DC ignored relevant facts and wrongly considered the Second Respondent as the sporting successor of the Original Debtor. The FIFA DC failed to recognise that the ownership, license, football teams and legal entity of the Second Respondent were all different from the Original Debtor and it was therefore impossible to impose sanctions on the Second Respondent when proper bankruptcy proceedings have been concluded. The Second Respondent has always been fully transparent about its creation and the underlying transaction. The Second Respondent stressed that it is the sporting successor of a third club Litex Lovech. It is therefore impossible that the Second Respondent is also the sporting successor of another club.

➢ FIFA misapplied Article 15 of the FIFA Disciplinary Code 2019/Article 64 of the FIFA Disciplinary Code 2017 as this article does not refer to a case of bankruptcy and cannot apply in case a club went bankrupt and national bankruptcy proceedings have been concluded. Applying said article to a case where proper bankruptcy proceedings were held, the old club stopped competing professionally and no federative rights were taking over to the new club with a new management, violates the principle of legality and principle of predictability.

➢ It is impossible to open disciplinary proceedings against a possible sporting successor in cases of a bankrupt and disaffiliated club. FIFA is in such cases no longer in a position to intervene in the enforcement of claims against the bankrupt entity or any possible “successor”. Whereas the enforcement of monetary claims is a matter of public power that rests within a state’s sole monopoly, FIFA’s enforcement mechanism does not and cannot interfere with this state monopoly.

➢ If a party who is deemed to be the successor of the Original Debtor should be held liable, it would be through the Bulgarian insolvency courts and with respect of equal treatment of all creditors. A common practice has been established by the CAS and FIFA itself that a club undergoing bankruptcy proceedings is legally not capable of complying with a FIFA decision. Going against a possible “sporting successor” when proper bankruptcy proceedings under the supervision of a national insolvency court run its course of action, is, according to FIFA itself, impossible, and contrary to its constant practice.

➢ Even if the Second Respondent is considered the sporting successor of the Original Debtor, the Appellant would not have upheld her duty to participate in the bankruptcy proceedings. In this regard, the Second Respondent emphasised that the bankruptcy proceedings of the Original Debtor are still ongoing and the Sofia Civil Court as well as the appointed trustees remained exclusively competent. Consequently, the Original Debtor is still able to fulfil its financial obligations towards its creditors and therefore also towards the Appellant.

➢ The Appellant omitted to list her claim in the national bankruptcy proceedings. It is the obligation of any creditor to follow his credit and take all appropriate measures to ensure he would not lose his/her entitlement. The Appellant knew about the decision of the Sofia Civil Court that declared the Original Debtor bankrupt, she even had the contact person for the specific court case with all contact information such as the address and telephone number. The Appellant remained however completely passive and failed to take any steps withing the bankruptcy proceedings. Her stance in these proceedings should be seen as a desperate attempt to cover her shortcomings and failure not to have registered herself as a creditor, while she had the opportunity to do so. The Appellant finds that she “simply did not undertake any step with the Original Debtor”.

➢ The claim she was not informed according to the European Insolvency Regulation fails. According to the books that were found with the Original Debtor, she was not a creditor. The Appellant failed to establish, let alone prove that she was a known creditor according to the books that were in the possession of the bankruptcy trustee and that even if she had the quality of a creditor that it was also apparent to the bankruptcy trustee that she does not reside in Bulgaria. Consequently, no breach of not contacting a known creditor may apply in any event. Furthermore, it is clear from the rationale of the European Insolvency Regulation that it is to ensure that foreign creditors are informed about on-going bankruptcy proceedings. Appellant had all the relevant information received directly in addition to publicly known information that one of the most prestigious clubs in Bulgaria was going into bankruptcy proceedings. The Second Respondent claims that to “now just say that the absence of notification according to Article 40 and 42 of the European Insolvency Regulation was the reason why she could not participate in the bankruptcy proceedings, is absolutely unworldly”. JURISDICTION

64. Article R47 of 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 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.”

65. The jurisdiction of CAS derives from Article 49 of the FIFA Disciplinary Code 2019:

“Decisions passed by the Disciplinary and Appeal Committees may be appealed against before CAS, subject to the provisions of this Code and articles 57 and 58 of the FIFA Statutes.”

66. The jurisdiction of CAS to hear the appeal filed by the Appellant against the Appealed Decision is not disputed and is further contemplated by the Statutes of FIFA in the following terms:

Article 57 “Court of Arbitration for Sport (CAS)”

“1. 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.

2. The 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.”

Article 58 “Jurisdiction of CAS”

“1. 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 within 21 days of notification of the decision in question.

2. Recourse may only be made to CAS after all other internal channels have been exhausted. […].”

67. The jurisdiction of CAS is further confirmed by the Orders of Procedure duly signed by the Parties.

68. It follows that CAS has jurisdiction to decide on the present dispute. ADMISSIBILITY

69. Article R49 of the CAS Code provides as follows:

“In the absence of a time limit set in the statutes or regulations of the federation, association or sports-related 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. When a procedure is initiated, a party may request the Division President or the President of the Panel, if a Panel has already been constituted, to terminate it if the statement of appeal is late. The Division President or the President of the Panel renders her/his decision after considering any submission made by the other parties.”

70. The Sole Arbitrator notes that pursuant to Article 58 (1) of the FIFA Statutes, the time limit to file an appeal is 21 days of receipt of the Appealed Decision.

71. The grounds of the Appealed Decision were communicated to the Parties on 20 March 2020. The Appellant filed the Statement of Appeal with CAS on 20 March 2020 and filed its Appeal Brief on 17 May 2020, i.e. within the granted extension of the time limit. The Statement of Appeal further complied with the other conditions set out in Article R48 of the CAS Code.

72. Therefore, the appeal was timely submitted and is admissible. APPLICABLE LAW

73. Article R58 of the CAS Code provides more specifically the following:

“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.”

74. Article 57 (2) of the FIFA Statutes reads as follows:

“The arbitral tribunal shall decide the dispute according to the rules of law chosen by the parties or, in the absence of such a choice, according to the rules of law with which the dispute has the closest connection.”

75. In view of the above provisions, the Sole Arbitrator remarks that the “applicable regulations” are the FIFA Statutes and Regulations, in particular the FIFA Disciplinary Code (2019 edition), with Swiss law applying to fill in any gaps or lacuna within those regulations.

76. Further to this, the Sole Arbitrator observes that the Appellant refers to EU law (Council Regulation (EC) No. 1346/2000 of 29 May 2000) in order to support her position as well as that the Second Respondent submits that “in matters relating to national bankruptcy proceedings, the Bulgarian law will be applicable”.

77. The Sole Arbitrator is in the position to apply EU law as well as Bulgarian law on a subsidiary basis, but only insofar as it would concern issues in relation to the insolvency procedure. However, as shown below, the Sole Arbitrator ultimately did not consider it necessary to apply Bulgarian law or EU law to the present dispute. MERITS

A. The Main Issues

78. The main issues to be resolved by the Sole Arbitrator are:

a) Did the Appellant have standing to invoke Article 64 FIFA Disciplinary Code?

b) Was the appeal of the Appellant time-barred?

c) Did the FIFA DC rightfully analyse the merits in light of res judicata?

d) Is the Second Respondent the sporting successor of the Original Debtor?

e) Did the Appellant act with due diligence in the insolvency proceedings?

B. Preliminary points

79. Before turning to the examination of those issues, the Sole Arbitrator has to address preliminary points, which were raised by the Parties in the course of the arbitration.

80. The preliminary points are related to the submission of various documents and exhibits by the Parties and whether exceptional circumstances exist in light of Article R56 of the CAS Code. The Sole Arbitrator will now further communicate the grounds for its decisions as to the admittance or not of these documents and exhibits to the present file.

81. The first issue to discuss is the additional document along with the Appellant’s email of 3 August 2020, concerning a “very recent non-confidential award in case CAS 6461 for the attention of the Sole Arbitrator, which is relevant to the case”. As was communicated by the CAS Court Office on 26 August 2020, the Appellant’s email and its attachment (i.e. the award in CAS 2019/A/6461) are admitted to the file, also taking into account the absence of objection from the side of the Respondents in this regard.

82. Against this background, there is no need to further motivate this considering the absence of any objection thereto, but, for the sake of further clarity, the Sole Arbitrator wishes to add that the submission of jurisprudence is not an issue of supplementing one’s argument or producing further evidence. The Appellant merely provided a CAS award that is in the public domain. Therefore, it follows that no question arises as to the application of Article R56 of the CAS Code which would justify excluding the documents (see inter alia CAS 2006/A/1192, para. 51; CAS 2014/A/3679, para. 49).

83. Additionally, on 6 August 2020, the Appellant also sent an email to the CAS Court Office submitting documents regarding her registration as intermediary, in particular (i) “Confirmation issued on 6 August 2020 by the FFF, confirming that the Appellant has been registered with FFF as a player agent since 25 May 2020 discontinuously” and, (ii) “A copy of the Appellant’s current player agent’s license issued by the FFF for the 2019/2020 season”. On 17 and 24 August 2020 respectively, the Second Respondent and First Respondent informed the CAS Court Office that no exceptional circumstances exist justifying the filing of this evidence and, as such, could not be admitted to the file.

84. As was communicated by the CAS Court Office on 26 August 2020, the Sole Arbitrator decided that the attachments as to the Appellant’s registration were admitted to the file as they might be of any relevance with respect to the issue of her standing to appeal.

85. Although the Respondents are right that this issue was partially addressed by the Appellant in her Appeal Brief, the Sole Arbitrator finds it fair to admit these documents to the file, also taking into account that the Respondents, indeed, formally objected to the Appellant’s standing to appeal in its Answer (albeit presumably triggered by the content of the Appellant’s Appeal Brief). Consequently, the Sole Arbitrator finds that exceptional circumstances exist that justify the late filing of these documents, also noting that these documents were, indeed, of relevance for the Sole Arbitrator as to the issue whether the Appellant has standing to appeal, as will be further shown below.

86. Another preliminary issue is related to the request for exclusion for confidentiality reasons from the side of the Appellant of several documents that were submitted by the First Respondent, more specifically Exhibits 6 and 7 of its Answer, which documents contained correspondence in relation to the son of the Appellant. In fact, on 11 August 2020, the Appellant informed the CAS Court Office that she noted that the First Respondent relied on evidence which had to considered as confidential, and the Second Respondent, so the Appellant found, did not obtain the permission of the relevant person to use it in the present proceedings. In this regard, the Appellant requested the Sole Arbitrator to exclude Exhibits 6 and 7 of the First Respondent’s Answer from the file.

87. As was also already communicated by the CAS Court Office to the Parties on 26 August 2020, the Sole Arbitrator decided that this request had to be denied and the respective documents had to be admitted to the file. The Sole Arbitrator will now further explain.

88. Although the Sole Arbitrator finds it questionable to submit such documents from other proceedings in the present arbitration, the Sole Arbitrator remarks that it is not up to the Appellant to request its exclusion. As a matter of fact, it would up to the third party, i.e. the son of the Appellant, to do such request. For the sake of clarity, the fact that the Appellant might have been aware of these documents noting that the third party was her son as well as that Appellant and her son shared the same legal counsel back then, is no argument for the Sole Arbitrator as it still is a third party, and sharing the same legal counsel does not mean, per se, that documents from different clients will be exchanged.

89. The Sole Arbitrator also noted the Appellant’s email of 11 August 2020 to the CAS Court Office stating that the Second Respondent also relied on confidential documents, such as an answer of the First Respondent in another CAS case, as was submitted in the present arbitration. More specifically, the Appellant requested the Sole Arbitrator to exclude Exhibits BB1, U and SS of the Second Respondent’s Answer from the case file.

90. On 31 August 2020, the Second Respondent submitted its comments to the decision of the Sole Arbitrator as communicated in the letter of 26 August 2020, and stated, inter alia, that the evidence as to the answer was not considered confidential information. It solely contained legal considerations in respect to bankruptcy proceedings of the Original Debtor in the case before the Sofia City Court and its legal consequences for possible disciplinary proceedings against it or any third party. Additionally, the Second Respondent stated that the evidence was already public knowledge due to the fact that the CAS award in CAS 2018/A/5647 makes a detailed representation of the position of FIFA.

91. On 1 September 2020, the CAS Court Office, on behalf of the Sole Arbitrator, informed the Parties that the answer submitted in the case CAS 2018/A/5647 (Exhibit SS) would not be admitted to the file. It was communicated that although the arbitral award rendered in such matter is public, all elements of the file are confidential pursuant to Article R59 of the CAS Code and shall not be produced in another matter. This is now confirmed by the Sole Arbitrator, also considering that the First Respondent explicitly objected to the admissibility of such annex by means of its letter of 24 August 2020.

92. As to Exhibits BB1, which contains communication between the Appellant and her current counsel, and Exhibit U, concerning a settlement agreement between the Second Respondent and a player, the Sole Arbitrator will not exclude these annexes from the file. As to Exhibit BB1, the Sole Arbitrator remarks that it contains email correspondence between the Appellant and her counsel. For this reason, the Sole Arbitrator does not see sufficient reason to exclude it from the present file. As to Exhibit U, the Sole Arbitrator finds that the Appellant cannot rightfully claim not to admit said annex to the file. The confidentiality provision in Article 7 of the respective settlement agreement cannot be invoked by a third party, such as the Appellant. In fact, so the Sole Arbitrator finds, it would be up to the respective player, who is a party of the said settlement agreement, to do such a request. However, this is not up to the Appellant.

93. Finally, as regards the Disciplinary and Ethics Report that was submitted by the Appellant per email of 31 August 2020, by means of correspondence of the CAS Court Office by 1 September 2020, the Respondents were allowed to comment on the admissibility on the aforesaid document at the outset of the hearing. By absence of any further objection during the hearing, the Sole Arbitrator has decided to admit it to the file, also taking into account that this report is publicly available and was only published on 27 August 2020 following which the Appellant was not able to submit it any earlier.

94. The Sole Arbitrator can now turn to the substantive points, to be examined in sequence.

Did the Appellant have standing to invoke Article 64 FIFA Disciplinary Code?

95. The Sole Arbitrator notes that the Second Respondent claimed that since the Appellant no longer falls under FIFA jurisdiction as from April 2015, she was not able to take advantage of FIFA’s enforcement mechanism to force the Second Respondent to comply with the 2013 PSC Decision. By the same token, also the First Respondent submits that it is evident that the Appellant does not hold any right to obtain the relief she is seeking as she can no longer be an (in)direct member of FIFA. For this reason, the appeal must be dismissed, so the First Respondent finds. On the other hand, the Appellant holds that, even though she lost her license after the legislative change on 1 April 2015, she was duly licensed as a players’ agent by the FFF at the time of lodging the claim to FIFA on 23 January 2013. In this regard, on 6 August 2020, the Appellant submitted additional evidence, which was admitted to the file, as set out above, by means of a confirmation issued by the FFF and a copy of the Appellant’s current license.

96. The Sole Arbitrator finds, as also rightly decided by the Panel in CAS 2016/A/4426, that entities/persons that are not members of FIFA cannot invoke Article 64 of the FIFA Disciplinary Code since they are not subjected to the various regulations of FIFA. This is reinforced by the exhaustive list of entities/persons enumerated in Article 3 of the FIFA Disciplinary Code that are subjected to the FIFA Disciplinary Code. The Sole Arbitrator, therefore, reiterates that the (in)direct membership of FIFA is imperative for an entity/person to have standing to invoke Article 64 of the FIFA Disciplinary Code.

97. In addition, the Sole Arbitrator emphasises that an entity/person invoking Article 64 of the FIFA Disciplinary Code (edition 2011 or 2017)/Article 15 of the FIFA Disciplinary Code (edition 2019) requires an interest worthy of protection in the enforcement of the specific FIFA decision. As such, (in)direct FIFA members can in principle not invoke this provision in order to urge the FIFA DC to enforce a decision against another member if it concerns a decision in which it does not have a direct and personal interest.

98. Against this background, the Sole Arbitrator finds and wishes to underline that, as a general rule, the FIFA DC may so well dismiss requests to enforce FIFA decisions from entities / persons that are no longer considered as (in)direct FIFA members as those entities / persons are no longer subject to – and recognized by – the regulations of FIFA.

99. The Sole Arbitrator emphasises, in line with the view of the panels in CAS 2016/A/4426 and CAS 2012/A/2983, that the standing of an entity in order to invoke Article 64 of the FIFA Disciplinary Code is in general, also in this case, to be examined at the moment of lodging the claim, as it concerns a formal prerequisite for the validity of the claim.

100. As previously mentioned, the Sole Arbitrator notes that the Appellant submitted on 6 August 2020, additional documents to the case file from which it follows that the Appellant has been registered with the FFF as a players’ agent as from 25 May 2012 until today, which were, as illustrated before, admitted to the file by the Sole Arbitrator.

101. Therefore, applying the general interpretation of the regulatory framework to the specific matter at hand, the Sole Arbitrator takes note that the Appellant was a players’ agent/intermediary registered with the FFF at the moment she requested the FIFA DC to apply Article 64 of the FIFA Disciplinary Code in respect of the Original Debtor and later in respect of the Second Respondent. Even if the Sole Arbitrator was to follow the line of reasoning of the First Respondent that “if the interest disappears during the proceedings, the appeal becomes moot”, it is clear with these documents that Appellant did not lose her “locus standi” and should so not be deprived from her right to appeal.

102. In light of the foregoing, since the Appellant was an (in)direct member of FIFA, the Sole Arbitrator concludes that the Appellant was entitled to invoke Article 64 FIFA Disciplinary Code (edition 2011 or 2017) /Article 15 of the FIFA Disciplinary Code (edition 2019). Therefore, the Appellant has standing to make use of the system implemented by means of Article 64 FIFA Disciplinary Code (edition 2011 or 2017) /Article 15 FIFA Disciplinary Code (edition 2019) and to invoke this provision.

Was the appeal of the Appellant time-barred?

103. The Second Respondent further argued that the claim, having been brought on 19 October 2019, was outside the limitation period of five years, which follows from Article 10 of the (2019 edition of the) FIFA Disiciplinary Code (as clarified during the hearing by the Second Respondent’s counsel), because the limitation period commences on the day on which the decision of the FIFA PSC becomes final and binding. According to the Second Respondent, the Appellant’s claim was time-barred by absence of any action within such time-period, and so her claim was time-barred when she requested the FIFA DC to start proceedings on 19 October 2019. In fact, so the Second Respondent claims, it is undisputed that the 2013 PSC Decision was issued on 28 August 2013 and became final and binding around that time, and, therefore, the enforcement proceedings should have been requested and opened by the Appellant on or before September 2018.

104. The Sole Arbitrator disagrees with the Second Respondent’s argument that the claim was time-barred. In this regard, the Sole Arbitrator refers to paragraph 3 of Article 10 FIFA Disciplinary Code (edition 2019), from which it clearly follows that limitation periods are interrupted by “all procedural acts, starting afresh with each interruption”.

105. On 16 September 2014, the Secretariat of the FIFA DC opened disciplinary proceedings against the Original Debtor, which were suspended on 13 October 2015 given the fact that the Original Debtor was undergoing insolvency proceedings. It was clearly communicated by FIFA on 13 October 2015 that the proceedings were suspended for the duration of the insolvency proceedings of the Original Debtor, and that no further action would be taken for the time being in the scope of the disciplinary proceedings.

106. Given the fact that the FIFA DC suspended the proceedings on 13 October 2015, and taking into account the five years limitation period of Article 10 paragraph 3 of the FIFA Disciplinary Code, the Appellant’s claim was not time-barred. As a consequence, the Sole Arbitrator does not agree that the enforcement proceedings should have been requested and opened on or before September 2018, as claimed by Second Respondent.

107. The Sole Arbitrator finds that the Appellant was fully entitled to request the FIFA DC, by means of her letter of 10 January 2019, to enforce the 2013 PSC Decision on the Second Respondent. As a result of this request, FIFA opened proceedings against the Second Respondent on 22 January 2020. There is no doubt that the Appellant’s claim is so not time-barred, as this clearly falls within the time limitation period of five years.

108. As a final note, the Sole Arbitrator does not want to leave unmentioned that the letter of 16 September 2014 as well as the letter 22 January 2020, both referred to the same reference number, i.e. ‘140544’. This merely indicates, in the Sole Arbitrator’s view, that the disciplinary proceedings that were opened on 16 September 2014 were not closed. As said before, the proceedings were only suspended, as from 13 October 2015.

Did the FIFA DC rightfully analyse the merits of the case in light of res judicata?

109. The Sole Arbitrator observes that the Appellant claims that in light of the final and binding 2013 PSC Decision, this decision should lead to a situation of res judicata.

110. In this context, the Appellant claims that the FIFA DC was, due to the principle of res judicata, estopped from reopening the present case on the merits and, as a consequence, not in the position to review and dismiss the charges against the Second Respondent.

111. In particular, the Appellant grounds this exception on the fact that the FIFA DC only used the denomination of “club” and, therefore only deals with “clubs”. The Appellant’s request for the imposition of sanctions on the Original Debtor under Article 64 of the FIFA Disciplinary Code 2011, for failure to comply with the 2013 PSC Decision, therefore, extends res judicata effects to the Second Respondent, which was already considered as to its substance of the case and finally decided by the First DC Decision.

112. The Sole Arbitrator observes, as also noted by the Appellant, that the concept of res judicata is not codified in the FIFA DC or Swiss law. It is, however, clear that res judicata is part of procedural public policy, and it applies both domestically and internationally (4A_633/2014). As such, the Sole Arbitrator remarks that in accordance to the jurisprudence of the SFT, “il y a autorité de la chose jugée lorsque la prétention litigieuse est identique à celle qui a déjà fait l’objet d’un jugement passé en force (identité de l’objet du litige). Tel est le cas lorsque, dans l’un et l’autre procès, les mêmes parties ont soumis au juge la même prétention en se basant sur les mêmes faits” (which could be freely translated into English: “there is res judicata when the claim in dispute is identical to that which was already the subject of an enforceable judgment (identity of the subject matter of the dispute). This is the case when in both litigations the same parties submitted the same claim to the court on the basis of the same facts”).

113. The Sole Arbitrator points out that the procedural concept of res judicata has two elements: 1) the so-called “Sperrwirkung” (prohibition to deal with the matter = ne bis in idem), the consequence of this effect being that if a matter (with res judicata) is brought again before the judge, the latter is not even allowed to look at it, but must dismiss the matter (insofar) as inadmissible; and 2) the so-called “Bindungswirkung” (binding effect of the decision), according to which the judge in a second procedure is bound to the outcome of the matter decided in res judicata (see CAS 2013/A/3256).

114. It is mainly the second concept which is pertinent in this case.

115. In addition, for the First DC Decision and the Appealed Decision to have the force of res judicata, the Sole Arbitrator underlines that, as also follows from established CAS jurisprudence, the “triple identity check” must be met. The triple identity check consists of the verification of (i) the identity between the parties to the first decision and to the subsequent one, so that if the parties were the same in both cases, the situation of res judicata may come into play; (ii) the identity of objects between the two decisions at stake; and (iii) the identity of the basis (causa petendi) on which the claim is submitted.

116. As referred to by the panel in CAS 2013/A/3380, the Sole Arbitrator wishes to quote the decision rendered in CAS 2006/A/1029, which refers to the triple identity check:

“This Panel notes that the issue to be decided in the present dispute is not whether a Judgement has legal force as soon as it is rendered but whether it has legal force only between the parties in the dispute before the Courts or also in relation to third parties not involved in the dispute. Legal jurisprudence establishes the three elements of a res judicata, namely:

- The same persons – eadem personae;

- The same object – eadem res;

- The same cause – eadem causa petendi.

14. For the exceptio res judicata to be successfully admissible, it is necessary that all three elements be concurrently present. In the absence of one of these elements, it cannot be said that the object is the same – nisi omnia concurrunt, alia res est. The plea of res judicata is founded on the principle of public interest – interest rei publicae ut sit finis litium. It was founded to safeguard the certainty of rights which have already been adjudicated upon and defined by a judgement. Res judicata eliminates the possibility of pending disputes prejudicing the rights which have already been established by a judgement. The principle of res judicata ensures that whenever a dispute has been defined and decided upon, it becomes irrevocable, confirmed and deemed to be just – res judicata pro veritate habetur.

15. The three elements of res judicata are of equal fundamental importance and relevance. The element of the same persons (eadem personae) is therefore as important as the other two elements. Its absence is enough to exclude the plea of res judicata since who was not present in the judicial proceedings, could not be considered as bound by a sentence which has been rendered res judicata”

117. The res judicata effect extends to all the facts existing at the time of the first judgment, whether or not they were known to the parties, stated by them, or considered as proof by the first court (ATF 139 III 126 at 3.1, p. 129). However, the Sole Arbitrator notes that it does not stand in the way of a claim based on a change in circumstance that took place after the first judgment (ATF 139 III 126 at 3.2.1, p. 130 and the cases quoted).

118. The res judicata effect does not extend to the facts after the time until which the object of the dispute could be modified, namely to those which took place beyond the last time when the parties could supplement their statements of facts and evidentiary submissions. Such circumstances are new facts (real nova) as opposed to the facts already in existence at the decisive time, which could not have been invoked in the previous proceedings (false nova), which opened the way to revision (ATF 140 III 278 at 3.3; judgment 4A_603/2011 of November 22, 2011, at 3.1 and the references).

119. In the present case, the Sole Arbitrator finds that the First DC Decision does not extend res judicata effects to the Appealed Decision, as it does not meet the triple identity check in relation to the parties and the facts. The Sole Arbitrator will explain as follows.

120. With regard to the identity test, the Sole Arbitrator is of the opinion that this test is not met in the present case. The Sole Arbitrator notes that after the First DC Decision was rendered, the Original Debtor has gone under insolvency proceedings and the parties are different as the Second Respondent was not a party in the First DC Decision. If there are different parties in the further arbitration proceedings, the prior award will not have conclusive and preclusive effects on a different party (DE LY/SHEPPARD, ILA Final Report on Res Judicata and Arbitration, Arbitration International, Vol. 25, No. 1, 2009, p. 76). Consequently, by absence of “the same parties”, the First DC Decision so does not extend res judicata effects on the Appealed Decision and the Second Respondent.

121. In addition, the Sole Arbitrator notes that the Appellant requested on 19 October 2019 the opening of disciplinary proceedings on the Second Respondent. In other words, the Appellant did not request to start new disciplinary proceedings against the Original Debtor. From the perspective of res judicata, the parties were, therefore, not the same.

122. In view of the above, the FIFA DC rightfully analysed the facts that occurred after the First DC Decision was rendered and was not estopped from analysing whether the Second Respondent was to be considered the sporting successor of the Original Debtor and whether the Appellant acted with diligence in the national insolvency proceedings of the Original Debtor. Both issues will now be discussed in the following paragraphs.

Is the Second Respondent the sporting successor of the Original Debtor?

123. As a preliminary remark and before entering into the merits of sporting succession, the Sole Arbitrator takes note that the First Respondent claims that the Second Respondent’s arguments in which it is seeking to challenge the Appealed Decision’s conclusion on the matter of sporting succession constitute a counterclaim and should, therefore, have been raised in a separate appeal. The Second Respondent, as the First Respondent expresses in its letter to the CAS on 31 August 2020, was only entitled to submit an answer as to the sporting successorship containing “a statement of defense” instead of submitting arguments that go beyond a mere “statement of defense”. It is the First Respondent’s position that Article R55 CAS Code stands in the way for the Second Respondent to lodge such a counterclaim. At the hearing, the Second Respondent expressed its position, as it was invited by means of the letter of the CAS Court Office on 1 September 2020 to do so, and requested the Sole Arbitrator to reject this claim.

124. The Sole Arbitrator agrees with the Second Respondent.

125. For the avoidance of doubt and as a preliminary remark as to counterclaims in general, the Sole Arbitrator wishes to underline that counterclaims are not admissible anymore as from the 2010 revision of the CAS Code, in appeal arbitration proceedings before CAS: “It must be noted that, since 2010, counterclaims are no longer possible in appeal procedures. This means that, if a potential respondent wants to challenge part or all of a decision, it must file an independent appeal with the CAS within the applicable time limit for appeal” (MAVROMATI/REEB, The Code of the Court of Arbitration for Sport, 2015, p. 249 and 488, with references to CAS 2010/A/2252, para. 40, CAS 2010/A/2098, paras. 51-54, CAS 2010/A/2108, paras. 181- 183; see also CAS 2013/A/3432 paras. 54-57 with reference to a decision of the Swiss Federal Tribunal). Therefore, in principle, the First Respondent is right that in the event a party wants to validly raise any arguments that go beyond a mere statement of defense, and that, in case of being upheld, have the effect of prejudicing its position, a party should, indeed, have filed its own independent appeal against the decision it wants to challenge (see, for example, CAS 2017/A/5481 paras. 42 - 46 and CAS 2017/A/5336 para. 116).

126. However, what makes the present case different here is that the Second Respondent, at least as to the outcome of the case, prevailed in the first instance proceedings. In fact, as follows from the Appealed Decision, “all charges against [the Second Respondent] are dismissed”. For this reason, the First Respondent’s position that the arguments on the matter of sporting succession by the Second Respondent should have been raised in a separate appeal, cannot be upheld. The Sole Arbitrator will further explain as follows.

127. The Sole Arbitrator wishes to underline that since it was the Second Respondent that prevailed in the first instance, it was thus not “aggrieved”, which is a requirement to have standing for lodging an appeal (see, inter alia, CAS 2009/A/1880, CAS 2010/A/2091, CAS 2015/A/4162, and CAS 2018/A/5628). In other words, the Second Respondent did not have standing to lodge an appeal against the Appealed Decision and, in particular, to raise any arguments in relation to the issue of sporting succession.

128. For this reason, the Sole Arbitrator will, also in light of Article R57 of the CAS Code, according to which “[t]he Panel has full power to review the facts and the law” (the so-called “de-novo” review as applicable in CAS proceedings), consider and review in full the arguments as raised by the Second Respondent in relation to sporting succession.

129. Therefore, the First Respondent’s request that the Second Respondent’s sections must be excluded based on Article R55 of the CAS Code as it concerns a counterclaim, and that the Second Respondent though should have filed an independent appeal, is rejected.

130. The Sole Arbitrator shall now consider and examine whether the Second Respondent is to be considered as the sporting successor of the Original Debtor, the entity which was ordered by the FIFA DC to pay the credit to the Appellant and against which the disciplinary proceedings under Article 64 of the 2011 Disciplinary Code were opened.

131. As a starting point, the Sole Arbitrator wishes to emphasize that the issue of the succession of two sporting clubs might be different than if one were to apply civil law regarding the succession of two separate legal entities. As such, the mere fact that two parties appeared as two separate legal entities is, so the Sole Arbitrator finds, not a decisive factor to rule out sporting succession. Put differently, the Sole Arbitrator wishes to underline that the question is not whether the Second Respondent is the legal successor of the Original Debtor. The central question to address by the Sole Arbitrator is whether or not Second Respondent is the sporting successor of the Original Debtor.

132. Therefore, the arguments by the Second Respondent that the latter is a different legal entity do not last, at least not as to the question whether the Second Respondent must be considered as the sporting successor of the Original Debtor. As the Appellant rightly submitted, the Sole Arbitrator underlines that even if Second Respondent was the legal successor or PFC Litex Lovech, as claimed by the Second Respondent, this is not decisive as to the question whether the Second Respondent is the sporting successor of the Original Debtor.

133. In addition, and for the sake of further clarity, the Sole Arbitrator emphasises, as opposed to the concept of legal succession, that in the context of sporting succession it is also of relevance to determine this concept in light of the eyes of the general public. A parallel can be drawn with the “sporting name” of a club, which is the name under which a club appears in public. The Sole Arbitrator will give heavy weight to these circumstances.

134. In this context, the Sole Arbitrator underlines that there is a significant number of CAS awards that dealt with the legal concept of sporting succession. The Sole Arbitrator refers to well-established jurisprudence from which it follows under what circumstances a “new” club can be considered as a “sporting successor”, listing criteria to determine if “sporting succession” has taken place, irregardless of the legal form under which the respective clubs have operated (see, inter alia, CAS 2007/A/1355, CAS 2011/A/2614, CAS 2011/A/2646, CAS 2012/A/2778, CAS 2016/A/4550 and CAS 2016/A/4576).

135. In particular, the Sole Arbitrator refers to an important award in CAS 2013/A/3425 (as was also referred to in CAS 2018/A/5618), from which it clearly follows that:

“…… the identity of a club is constituted by elements such as its name, colours, fans, history, sporting achievements, shield, trophies, stadium, roster of players, historic figures, etc. that allow it to distinguish from all the other clubs. Hence, the prevalence of the continuity and permanence in time of the sporting institution in front of the entity that manages it has been recognised, even when dealing with the change of management companies completely different from themselves” (original text in Spanish).

136. This approach has been applied in a number of decisions of the CAS (see, inter alia, CAS 2016/A/4576 and CAS 2018/A/5618). The effect of these decisions, and to which the Sole Arbitrator fully adheres, is that the sporting successor of a former, no longer existing club can, as a matter of principle, be liable to meet the financial obligations of that former club notwithstanding that the successor is not a party to any agreement, arrangement or understanding pursuant to which the financial obligation arose or a privy of any of the parties to any such agreement, arrangement or understanding and regardless of whether there has been a change of management or corporate structure or ownership of the club in question. In this regard, the Sole Arbitrator underlines that it is, therefore, not relevant, as opposed to what was raised by the Second Respondent as to the absence of a contract, that the latter never had a contract with the Appellant.

137. In addition, the Sole Arbitrator refers to Article 15 (4) of the 2019 edition of the FIFA Disciplinary Code (in which the above-referenced jurisprudence has been reflected):

“The sporting successor of a non-compliant party shall also be considered a non- compliant party and thus subject to the obligations under this provision. Criteria to assess whether an entity is to be considered as the sporting successor of another entity are, among others, its headquarters, name, legal form, team colours, players, shareholders or stakeholders or ownership and the category of competition concerned.”

138. For the sake of clarity and avoidance of any misunderstanding, the Sole Arbitrator wished to add that the elements as referred to in Article 15 (4) of the 2019 edition of the FIFA Disciplinary Code are not exhaustive, as clearly follows from the words “among others”. The Sole Arbitrator feels forced to lay emphasis on this. In other words, the existence of several elements in light of this provision can lead, in its combination, and so even if not all elements are met in a specific case, to the conclusion that a club has to be considered as a “sporting successor”. The overall package of elements is decisive.

139. Against the above legal background, the Sole Arbitrator finds that there is conclusive evidence that it concerns a matter of succession at a sporting level in the present arbitration. Many relevant criteria, that are clearly listed in Article 15 (4) of the 2019 FIFA Disciplinary Code, as well as the ones derived from the above CAS jurisprudence are present. The Sole Arbitrator, fully agreeing with such reasoning, considers that, in this case Second Respondent is actually the sporting successor of the Original Debtor.

140. The following elements play a decisive role.

141. First, the names of the Second Respondent and the Original Debtor are practically identical. The Sole Arbitrator underlines that the only difference between the Original Debtor and Second Respondent is the hyphen symbol (between ‘CSKA’ and ‘Sofia’).

142. Further to this, there is no doubt that the Second Respondent publicly portrays itself as the same club as the Original Debtor. The FIFA DC rightly decided that the main idea was to maintain and reflect the sporting history of the Original Debtor. In this regard, the Sole Arbitrator attaches much value to the perception of the public. Moreover, it is clear that the Second Respondent identifies itself as a sports entity founded in 1948 and celebrates its “70th anniversary”, which is the date of existence of the Original Debtor.

143. Moreover, the Sole Arbitrator takes note that the history of the Original Debtor is exactly the same as the Second Respondent and a great number of players who played for the Original Debtor are in fact recognized in the Second Respondent’s history.

144. Additionally, the Sole Arbitrator underlines that the Original Debtor and the Second Respondent have their premises at the same address, have the same stadium, use the same logo, colors and uniform, and also use the same Twitter and Facebook account.

145. In addition, the Sole Arbitrator remarks, and finds it of signifant importance to underline, that it is also not disputed, at all, by the Second Respondent that there are intended and undisputable similarities between the Second Respondent and the Original Debtor. In other words, the Second Respondent, at the least, created the impression that it wanted to be legally bound by the obligations of its predecessor (CAS 2007/A/1233).

146. The arguments as raised by the Second Respondent that ownership, license football teams and legal entities are different, are fully noted and taken into account by the Sole Arbitrator, but will not prevail over the significant number of elements on the other side, as summed up above, that clearly point in the direction of the existence of sporting succession. In this regard, the Sole Arbitrator reiterates that the elements are not exhaustive and are purely meant as indicative pointers of direction in order to determine whether sporting successorship exists. In this context, it is the combination of elements that exist in the present arbitration, as referred to above, that leads to the conclusion that the Second Respondent is considered as the sporting successor of the Original Debtor.

147. Despite the above-mentioned elements that support the position of the Appellant that it is a matter of sporting succession, the Sole Arbitrator observes that the Second Respondent also claims that there is no matter of sporting succession because it bought certain intellectual property rights (such as the logo) and other assets out of the bankruptcy mass of the Original Debtor in a public tender, and therefore, it is not a case where a club tries to “clean its balance sheets” to get rid of old creditors and to have a “fresh start”. However, without entering into the question about the intention, in terms of good or bad faith, of the Second Respondent, and whether or not the Second Respondent always acted transparent (taking note of the substantial number of documents as submitted by the Second Respondent in order to demonstrate its acting), this is not a decisive element in light of sporting succession. Indeed, this can be an element that can be taken into account. However, it does not, per definition, rule out sporting succession. Regardless of the intention from the side of the Second Respondent, the Sole Arbitrator feels fully comforted to conclude that, in the context of the specific circumstances of the case and in light of the legal framework, in particular the criteria, as listed, also considering Article 15 (4) of the 2019 FIFA Disciplinary Code, the Second Respondent is considered to be the sporting successor of the Original Debtor.

148. By the same token, the Sole Arbitrator does also not agree that due to the existence of bankruptcy proceedings, as is submitted by the Second Respondent, a situation of sporting succession should be ruled out. The Sole Arbitrator finds that even if bankruptcy proceedings took place, sporting succession can still exist. The Sole Arbitrator feels supported in its findings by CAS jurisprudence from which it also follows that insolvency proceedings, bankruptcy and sporting succession are, and rightly so, different concepts (see, inter alia, TAS 2013/A/3435). The Sole Arbitrator wishes to underline that not all sporting cases of sporting succession are triggered by the inability of a club to face its financial obligations. Consequently, the fact that no bankruptcy proceedings were at stake in most of the jurisprudence of the CAS the Second Respondent refers to in its submissions, is to no avail to the Second Respondent.

149. In addition, and for the avoidance of further doubt, the fact that bankruptcy proceedings are also not mentioned in light of Article 15 (4) of the 2019 FIFA DC, as submitted by the Second Respondent, does not mean that such provision should not be applicable to the present arbitration. Moreover, the fact that this provision was created to avoid abuse of clubs trying to escape from financial obligations, is also not put in doubt by the Sole Arbitrator. However, the Sole Arbitrator wishes to underline that even if any abuse is absent or cannot be demonstrated, Article 15 (4) of the 2019 FIFA Disciplinary Code can still apply. As a consequence, the Sole Arbitrator concludes that FIFA did not misapply such provision by opening disciplinary proceedings against the Second Respondent.

150. Further to this, the Sole Arbitrator does not want to leave unmentioned that according to the so-called “Rangers de Talca case” (CAS 2011/A/2646), a new club acquiring in the bankruptcy proceedings the “economic unit composed of all the assets seized” from another club, was to be understood as a successor of the old club since it was clear that the new club, by purchasing the assets of the old club, continued the activity formerly developed by the old with the same image, badge, hymn, representative colours, emblems and placement. In the present case, it is the exact same situation. Also here, the Second Respondent bought the intellectual property rights out of the Original Debtor’s bankruptcy mass, and is also considered as the sporting successor in this case.

151. In view of the above, the “Rangers de Talca case” is to no avail to the Second Respondent, although the Second Respondent is right that not all elements in that case apply to the present arbitration and that there are differences as compared to this case. However, the Sole Arbitrator carries more weight to the elements that exist in the present arbitration that clearly point in the direction of sporting succession. The fact that the Second Respondent did not take over federative rights or the football team of the Original Debtor are not prevailing in the present arbitration, as clearly set out above.

152. Additionally, the Sole Arbitrator also feels supported by the jurisprudence of FIFA in which the FIFA DC has already decided several times that the Second Respondent is to be considered the sporting successor of the Original Debtor based on several criteria, as are listed above (see, inter alia, the decision of the FIFA DC dated 12 February 2020, no. 150851; decision dated 20 November 2019, no. 150034; decision dated 20 November 2019, no. 170528; and the decision dated 25 September 2019, no. 150860).

153. In light of the foregoing, the Sole Arbitrator agrees with the Appellant and rejects the Second Respondent’s arguments on this point, and upholds the findings in the Appealed Decision that the Second Respondent is the sporting successor of the Original Debtor.

154. For all the reasons above, there is no doubt for the Sole Arbitrator that the Second Respondent should be considered the same club as the Original Debtor or, at least, the Original Debtor’s sporting successor, and that the Second Respondent can be held liable to comply with the financial obligations of the former club, i.e. the Original Debtor.

155. The consequence of the fact that the Second Respondent must be considered as the sporting successor of the Original Debtor is that Article 55(b) of the 2019 FIFA Disciplinary Code (of the former Article 107 under b) does not apply. As also follows from the “Sprockel-case” (CAS 2018/A/5647), the Sole Arbitrator remarks that the Appellant brought into the scene the Second Respondent, which has to be considered the same as – and or the sporting successor of – the Original Debtor. Therefore, the arguments raised by the Second Respondent that disciplinary proceedings should be closed, must be rejected as the latter is not bankrupt and currently affiliated to BFU.

Did the Appellant act with due diligence in the insolvency proceedings?

156. The Sole Arbitrator remarks that, in the past, CAS panels have also dealt several times with the question if the creditor showed the required degree of diligence. This not only follows from the “Rangers de Talca case”, but also from other CAS jurisprudence (see, inter alia, CAS 2011/A/2646), including the CAS award which was submitted by the Appellant along with her email of 26 August (the so-called “Tammeka-case”), which was admitted to the file (CAS 2019/A/6461). The Sole Arbitrator fully concurs with the general stance taken by these CAS panels regarding the required degree of diligence.

157. In particular, there should be no doubt, so the Sole Arbitrator finds, that a creditor is expected to be vigilant and to take prompt and appropriate legal action in order to assert his claims. In principle, no disciplinary sanctions can be imposed on a club as a result of succession, should the creditor fail to claim his credit in the bankruptcy proceedings of the former club, as there is a theoretical possibility he could have recovered his credit, instead of remaining passive. As was decided by these panels in the above-referenced CAS jurisprudence, in such instances it is necessary to examine whether a creditor has shown the required degree of diligence to recover the amounts he is owned. On the other hand, as was also clearly considered by the panel in CAS 2019/A/6461, there is no blanket rule whether or not a creditor has shown the required degree of diligence. This assessment should be made based on the specific circumstances of the case. The Sole Arbitrator fully adheres to this approach. As such, the Sole Arbitrator will now take a deeper look into and will further analyse the specific circumstances in the present case.

158. In view of the specific circumstances and as a first observation, the Sole Arbitrator notes that the Appellant did not register her claim in the bankruptcy proceedings of the Original Debtor. It is clear that the Appellant, at least from this perspective, remained passive. It is, however, the question whether this passiveness should lead to a fatal lack of diligence. In this regard, the Appellant claims that she was not properly notified about the respective bankruptcy. The Sole Arbitrator, however, has some difficulties to believe that the Appellant was not aware of the bankruptcy proceedings in Bulgaria.

159. The Sole Arbitrator takes note of the Appellant’s reliance on Article 40 of the Council Regulation (EC), no. 1346/2000 dated 29 May 2000 (“EU Insolvency Regulation”). The Sole Arbitrator does not need to examine whether this provision is of assistance for the Appellant and whether or not she was a “known creditor” in the meaning of this provision, as the Sole Arbitrator observes that she received a letter from the Secretariat on 13 October 2015, as outlined above, by means of which she was informed about and became aware of the bankruptcy proceedings. As from that moment, at any event, the Appellant knew, or at the least should have known, about the bankruptcy proceedings.

160. The reliance on Article 40 EU Insolvency Regulation appears to be a too formalistic approach by the Appellant, as FIFA rightfully submitted, and cannot be of any help for her, also taking into account that the background thought of said provision is that foreign creditors are informed about and become aware of pending bankruptcy proceedings.

161. In any event – which is also an important element for the Sole Arbitrator in its assessment – even if she was notified pursuant to Article 40 EU Insolvency Regulation, there is no certainty that the Appellant would have registered her claim in the Bulgarian insolvency proceedings. To the contrary, as the Appellant claims that she would never have recovered the amounts due in the 2013 PSC Decision via the insolvency proceedings, it does not seem logical that she would have filed her claim if she was correctly notified following Article 40 EU Insolvency Regulation. The Sole Arbitrator is not convinced that, also under that scenario, she would have registered her credit.

162. Moreover, the Sole Arbitrator does not want to leave unmentioned that the fact that the Original Debtor went bankrupt was not only public information, but also published in the commercial register of the Republic of Bulgaria, as also demonstrated by the Second Respondent. Additionally, the Sole Arbitrator does not rule out that she was also informed by her son, or his counsel, about the bankruptcy proceedings as he was also a creditor and did register his claim in the bankruptcy proceedings. It appears to be realistic to the Sole Arbitrator that Appellant was aware of the bankruptcy proceedings.

163. Therefore, it is clear for the Sole Arbitrator that the Appellant decided not to claim her credit in the bankruptcy proceedings in spite of her awareness of these proceedings.

164. As to her chances and the question whether the liquidated damages would have resulted in sufficient surplus in a way that the recovery of the debt would have been feasible via this procedure, which is also an important element in the context of the required degree of diligence, the Sole Arbitrator also brings in mind that the Second Respondent submitted a substantial amount of BGN 8,000,000 (almost EUR 4,000,000) into the bankruptcy mass of the Original Debtor. In July 2020, 95% of the privileged creditors received their registered claim, which was confirmed by the witness Ms Dora Zlateva Mileva-Ivanova, the Judicial Administrator of the Original Debtor, during the hearing.

165. In light of the specific circumstances of the case, the Sole Arbitrator finds it an important element in the present case that a substantial amount was submitted in the bankruptcy proceedings. This also makes the case different as to CAS 2019/A/6461 as in that case there was no information regarding the value of the liquidated assets. Once again, in the present case almost EUR 4,000,000 was submitted into the respective bankruptcy mass. This is clearly demonstrated by the Respondents and also not disputed by the Appellant.

166. Indeed, the Sole Arbitrator cannot ascertain whether or not the Appellant would have received the sum of her credit, also in light of her position of not holding a preferential credit in this specific case, in case she had duly claimed for it in the bankruptcy proceedings in Bulgaria, but it was at least, a feasible theoretical possibility that could have provoked that the order of payment issued by the Single Judge of the FIFA Players’ Status Committee rendered on 28 August 2013 has been complied with and thus, that the sanction imposed in the Appealed Decision became groundless. At any event, it is also taken into consideration by the Sole Arbitrator that it would have required little from the Appellant to register her claim in the bankruptcy proceedings in Bulgaria.

167. Although the Appellant contested that she did not even have a theoretical possibility to receive her sum of credit in the insolvency proceedings and, at any event, that this would not have clearly been the case in practice, the Sole Arbitrator wishes to emphasise that this was not yet known at the moment she became aware of the bankruptcy proceedings. Therefore, this cannot be invoked as a valid reason for the Appellant not to submit the claim. As a matter of fact, at that specific point in time, i.e. the moment when the bankruptcy proceedings were opened, this was not at all clear for the Appellant. In order to get more clarity, the Sole Arbitrator is of the view that the Appellant should, at the least, have explored such possibility, also to reserve any legal right, should have communicated her credit in the bankruptcy proceedings in Bulgaria, should have tried to get the money and not simply remain passive, as she did, additionally pretending that disciplinary sanctions are imposed irrespective of her diligence or negligence in trying to achieve a result (recovery of the debt) that would remove the ground of the sanction.

168. The Appellant demonstrated that also other players’ agents, such as Managing Agency Tanev Ltd. and Messrs. Bizarri and Vuchkov, had not received anything in the insolvency proceedings. However, as the bankruptcy proceedings were not closed yet, it is, therefore, not ruled out, per definition, that nothing will be received in the future.

169. The Sole Arbitrator finds that the “Rangers de Talca case” (CAS 2011/A/2646) can also not be of help for the Appellant. It is the Sole Arbitrator’s understanding, and as such agrees with FIFA, that it was more a matter of passiveness that caused the player’s downfall, rather than the creditor’s change of action (venire contra factum proprium). Moreover, the Sole Arbitrator reiterates that in the present case, similar as in “Rangers de Talca”, a substantial amount of money was submitted in the bankruptcy proceedings.

170. This, altogether, in the Sole Arbitrator’s opinion, leads to the conclusion that there is a lack of diligence of the Appellant in recovering her credit that shall have a decisive impact in the present case. Consequently, the specific circumstances of this arbitration, as indicated, have convinced the Sole Arbitrator that the Appellant did not act with the required diligence in recovering her credit in the Bulgarian insolvency proceedings.

171. Consequently, and in view of the reasons as set out above, the Sole Arbitrator concludes that the Appellant did not act with diligence in recovering her credit in the insolvency proceedings. The Sole Arbitrator resolves that the Appealed Decision shall be upheld.

C. Conclusion

172. Based on the foregoing, and after having taken into due consideration all the specific circumstances of the case, the evidence produced and the arguments submitted by the Parties, the Appealed Decision is upheld as the Sole Arbitrator concludes that:

i) The Appellant did have standing to invoke Article 64 FIFA Disciplinary Code;

ii) The appeal of the Appellant was not time-barred;

iii) The FIFA DC rightfully analysed the merits in light of res judicata;

iv) The Second Respondent is the sporting successor of the Original Debtor; and

v) The Appellant did not act with due diligence in the insolvency proceedings.

173. All other and further motions or prayers for relief are dismissed. COSTS

174. Article R64.4 of the CAS Code provides as follows:

“At the end of the proceedings, the CAS Court Office shall determine the final amount of the cost of arbitration, which shall include:

- the CAS Court Office fee,

- the administrative costs of the CAS calculated in accordance with the CAS scale,

- the costs and fees of the arbitrators,

- the fees of the ad hoc clerk, if any, calculated in accordance with the CAS fee scale,

- a contribution towards the expenses of the CAS, and

- the costs of witnesses, experts and interpreters.

The final account of the arbitration costs may either be included in the award or communicated separately to the parties. The advance of costs already paid by the parties are not reimbursed by the CAS with the exception of the portion which exceeds the total amount of the arbitration costs.”

175. Article R64.5 of the CAS Code provides the following:

“In the arbitral award, the Panel shall determine which party shall bear the arbitration costs or in which proportion the parties shall share them. As a general rule and without any specific request from the parties, the Panel has discretion to grant the prevailing party a contribution towards its legal fees and other expenses incurred in connection with the proceedings and, in particular, the costs of witnesses and interpreters. When granting such contribution, the Panel shall take into account the complexity and outcome of the proceedings, as well as the conduct and the financial resources of the parties.”

176. The Appellant requested in her Appeal Brief the Sole Arbitrator to rule that the present case is exclusively disciplinary, “as it concerns predominantly the disciplinary issue of deduction of points” and “thus shall be subject to the provision of Article R65 of the Code”. Therefore, the Appellant finds that she should be exempted from paying any advance of costs, and, as such, that the advance of costs should be reimbursed to her.

177. On 23 July 2020, the Parties were informed by the CAS Court Office that the Sole Arbitrator decided that Article R64 of the CAS Code shall apply in this matter. The Sole Arbitrator confirms his decision under this part of the Award and explains as follows.

178. The Sole Arbitrator finds that there is a predominant economic nature in this disciplinary matter. In essence, it comes down to a case in which a party in its former capacity of intermediary (the Appellant) claims that another party (the Second Respondent) must be sanctioned by the FIFA DC for the Second Respondent’s failure to pay the Appellant an amount of EUR 50,000 which derives from the 2013 PSC Decision.

179. Put differently, it is not a regular disciplinary matter whereby the party challenging a decision from the FIFA DC is the same party against whom disciplinary proceedings were opened and, as such, is the object of the proceedings.

180. The Sole Arbitrator remarks that the Appellant challenged the Appealed Decision with the aim to collect the outstanding amount of EUR 50,000. It is the Appellant’s good right to do so. However, it is clear that there is an economic interest from the side of the Appellant that dominates. In this regard, the Sole Arbitrator notes that the appeal was not intended to protect a disciplinary interest of the Appellant, but to serve its financial interest and to establish that the Second Respondent will be held liable for the non-payment of the outstanding amount of EUR 50,000 and will be sanctioned accordingly.

181. Therefore, so the Sole Arbitrator finds, the Appellant should not be exempted from paying advance of costs pursuant to Article R64 of the CAS Code, also taking into account that the Appellant did not further motivate her request that the present arbitration is exclusively disciplinary and that Article R65 should be applicable. On these grounds, the Sole Arbitrator comes to the conclusion that Article R64 of the CAS Code applies.

182. Against the above background, and having taken into account the outcome of the present arbitration proceedings and considering that the appeal by the Appellant has been rejected, the Sole Arbitrator finds that the costs of the arbitration, to be determined and served to the Parties by the CAS Court Office, shall be entirely borne by the Appellant.

183. In addition and as a final note, pursuant to Article 64.5 of the CAS Code, and in consideration of the outcome of the proceedings, the fact that the First Respondent was not represented by outside counsel as well as that a hearing was held by video-conference, the Sole Arbitrator holds that the Appellant shall pay a contribution towards the Second Respondent’s legal fees and other expenses incurred in connection with these arbitration proceedings in the amount of CHF 3,000 (three thousand Swiss francs).

*****

ON THESE GROUNDS

The Court of Arbitration for Sport rules that:

1. The appeal filed on 20 March 2020 by Ms Soukeyna Ba Bengelloun against FIFA and

PFC CSKA-Sofia with respect to the decision issued on 12 February 2020 by the

Disciplinary Committee of the Fédération Internationale de Football Association is

rejected.

2. The decision issued on 12 February 2020 by the FIFA Disciplinary Committee is

confirmed.

3. The costs of the arbitration, to be determined and served to the Parties by the CAS Court

Office, shall be borne by Ms Soukeyna Ba Bengelloun in their entirety.

4. Ms Soukeyna Ba Bengelloun is ordered to pay to PFC CSKA-Sofia an amount of CHF

3,000 (three thousand Swiss francs) as a contribution towards its legal costs and expenses

incurred in connection with the present proceedings.

5. All other and further motions or prayers for relief are dismissed.

Seat of Arbitration: Lausanne, Switzerland

Date: 29 January 2021

THE COURT OF ARBITRATION FOR SPORT

Frans M. de Weger

Sole Arbitrator