ARBITRAL AWARD Delivered by the COURT of ARBITRATION FOR
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ARBITRAL AWARD delivered by the COURT OF ARBITRATION FOR SPORT sitting in the following composition: President: The Hon. Michael Beloff QC, Barrister, London, United Kingdom Arbitrators: Mr Olivier Carrard, Attorney-at-Law, Geneva, Switzerland Mr Dirk-Reiner Martens, Attorney-at-law, Munich, Germany (“The Panel”) between Mr Ariel Arnaldo ORTEGA, Santa Fe, Argentina, represented by Mr Juan de Dios Crespo Pérez, Attorney-at-Law, Valencia, Spain as Claimant and FENERBAHÇE SPOR KULÜBÜ, Fenerbahçe, Turkey, represented by Mr Ayhan Copuroglu, Attorney-at-law, Istanbul, Turkey and FÉDÉRATION INTERNATIONALE DE FOOTBALL ASSOCIATION, FIFA, Zurich, Switzerland, represented by Mr Gianpaolo Monteneri, Head of Players' Statuts, Legal Services, Attorney-at-law, Fédération Internationale de Football Association (FIFA), Zurich, Switzerland as Respondents * * * * * CAS 2003/O/482 Ortega v/Fenerbahçe & FIFA page 2 1. BACKGROUND 1.1 On 6 June 2003, the Dispute Resolution Committee of the Players Status Committee of FIFA ordered (“the Decision”), inter alia, Mr Ariel Arnaldo ORTEGA (“Mr Ortega”) to pay FENERBAHÇE SPOR KULÜBÜ (“the Club”) an amount of USD 11,000,000 as compensation for breach of an employment contract (“the compensation order”) and stated that Mr Ortega was not eligible to play for any club until 30 December 2003 (“the suspension order”). 1.2 On 25 June 2003 Mr Ortega received notification of the decision. 1.3 On 15 July 2003, Mr Ortega filed a request for arbitration accompanied by 9 exhibits with the Court of Arbitration for Sport (“CAS”) to set aside the decision. He also applied for a stay of execution of the compensation order and the suspension order. 1.4 On 28 July 2003, the Club and FIFA filed their opposition to the application for a stay of the suspension order. In respect of the compensation order, FIFA took no position; the Club did not oppose it as long as a bank guarantee for the said sum of USD 1,000,000 was deposited with CAS to abide the outcome of the dispute. 1.5 On 6 August 2003, FIFA filed its answer to the request for arbitration accompanied by 7 exhibits. 1.6 On 7 August 2003, the Club filed its answer to the request for arbitration accompanied by 30 exhibits and copies of newspaper articles. 1.7 On 19 August 2003 the Panel ordered a stay of the suspension order only. 1.8 On 22 August 2003, the Claimant filed his statement of claim accompanied by 2 exhibits, four witness statements and copies of the Turkish legislation. 1.9 On 29 August 2003, the Respondent Fenerbahçe filed its response accompanied by 21 exhibits. CAS 2003/O/482 Ortega v/Fenerbahçe & FIFA page 3 1.10 On 29 August 2003, the Respondent FIFA filed its response. 1.11 On 19 September 2003 the Panel held an oral hearing in Lausanne. The following witnesses were heard. For Mr Ortega: Mr Antonio Caliendo Mr Guiliano Iacoppi Mr Juan Berros For the Club: Mr Mustafa Kiran Mr Celalettin Bilgic (Mr Ortega and , Mr Yildirim Aziz President of the Club also addressed the Panel (in the first case) as a party and (in the second case) a representative thereof. 2. JURISDICTION 2.1 Art. R27 of the Code of Sports-related arbitration (“Code”) provides that the Code applies whenever the parties have agreed to refer a sports-related dispute to the CAS. Such disputes may arise out of a contract containing an arbitration clause, or be the subject of a later arbitration agreement. 2.2 FIFA has accepted the jurisdiction of CAS as from 11 November 2002 (Circular no. 827 to its National Associations.) 2.3 Further, the Decision provided that: “This decision may be appealed before the Court of Arbitration for Sport (CAS) within 20 days of receiving notification of this decision by contacting the court directly in writing and by following the directions issued by the CAS, copy of which we enclose hereto.” 2.4 Such provision constituted an offer by FIFA to conclude an ad hoc arbitration agreement which was accepted by Mr Ortega in filing his request for arbitration. CAS 2003/O/482 Ortega v/Fenerbahçe & FIFA page 4 2.5 The Club and FIFA have both filed answers to the request for arbitration and confirmed their acceptance of CAS's jurisdiction. It is further confirmed by the unconditional appearance of the Club as well as by the signature of the order of procedure by all the Parties, i.e. by the Claimant, by the Respondent and by FIFA. 2.6 It follows that CAS has jurisdiction to decide the present dispute, which is not a disciplinary matter and, accordingly, pursuant to art. S20 of the Code has been assigned to the Ordinary Arbitration Division of CAS and is thus to be handled according to the rules applicable to ordinary arbitration proceedings. By signing the order of procedure, the Parties have entrusted the Panel with full power to establish the facts and the law and to rule on the case de novo. 3. APPLICABLE LAW 3.1 Art. R45 of the Code provides that the Panel shall decide the dispute according to the rules of law chosen by the parties or, in the absence of such a choice, according to Swiss Law. 3.2 In the present matter, the parties refer exclusively to FIFA's regulations. They have not agreed on the application of any other particular law. Therefore, subject to the primacy of applicable FIFA's regulations, Swiss Law shall apply complementarily. 4. ADMISSIBILITY 4.1 The request of arbitration of Mr Ortega was filed within the deadline, stated in the Decision, of twenty days after receipt of notification of the Decision itself. It complies with the requirements of art. R38 of the Code. 4.2 It follows that the request for arbitration is admissible. 5. OUTLINE 5.1 Mr Ortega is an international footballer of considerable pedigree and renown. He has had a peripatetic career, playing for River Plate in Argentina, Valencia in Spain, and CAS 2003/O/482 Ortega v/Fenerbahçe & FIFA page 5 Sampdoria and Palma, in Italy. The Club, his latest port of call, is one of Turkey’s leading clubs. Ambitious to enhance its status and success, it signed Mr Ortega amid considerable fanfare in the Turkish press. 5.2 The salient stages in their brief relationship were as follows: • On 23 May 2002 the Club, River Plate, and Mr Ortega signed a tripartite agreement to transfer Mr Ortega from River Plate to the Club at a fee of USD 7,500,000. • On 8 June 2002, Mr Ortega signed a global contract, including for image rights, with the Club (“Global Contract”) for which he was paid USD 2,000,000 per season. • On 24 June 2002, Mr Ortega signed a contract to play football for the Club for 4 years (“Employment Contract”) at a salary of USD 1,000,000 per season, payable in 10 instalments. 5.3 In the first half of the football season, 2002-2003, Mr Ortega’s star shone only fitfully. There were problems on both sides, both on and off the field. 5.4 Between mid December 2002 and mid January 2003, Mr Ortega was in Argentina, whither he had returned so that an injury could be addressed by his personal physiotherapist. There was a flurry of correspondence between Mr Ortega and the Club over the New Year period. The Club was concerned about his delayed return to Turkey. 5.5 On 12 February 2003 a friendly international match took place between Argentina and Holland in Amsterdam, in which Mr Ortega played. Instead of returning thereafter to Turkey, Mr Ortega flew to Argentina (he asserts – but the Club denies) with the President’s permission to be present at the forthcoming confinement of his wife with their third child. CAS 2003/O/482 Ortega v/Fenerbahçe & FIFA page 6 5.6 On 18 February 2003 the Club sent a faxed complaint to Mr Ortega’s representative, Mr Juan Berros. Thereafter there ensued discussions between the Club and River Plate about Mr Ortega’s possible re-transfer back to Argentina. 5.7 On 6 March 2003 upon the breakdown of these discussions, the Club sent a fax demanding Mr Ortega’s immediate return. 5.8 On the same date Mr Ortega faxed the Club, setting out particular conditions for his return. The Club made no direct response. 5.9 However, on 11 April 2003, Mr Ortega having not returned, the Club made a claim to FIFA. 5.10 On 6 June 2003, FIFA Dispute Resolution Committee (“DRC”), in the absence of Mr Ortega or any representative, ruled that he was in breach of his contract without just cause, and imposed a penalty of suspension and an award of compensation. 5.11 It is against that decision that this appeal is brought. 5.12 In effect a marriage apparently made in football heaven ended in acrimonious divorce. At root it falls to us to determine who was responsible for the breakdown and its consequences. 6. ISSUES The following issues arise: (i) Is Mr Ortega entitled to succeed on this appeal on the basis that he was not heard before the DRC (“natural justice”)? (ii) By what law was the employment contract governed (“law of contract”)? (iii) What were the material terms of Mr Ortega’s contract with the Club (“terms”)? CAS 2003/O/482 Ortega v/Fenerbahçe & FIFA page 7 (iv) Was the Club in breach of those terms or any of them and did such breach (if any) entitle Mr Ortega to treat the contract as at an end? (“Club breach?”) (v) Alternatively, was Mr Ortega in unilateral breach of those terms without just cause (“Mr Ortega breach”)? (vi) If Mr Ortega was in breach, what were the powers of the DRC (“DRC’s powers”)? (vii) Was the DRC entitled to suspend Mr Ortega (“suspension”)? (viii) Did the DRC calculate the compensation correctly (“compensation”)? We shall deal with these issues in that order.