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CAS 2023/A/10243 — Club APOEL Nicosia v. Lucas Vieira de Souza

"APOEL Nicosia v. Vieira de Souza" · CAS upheld FIFA DRC's order requiring APOEL to pay EUR 100,000 to player under a mutual termination agreement's cost-sharing clause.

What happened in APOEL Nicosia v. Vieira de Souza

Club APOEL Nicosia (Cyprus) re-signed Brazilian player Lucas Vieira de Souza in August 2021 after he unilaterally terminated his contract with Chinese club Changchun Yatai. Before signing, the parties executed a Guarantee Agreement under which the player would indemnify the club for any liability arising from that termination, including a EUR 50,000 penalty. In April 2022, FIFA DRC found the player's termination was without just cause and ordered him and APOEL jointly and severally to pay Yatai EUR 200,000. Both parties appealed to CAS, but the player's appeal was dismissed for late filing of hard copies. On 29 July 2022, the parties signed a Termination Agreement releasing the player to join Saudi club Al-Khaleej, setting off EUR 200,000 in unpaid salaries against a release fee, and agreeing to split any remaining Yatai liability 50/50. The player paid EUR 203,014 to Yatai on 9 August 2022; APOEL then withdrew its own CAS appeal. APOEL later claimed the Termination Agreement was forged and that the player had fraudulently concealed the dismissal of his CAS appeal. FIFA DRC rejected APOEL's counterclaim and ordered it to pay the player EUR 100,000 (half the Yatai damages). CAS confirmed that ruling, finding no fraud, the set-off valid, and the 50/50 split binding. The case matters for its treatment of mutual termination agreements as comprehensive settlements and the non ultra petita principle regarding the Diarra judgment.

Procedural history of CAS 2023/A/10243

On 21 April 2022, FIFA DRC (First Decision) found the player terminated his Yatai contract without just cause and ordered him and APOEL jointly and severally to pay Yatai EUR 200,000 plus 5% interest. Both parties appealed to CAS; the player's appeal was dismissed on 2 August 2022 for late hard-copy filing. APOEL withdrew its appeal on 22 August 2022 after the player paid EUR 203,014 to Yatai. On 11 January 2023, the player filed a new FIFA DRC claim for EUR 300,000 (EUR 200,000 unpaid salaries plus EUR 100,000 as half the Yatai damages). APOEL filed a counterclaim for the EUR 50,000 Guarantee Agreement penalty. On 21 September 2023, FIFA DRC (Appealed Decision) partially accepted the player's claim, ordering APOEL to pay EUR 100,000 plus 5% interest from 21 April 2022, and rejected APOEL's counterclaim. APOEL filed its CAS Statement of Appeal on 13 December 2023, and the Sole Arbitrator held a videoconference hearing on 9 October 2024.

Key holdings in CAS 2023/A/10243

• The version of the Termination Agreement submitted by APOEL — including the set-off of EUR 200,000 in unpaid salaries and the 50/50 split of Yatai damages — was the valid and binding original, as the player failed to produce written evidence rebutting it.
• The player's failure to disclose the dismissal of his CAS appeal did not constitute fraud or a fundamental error under Swiss law sufficient to void the Termination Agreement, particularly because APOEL had filed its own independent CAS appeal and could have controlled whether appeal proceedings continued.
• By signing the Termination Agreement, APOEL irrevocably relinquished its right to claim the EUR 50,000 contractual penalty under the Guarantee Agreement, which was expressly terminated in paragraph 6 of that agreement.
• The Appeal Brief filed on 11 January 2024 was timely, as the original deadline was suspended with two days remaining and those days were added to the two granted extensions, giving APOEL until 19 January 2024.
• Under the non ultra petita principle, the Sole Arbitrator could not apply the CJEU Diarra judgment (C-650/22) to override the Termination Agreement's paragraph 4, as APOEL never raised that argument despite multiple invitations to do so.

How the CAS panel reasoned

The Sole Arbitrator conducted a full de novo review under Article R57 of the Code. On the version of the Termination Agreement, he found the player's witness evidence (agent and wife) insufficient to displace the written document in the FIFA file, which bore both parties' signatures and was corroborated by the surrounding WhatsApp correspondence and the player's same-day signing with Al-Khaleej. The 'reciprocal concessions of equal value' analysis from the FIFA DRC was adopted: the player surrendered EUR 200,000 in salary arrears in exchange for early release to a far more lucrative contract. On fraud, the Sole Arbitrator found no evidence the player knew his CAS appeal was defective before 2 August 2022 — after the Termination Agreement was signed — and noted that APOEL's own independent appeal meant it was not dependent on the player's appeal. APOEL's voluntary withdrawal of its own appeal, rather than seeking a declaration of non-liability, undermined its position. The Guarantee Agreement penalty claim failed because paragraph 6 of the Termination Agreement expressly and irrevocably terminated that agreement. On the Diarra judgment, the Sole Arbitrator declined to apply it proprio motu, citing the non ultra petita principle and APOEL's repeated silence on the issue.

Why APOEL Nicosia v. Vieira de Souza matters in CAS jurisprudence

This award illustrates that a mutual termination agreement containing a comprehensive settlement clause and a 50/50 cost-sharing arrangement will be treated as a binding 'closing of the book' on all prior disputes, including Guarantee Agreement penalties. It also demonstrates CAS's application of the non ultra petita principle to decline applying the landmark CJEU Diarra judgment (C-650/22) where the affected party never raised the argument, and confirms that a club's independent CAS appeal negates any fraud claim based on the counterparty's failure to disclose defects in its own appeal.

Cases cited in this award

CAS 2025/A/3896 Trindade v. Club Atlético de Madrid CAS 2023/A/9670 LOSC Lille v. Sporting Club de Portugal & FIFA CAS 2023/A/9671 Sporting Club de Portugal v. LOSC Lille C-650/22 (CJEU Diarra case)

Frequently asked questions about APOEL Nicosia v. Vieira de Souza

Why did APOEL Nicosia have to pay EUR 100,000 to the player if the player was the one found to have breached his contract with Yatai?

In the Termination Agreement of 29 July 2022, APOEL and the player expressly agreed in paragraph 4 to split any remaining Yatai liability 50/50. The FIFA DRC and CAS both found this clause valid and binding. Because the player had already paid EUR 203,014 to Yatai on 9 August 2022, APOEL owed him reimbursement of half that amount, i.e. EUR 100,000 plus 5% interest from 21 April 2022.

Did the player commit fraud by not telling APOEL that his CAS appeal had been dismissed before the Termination Agreement was signed?

The Sole Arbitrator found no fraud. The CAS Court Office's dismissal letter was sent to the player's lawyer on 2 August 2022, after the Termination Agreement was signed on 29 July 2022, making it unlikely the player knew of the defect beforehand. Crucially, APOEL had filed its own independent CAS appeal on 18 July 2022 and could have continued those proceedings regardless of the player's appeal, so it was not legally dependent on the player's appeal being in place.

Can APOEL still claim the EUR 50,000 penalty under the Guarantee Agreement after signing the Termination Agreement?

No. Paragraph 6 of the Termination Agreement expressly and irrevocably terminated the Guarantee Agreement of 13 August 2021, stating it was 'of no longer legal validity or enforcement and no longer imposes any contractual obligations on the Player.' Because APOEL failed to prove fraud or fundamental error sufficient to void the Termination Agreement, paragraph 6 remained fully effective and extinguished the penalty claim.

Did the CJEU Diarra judgment (C-650/22) affect APOEL's joint and several liability under Art. 17(2) FIFA RSTP in this case?

The Sole Arbitrator declined to apply the Diarra judgment, citing the non ultra petita principle: APOEL never raised the compatibility of Art. 17(2) FIFA RSTP with EU law despite multiple explicit invitations from the Sole Arbitrator to do so. The award notes that FIFA suspended disciplinary measures under Art. 17 on 25 November 2024 in light of Diarra, but since APOEL's liability in this case arose from the contractual paragraph 4 of the Termination Agreement rather than solely from Art. 17(2), the Diarra judgment had no bearing on the outcome.

Topics: Art. 17 RSTP & contract termination at CAS

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