Abstract
This chapter addresses the termination of the employment contract between the player and the club. Here it will be brought to the readers’ attention under which circumstances a unilateral termination by a party is justified and accepted by the DRC. This chapter will first look at the mutual termination agreement , the probation period and the relegation clause. Subsequently, it will be analysed when just cause is present for players and clubs according to the leading jurisprudence. After analysing the DRC jurisprudence, certain guidelines can be derived from the decisions on just cause for the club. Various situations will be assessed in this chapter, such as the poor sporting performance of a player, the consequences if the player does not meet the requirement of a minimum number of matches or scored goals, the situation of unauthorised absence of the player for trainings or matches, and situations in relation to the player’s misbehaviour, such as drugs and alcohol abuse. Also, in the event that the player wishes to unilaterally terminate his contract with the club without any financial consequences, we note in this chapter that there must be just cause. For example, if the player has not received his salary for a substantial period of time, just cause exists. This is the most common form of just cause for players. Furthermore, we note that just cause can also exist if a player is sent to training out of the permanent (first) team of the club and that just cause might also exist if a player is not registered by a club. In the final part of this chapter the sporting just cause will also be brought to the readers’ attention.
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Notes
- 1.
FIFA Commentary, explanation Article 13, p. 38.
- 2.
FIFA Commentary, explanation Article 6, p. 24.
- 3.
FIFA Commentary, explanation Article 14, p. 39.
- 4.
DRC 10 June 2004, no. 64132.
- 5.
DRC 21 November 2006, no. 116338. See also DRC 30 November 2007, no. 117549.
- 6.
DRC 22 June 2007, no. 67675.
- 7.
DRC 14 September 2007, no. 97775.
- 8.
DRC 13 October 2010, no. 10102000.
- 9.
DRC 9 May 2011, no. 5112306. See also DRC 27 March 2014, no. 03143008.
- 10.
DRC 10 August 2011, no. 8112295.
- 11.
See also DRC 29 August 2011, no. 8112316.
- 12.
See also DRC 2 October 2012, no. 10123433.
- 13.
DRC 10 July 2013, no. 0713775. See also DRC 10 July 2013, no. 0713775, and DRC 14 August 2013, no. 08132573.
- 14.
DRC 10 August 2007, no. 87677. A casual condition is one which depends upon chance and is not within the control of either party to a contract.
- 15.
DRC 18 June 2009, no. 69311.
- 16.
DRC 10 May 2012, nos. 5121238 and 5121239.
- 17.
See also DRC 15 March 2013, no. 0313496, and DRC 26 October 2012, no. 10121653.
- 18.
DRC 7 February 2014, no. 0214233.
- 19.
In this CAS decision, CAS 2008/A/1447 E. v. Diyarbakirspor, award of 29 August 2008, the CAS Panel erroneously referred to the DRC decision of 10 August 2006.
- 20.
In the DRC case of 1 June 2005, the contract provided for the following clause: “In case that the team falls into the endangered zone on the league table the owner, the managing director or the chief trainer may withhold or withdraw the payment of bonuses”. The DRC concluded that the club’s decision to withdraw payment of the contractually agreed bonuses based on the cited Article, cannot be supported by FIFA. In this respect, the DRC deemed that the aforementioned rule was ambiguous and its application arbitrary, since it leads to an unacceptable result based on non-objective criteria. As a result, the DRC finally concluded that the player was entitled to receive the relevant bonuses; DRC 1 June 2005, no. 6526.
- 21.
DRC 1 June 2005, no. 6526.
- 22.
The contract proferentum principle is relevant, as was also referred to by Shakthar Donetsk in CAS 2010/O/2132, award of 28 September 2011. In the case CAS 2004/A/643 Hertha BSC Berlin v. G. and Club Atlético River Plate & RCD Mallorca, award of 1 March 2005, the CAS Panel decided that if the meaning of a provision is clear, it is not permissible for the parties to adduce evidence of their intentions. Furthermore, we derive from this case that it is absolutely relevant who drafted the contract. In the aforementioned CAS award of 1 March 2005, the contract was drafted by the club’s in–house lawyer, as a result of which the CAS Panel was of the opinion that the provision of the contract must, based on well-established principles, be construed contra proferentum.
- 23.
DRC 30 November 2007, no. 117311, DRC 28 September 2007, no. 97460 and no. 971002, DRC 22 June 2007, no. 67675, and DRC 10 August 2007, no. 871283.
- 24.
DRC 11 March 2005, no. 35174.
- 25.
DRC 12 January 2006, no. 16695.
- 26.
DRC 27 April 2006, no. 461021. See also DRC 12 January 2006, no. 16695.
- 27.
DRC 17 August 2006, no. 86833. See also DRC of 14 September 2007, no. 7924. In this decision the Chamber highlighted that, in general, potestative clauses, i.e. clauses that grant a right in favour of one contractual only, cannot be considered since they generally limit the rights of the other contractual party in an excessive manner and lead to an unjustified disadvantage of the latter towards the other.
- 28.
DRC 26 October 2012, no. 101211653.
- 29.
DRC 12 January 2006, no. 16695.
- 30.
DRC 21 November 2006, no. 116218.
- 31.
DRC 23 February 2007, no. 27958.
- 32.
DRC 3 October 2008, no. 10895.
- 33.
DRC 15 June 2011, no. 611286.
- 34.
DRC 31 October 2013, no. 10132005.
- 35.
DRC 7 February 2014, no. 0214233.
- 36.
DRC 27 February 2014, no. 02142790.
- 37.
DRC 2 November 2007, no. 21113. See also DRC 22 July 2004, no. 74653.
- 38.
DRC 28 September 2007, no. 97748.
- 39.
DRC 15 March 2013, no. 03132558.
- 40.
DRC 26 November 2004, no. 114534.
- 41.
DRC 28 July 2005, no. 75975.
- 42.
DRC 23 June 2005, no. 65657.
- 43.
DRC 11 March 2005, no. 3542.
- 44.
DRC 28 July 2005, no. 75975.
- 45.
DRC 27 April 2006, no. 46290.
- 46.
DRC 17 August 2006, no. 86833. See also DRC 12 January 2006, no. 16695, and DRC 27 April 2006, no. 46290.
- 47.
DRC 2 November 2007, no. 117466.
- 48.
DRC 22 June 2007, no. 67236.
- 49.
DRC 23 February 2007, no. 27958.
- 50.
DRC 4 April 2007, no. 471208.
- 51.
DRC 2 November 2007, 1176975. See also DRC decision of 28 September 2007, no. 971239, DRC 10 August 2007, no. 87597, DRC 22 June 2007, no. 67176, and DRC 31 October 2008, no. 108728. In its decision of 31 October 2008, the Chamber referred to its well-established jurisprudence with regard to the poor performance of a player. The DRC underlined that a player’s poor performance, in principle, does not constitute a valid reason to unilaterally terminate an employment contract. The DRC particularly underlined the general lack of objective criteria while assessing a player’s performance and held that such reasoning could not serve as just cause for the club to terminate the contract with its player. See also DRC 10 January 2008, no. 181247. In this case the DRC explicitly referred to the fact that according to well-established jurisprudence of the DRC the poor performance of a player cannot be accepted as just cause for the termination of the contract by a club.
- 52.
DRC 7 April 2011, no. 411438.
- 53.
Also in a case before CAS of 12 August 2010, the CAS decided that inadequate sporting performance cannot constitute just cause for a club to terminate the employment contract; CAS 2010/A/2049 Al Nasr Sports Club v. F.M., award of 12 August 2010. There is no breach of duty to work if the player does not play at the level expected by the club. This longstanding CAS case law was recalled in the cases CAS 2009/A/1784, award of 27 August 2009, CAS 2009/A/1932, award of 19 March 2010, and CAS 2010/A/2049, award of 12 August 2010.
- 54.
DRC 29 November 2013, no. 11133071.
- 55.
DRC 25 April 2013, no. 04132387.
- 56.
See also DRC 28 March 2014, no. 03141211. In this case, the DRC pointed out that the player’s level of fitness could not be a reason for the contract to become null and void. Also the CAS is quite clear in this respect. See CAS 2012/A/2844 Gussev Vitali v. C.S. Fotbal Club Astra & RPFL, award of 7 June 2013. Here it was stressed by the Sole Arbitrator that a player’s low performance does not constitute a valid reason to unilaterally terminate an employment contract. See also DRC 17 August 2014, no. 08143257, in which case the DRC Judge highlighted that a fine of EUR 6000 was imposed on the player by the club by means of a decision of the club’s board of directors rendered on 21 May 2012. The DRC concurred that, as opposed to the issue relating to outstanding payments on the basis of the agreement/contract, the execution of the disciplinary measure passed by the club, did not fall within the competence of the DRC Judge. Indeed, the execution of the internal decision relating to this fine is to be dealt with by the competent national authorities. Consequently, the DRC Judge agreed that the club’s debt towards the player on the basis of the agreement/contract cannot be compensated with the aforementioned fine of EUR 6000. As a result, the DRC Judge rejected the club’s respective argument.
- 57.
DRC 4 February 2005, no. 25247.
- 58.
DRC 27 April 2006, no. 46290.
- 59.
DRC 28 September 2006, no. 96391.
- 60.
DRC 28 March 2015, no. 0314132.
- 61.
DRC 13 May 2005, no. 55230.
- 62.
DRC 28 July 2005, no. 75570.
- 63.
DRC 12 January 2006, no. 16828.
- 64.
DRC 15 February 2008, no. 28580.
- 65.
DRC 10 December 2009, no. 129880.
- 66.
DRC 10 December 2009, no. 129881.
- 67.
DRC 28 March 2012, no. 3122702.
- 68.
DRC 28 June 2013, no. 06131988.
- 69.
See also TAS 2015/A/3871 Sergio Sebastián Ariosa Moreira c. Club Olimpia and TAS 2015/A/3882 Club Olimpia c. Sergio Sebastián Ariosa Moreira, award of 29 July 2015. See also DRC 28 March 2014, no. 03141211. In this case, the DRC pointed out that the player’s level of fitness could not be a reason for the contract to become null and void.
- 70.
In its decision of 31 October 2013, the Chamber reminded the parties of its well-established jurisprudence, according to which an injury or health condition of a player cannot be considered as a valid reason to cease payment of a player’s remuneration and to unilaterally terminate an employment contract. See DRC 31 October 2013, no. 10132005.
- 71.
DRC 7 February 2014, no. 02141221.
- 72.
DRC 10 June 2004, no. 6400276.
- 73.
DRC 28 July 2005, no. 75368. See also DRC 22 November 2002, no. 300702. This is the only decision which was published on the official website of the FIFA in 2002. For unknown reasons FIFA removed the decision from the list. See also DRC 10 June 2004, no. 6400276.
- 74.
DRC 12 January 2006, no. 16828.
- 75.
DRC 23 March 2006, no. 36460.
- 76.
DRC 23 March 2006, no. 36460.
- 77.
DRC 18 December 2012, no. 12121204.
- 78.
DRC 28 September 2006, no. 96391.
- 79.
DRC 14 September 2007, no. 97280.
- 80.
FIFA Commentary, explanation Article 14, p. 40.
- 81.
DRC 26 January 2011, no. 1111740.
- 82.
DRC 12 December 2013, no. 12131160.
- 83.
DRC 28 June 2013, no. 06131988.
- 84.
DRC 23 February 2007, no. 27835.
- 85.
DRC 27 February 2014, no. 02141999.
- 86.
DRC 28 March 2014, no. 0314734.
- 87.
DRC 28 March 2015, no. 03143127. In the DRC decision of 28 August 2014, no. 08143234, the Chamber decided that the club had not been able to prove that it had indeed requested the return of the player to continue their relationship. In view of the considerable period of non-communication between the parties, it could be concluded that both parties, in fact, no longer had any interest in continuing the employment contract.
- 88.
DRC 23 February 2007, no. 27835.
- 89.
DRC 2 November 2007, 2117.
- 90.
DRC 19 February 2008, no. 29708.
- 91.
FIFA Commentary, explanation Article 14, p. 40.
- 92.
CAS 2010/A/2049 Al Nasr Sports Club v. F. M., award of 12 August 2010.
- 93.
DRC 8 June 2007, no. 67675.
- 94.
DRC 2 November 2007, no. 2117.
- 95.
DRC 17 May 2013, no. 05132419.
- 96.
DRC 27 February 2013, no. 02132606.
- 97.
DRC 10 February 2015, no. 02151030.
- 98.
See also Duval 2015.
- 99.
DRC 21 February 2006, no. 26439.
- 100.
DRC 12 January 2007, no. 17595.
- 101.
DRC 7 February 2014, no. 0214233.
- 102.
CAS 2005/A/876 Adrian Mutu v. Chelsea Football Club, award of 15 December 2005.
- 103.
DRC 26 October 2006, no. 106176.
- 104.
CAS 2006/A/1192 Chelsea Football Club v. Adrian Mutu, award of 21 May 2007.
- 105.
CAS 2008/A/1644 Adrian Mutu v. Chelsea Football Club, award of 31 July 2009.
- 106.
CAS 2013/A/3365 Juventus FC v. Chelsea FC and CAS 2013/A/1366 A.S. Livorno Calcio S.p.A. v. Chelsea FC, award of 21 January 2015.
- 107.
CAS 2009/A/1956 Club Tofta Otrottarfelag, B68 v. Ralph van Dooren, award of 16 February 2010.
- 108.
DRC 2 November 2007, no. 117923.
- 109.
For example and as a side-note, obviously financial difficulties are not a valid reason for non-payment or the delay of payment of transfer fees. See PSC 21 January 2013, no. 01132563. See also CAS 2012/A/3035 Parma FC SpS v. VFL Wolfsburg, award of 26 March 2013, and CAS 2006/A/1008 Rayo Vallecano de Madrid SAD v. FIFA, award of 21 August 2006.
- 110.
DRC 10 June 2004, no. 64133.
- 111.
DRC 23 March 2006, no. 36460. See also DRC 8 June 2007, no. 67229, and DRC 22 June 2007, no. 67620.
- 112.
DRC 26 October 2006, no. 1061207.
- 113.
DRC 12 January 2007, no. 17595.
- 114.
DRC 23 February 2007, no. 27835.
- 115.
DRC 23 February 2007, no. 27698.
- 116.
DRC 8 June 2007, no. 67770.
- 117.
DRC 10 August 2007, no. 87745.
- 118.
In an award of 23 February 2009, the CAS decided that an employment contract which has been concluded for a fixed term can only be terminated prior to expiry of the term of the contract if there is just cause. Just cause exists when the party who terminated, cannot be expected to continue the employment relationship in good faith. See CAS 2008/A/1517 Ionikos FC v. C., award of 23 February 2009. For example, a grave breach of duty by the employee is just cause, according to the CAS. A valid reason for the unilateral termination of the contract has to be admitted when the essential conditions under which the contract was concluded are no longer present, whereas only a breach which is of a certain severity justifies termination of a contract without prior warning. From the player’s perspective, the main cause for termination of an employment contract is because of non-payment or late payment of the remuneration owed under the contract. In the cases CAS 2008/A/1517 Ionikos FC v. C., award of 23 February 2009, and CAS 2008/A/1589, award of 20 February 2009, the CAS Panels confirmed that the players were entitled to terminate their employment contracts due to the seriousness and the repetition of the violations by the clubs concerned. Also in its award of 29 February 2009, the CAS Panel decided that a player has just cause to terminate the employment agreement if his employer has not met its obligations as an employer, i.e. it has not paid the player’s salary and did not react when the player formally offered his services, making himself available to his employer and requesting access to his employer’s facilities. See CAS 2008/A/1589 MKE Ankaragücü Spor Külübü v. J., award of 29 February 2009. The party in breach must compensate the other party, considering all claims based on the employment agreement. The employer in breach of a contract signed for a definite period of time must pay the employee his salary until the end of the period fixed in the contract. See also CAS 2006/A/1100 Eltaib and Gaziantepspor, award of 15 November 2006.
- 119.
DRC 28 September 2007, no. 97545. See also DRC 8 June 2007, no. 6733. In this case the DRC pointed out that, according to its long-standing jurisprudence, a delay of salary payments of a couple of days could not be considered just cause for the termination of an employment contract.
- 120.
DRC 5 December 2008, no. 128557.
- 121.
DRC 19 February 2009, no. 29908.
- 122.
DRC 15 May 2009, no. 59269.
- 123.
In the award of 16 October 2012, the CAS Panel emphasized that non-payment of remuneration constitutes just cause for termination, under the condition that the outstanding amount may not be insubstantial or completely secondary and the employee has given a warning to the employer, arguing a breach of contract. See CAS 2011/O/25211 Matteo Ferrari v. Besiktas Futbol Yatirimiari San. Ve Tie. A.S., award of 16 October 2012. Reference was also made to the decision CAS 2006/A/1180, marg. no. 8.4, and CAS 2006/A/1100, marg. no. 8.2.5 ff. Despite the fact that the contract contained a clause whereby the player had to warn the club in case of outstanding salary and “if the club does not pay the due amount within 15 days after receiving this notification, the present agreement shall automatically terminate for just cause”, the player had sent a written notification, but the player did not wait for the fifteen days. Contrary to the club’s opinion, according to the CAS Panel, the player did not have to wait until the end of the 15 day period.
- 124.
DRC 10 December 2009, no. 129795.
- 125.
DRC 9 May 2011, no. 5112513.
- 126.
DRC 7 September 2011, no. 9111901. In an unpublished DRC decision of 1 February 2012, the DRC reiterated that it had, on numerous occasions, upheld the unilateral termination of an employment contract by players who had, depending on the particular circumstances of the relevant case at hand, not received their salaries for two or more months. In this case, the DRC concluded that the delay of 2 months is already a sufficiently long period of time to justify a unilateral termination of the employment contract. See also DRC 25 September 2014, no. 09143007.
- 127.
DRC 24 November 2011, no. 1111796.
- 128.
DRC 26 April 2012, no. 412871.
- 129.
DRC 18 December 2012, no. 12121204.
- 130.
DRC 23 January 2013, no. 0113797.
- 131.
DRC 27 February 2013, no. 02131190.
- 132.
DRC 15 March 2013, no. 03132433.
- 133.
CAS 2006/A/1180 Galatasaray SK v. Frank Ribéry & Olympique de Marseille, award of 24 April 2007.
- 134.
The CAS held that even the non-payment of one month’s salary does not provide the right to terminate employment contracts in the absence of a demand for payment. See CAS 2005/A/893 Metsu v. Al-Ain Sports Club, award of 16 February 2006.
- 135.
See also CAS 2005/A/893 and CAS 2006/A/1100, marg. no. 8.2.5 et seq. See also CAS 2005/A/937 Györy Eto v. Mr. Marko Kartello, award of 7 April 2006 and CAS 2005/A/866 F.C. Hapoel KIA Beer-Sheva v. Siston, award of 30 March 2006.
- 136.
In a case before the CAS of 29 September 2009, CAS 2009/A/1765 Sport Lisboa E Benfica v. Club Atlético de Madrid SAD & FIFA, the CAS Panel also referred to this case. See also CAS 2007/A/1320-1321 Feyenoord Rotterdam v. Clube de Regatas do Flamengo, award of 26 November 2007. Also in other CAS cases, the CAS had to decide on outstanding salaries. For example, in the award of the CAS of 29 August 2008, the CAS Panel stressed that the definition of just cause in Article 14 of the FIFA RSTP (in this case 2005 edition), and whether just cause exists, is established on a case-by-case basis. See CAS 2008/A/1447 E. v. Diyarbakirspor, award of 29 August 2008. According to the CAS, if we fall back on Swiss law, an employment contract which has been concluded for a fixed term can only be terminated prior to expiry of the term of the contract if there is just cause, which can be established as any circumstance, the presence of which means that the party that terminated cannot be expected to continue the employment relationship in good faith. The CAS decided that the non-payment or late payment of remuneration by an employer, in principle, does constitute just cause for termination of the contract for the employer’s payment obligation is its main obligation towards the employee. If it fails to meet its obligation, the employee can no longer be expected to continue to be bound by the contract in the future. For the interpretation of the compensation of Article 17 of the FIFA RSTP 2005 apply the principles of Swiss employment law and the existing CAS jurisprudence. According to the Swiss Code of Obligations , the injured party receives integral reparation of his damages and compensation taking into account all claims arising from the employment relationship. According to Swiss legal doctrine, the injured party is entitled to integral reparation of its damages. According to the CAS, the damages taken into account are not only those that may have caused the act or the omission that justify the termination but also the positive interest. The positive damages of the employee are the salary and other material income that he would have had if the contract had been executed until its natural expiration.
- 137.
DRC 6 November 2014, no. 11141064. As a side-note, many cases before the PSC concern claims by coaches against clubs for outstanding salary. The jurisprudence of the PSC shows that one month’s outstanding salary is not enough and does not justify a premature and unilateral termination. See PSC 15 August 2012, no. 08122106. However, from the jurisprudence it follows that 2 months is enough. PSC 15 August 2012, no. 8121992 and PSC 15 August 2012, no. 8121464. In these cases the PSC is of the opinion that the breach of contract perpetrated by a club has then reached such a level that could justify a termination of the agreement between the club and the coach. In the event that the parties agree upon a shorter period than 2 months, for example a clause that “All the payments shall be paid to the Head Coach by the club on time and if the club delays more than 25 days from the due time of each payment, it will be deemed as the termination of the contract by the Club and The Club shall pay the compensation amount mentioned in Article 8-2 of the contract to The Head Coach”, this clause will be leading. See PSC 30 January 2012, no. 112275. In other words, contractual arrangements can justify earlier termination. See also DRC 17 January 2014, no. 0114044.
- 138.
See CAS 2015/A/3993 Patrick Leugueun Nkenda v. AEL Limasol FC, award of 14 January 2016.
- 139.
CAS 2013/A/3091 FC Nantes v. FIFA & Al Nasr Sports Club, CAS 2013/A/3092 Ismaël Bangoura v. Al Nasr Sports Club & FIFA and CAS 2013/A/3093 Al Nasr Sports Club v. Ismaël Bangoura & FC Nantes, award of 2 July 2013. When Swiss law applies, as in the particular case, Article 337 para 2 of the Swiss Code of Obligations (“CO”) provides that “Any circumstances which, according to the rules of good faith, mean that the party who has given notice of termination cannot be required to continue the employment relationship, shall be deemed good reason”. The concept of just cause as defined in Article 14 RSTP must therefore be likened to that of “good reason” within the meaning of Article 337 para 2 CO.
- 140.
See for example DRC 5 December 2008, no. 128557. See also DRC 8 June 2007, no. 6733.
- 141.
See for example DRC 23 March 2006, no. 36460, DRC 26 October 2006, no. 1061207, and DRC 22 June 2007, no. 67620.
- 142.
DRC 10 June 2004, no. 64133.
- 143.
See for example DRC 5 December 2008, no. 128557, and 7 September 2011, no. 9111901.
- 144.
See DRC decision of 9 May 2011, no. 5112513.
- 145.
DRC 5 May 2009, no. 59269.
- 146.
CAS 2005/A/893 Metsu v. Al-Ain Sports Club, award of 16 February 2006.
- 147.
DRC 24 November 2011, no. 111796.
- 148.
See for example DRC 10 December 2009, no. 129795.
- 149.
DRC 27 February 2013, no. 02131190. The outcome in this case is also in line with the above decision of 10 December 2009, no. 129795, whereby just cause was present while there was no written warning.
- 150.
CAS 2005/A/893 Metsu v. Al-Ain Sports Club, award of 16 February 2006.
- 151.
DRC 28 September 2007, no. 97545. See also DRC 8 June 2007, no. 6733.
- 152.
DRC 23 February 2007, no. 27698.
- 153.
DRC 8 June 2007, no. 67770.
- 154.
DRC 6 November 2014, no. 11141064. As said before, in appeal the validity of the “grace period” was confirmed by the CAS; See CAS 2015/A/3993 Patrick Leugueun Nkenda v. AEL Limasol FC, award of 14 January 2016.
- 155.
In a case before the CAS of 2009, CAS 2009/A/1765 Sport Lisboa E Benfica v. Club Atlético de Madrid SAD & FIFA, award of 29 September 2009, the CAS Panel also referred to this case. See also CAS 2007/A/1320-1321 Feyenoord Rotterdam v. Clube de Regatas do Flamengo, award of 26 November 2007.
- 156.
DRC 12 January 2007, no. 17595.
- 157.
DRC 23 February 2007, no. 27835.
- 158.
DRC 23 February 2007, no. 27698.
- 159.
DRC 23 February 2007, no. 27835.
- 160.
DRC 1 June 2005, no. 65850.
- 161.
DRC 9 May 2014, no. 05143281.
- 162.
DRC 17 August 2006, no. 86154.
- 163.
DRC 8 June 2007, no. 67229.
- 164.
In a Dutch case, the Dutch KNVB Arbitration Tribunal had to decide on a similar issue. In this case the player Perez was not permitted to train any longer with the first team of Ajax and was relegated by his coach Marco van Basten to the second team. The player went to court to challenge this decision. The Dutch KNVB Arbitration Tribunal decided that as a result of the fact that the employment contract contained a clause which stated that the player had to be “available for matches and training of the first and second team”, the player had no legal ground to challenge the decision of Ajax to play in the second team. Therefore Ajax was permitted to ban the player from training with the first team. See Dutch KNVB Arbitration Tribunal 29 August 2008, no. 1214.
- 165.
DRC 26 April 2012, no. 412871.
- 166.
DRC 15 March 2013, no. 03132433.
- 167.
DRC 13 December 2013, no. 12131045.
- 168.
DRC 12 December 2013, no. 12132884.
- 169.
DRC 27 February 2014, no. 02142436.
- 170.
In an unpublished case of the DRC of 21 May 2015, the player was merely informed that he might be re-registered.
- 171.
DRC 28 March 2014, no. 0314734.
- 172.
CAS 2011/A/2428 Igor Strelkov v. CJSC FC Krylia Sovetov, award of 6 February 2012.
- 173.
In an award of 23 February 2009, the CAS decided that a valid reason for the unilateral termination of the contract has to be admitted when the essential conditions under which the contract was concluded are no longer present, whereas only a breach which is of a certain severity justifies termination of a contract without prior warning. CAS 2008/A/1517 Ionikos FC v. C., award of 23 February 2009. A club is in abuse of its rights—and therefore the player may terminate the employment relationship with just cause—if the club requires from the player to attend training sessions at odd times, such as at 7:00 am on January 1st, while the rest of the team is officially on Christmas leave. See also CAS 2009/A/1956, award of 16 February 2010 and CAS 2009/A/1932, award of 19 March 2010. Also in CAS 2008/A/1517 Ionikos FC v. C., award of 23 February 2009 and CAS 2008/A/1589, award of 20 February 2009, the CAS Panels confirmed that the players were entitled to terminate their employment contracts due to the seriousness and repetition of the violations by the clubs concerned.
- 174.
See also CAS 2011/O/25211 Matteo Ferrari v. Besiktas Futbol Yatirimiari San. Ve Tie. A.S., award of 16 October 2012. Reference was also made to the award CAS 2006/A/1180, marg. no. 8.4 and CAS 2006/A/1100, marg. no. 8.2.5 ff.
- 175.
CAS 2012/O/2991 Derek Boateng v. Dnipro Dnipropetrovsk, award of 17 April 2013.
- 176.
CAS 2013/A/3091 FC Nantes v. FIFA & Al Nasr Sports Club, CAS 2013/A/3092 Ismaël Bangoura v. Al Nasr Sports Club & FIFA, CAS 2013/A/3093 Al Nasr Sports Club v. Ismaël Bangoura & FC Nantes, award of 2 July 2013.
- 177.
See also CAS 2014/A/3679 FC Dacia Chisinau v. Goran Stankovski, award of 17 February 2015.
- 178.
CAS 2014/A/3642 Erik Salkic v. Football Union of Russia & Professional Football Club Arsenal, undated award. See also CAS 2007/A/1369 O. v. FC Krylia Sovetov Samara, award of 6 March 2008.
- 179.
DRC 15 March 2013, no. 03132433.
- 180.
In the former 2001 edition of the RSTP, the concept of sporting just cause had a broader application. Former conditions such as injury, suspension, player field position, etc., no longer apply.
- 181.
See also CAS 2012/A/2844 Gussev v. C.S. Fotbal Club Astra & RPFL, award of 2 February 2015. From this case it follows that it is well-established CAS jurisprudence that only a player can raise the grounds for sporting just cause.
- 182.
FIFA Commentary, explanation Article 15, p. 43.
- 183.
FIFA Commentary, explanation Article 15 under 2, p. 41.
- 184.
See also Gradev 2010, p. 111.
- 185.
FIFA Commentary, explanation Article 15, p. 42.
- 186.
FIFA Commentary, explanation Article 15, p. 44.
- 187.
FIFA Commentary, explanation Article 15, p. 43, footnote 68.
- 188.
DRC 1 June 2005, no. 65850.
- 189.
DRC 23 March 2006, no. 631290.
- 190.
DRC 10 August 2007, no. 871322.
- 191.
CAS 2007/A/1369 O. v. FC Krylia Sovetov Samara, award of 6 March 2008.
- 192.
In another case before the CAS of 30 July 2009, it was decided by the CAS that Article 15 RSTP specifically governs termination by a professional player because the latter has, in the course of the season, appeared in fewer than ten per cent of the official matches in which his club has been involved. However, this sporting just cause is reserved for established professionals, according to the CAS Panel, and the very low threshold that is set in the regulations can obviously not be invoked by a player whose participation in the official matches of his team is close to 60 %. See CAS 2008/A/1696, award of 30 July 2009. See also CAS 2013/A/3107 FC BATE Borisov v. Aleksandr Petrovich Gutor, award of 31 January 2014. In the latter case, the player failed to comply with one of the 3 conditions, i.e. “the 15-day term”.
- 193.
CAS 2013/A/3091 FC Nantes v. FIFA & Al Nasr Sports Club, CAS 2013/A/3092 Ismaël Bangoura v. Al Nasr Sports Club & FIFA, CAS 2013/A/3093 Al Nasr Sports Club v. Ismaël Bangoura & FC Nantes, award of 2 July 2013.
- 194.
In another case before the CAS of 31 January 2014, it was decided by the CAS that a player is entitled to unilaterally terminate his employment contract on the basis of sporting just cause if three cumulative prerequisites are met: (a) the player has professional status for three consecutive seasons, (b) the player appeared in less than 10 % of the official games on the club’s main roster in all competitions the has participated in, and (c) the player files the appropriate request with the club within a 15-day period following the last official game of the season of the club. In this case the player failed to comply with the third prerequisite, i.e. the legal deadline. The player was thus not entitled to terminate the contract based on sporting just cause. See CAS 2013/A/1307, award of 31 January 2014.
- 195.
See also Gradev 2010, p. 111.
References
Duval A (2015) Cocaine, doping and the court of arbitration for sport. Int Sports Law J 1(2):55–63
Gradev G (2010) Sporting just cause and the relating jurisprudence of FIFA and CAS. Int Sports Law J 1(2):2
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de Weger, F. (2016). Termination. In: The Jurisprudence of the FIFA Dispute Resolution Chamber. ASSER International Sports Law Series. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-126-5_8
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