(CAS) Bulletin - Tribunal Arbitral du Sport / TAS

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4A_162/2011 ** Judgment of 20 July 2011 First Civil Law Court Composition Federal Tribunal Judge Klett, President Federal Tribunal Judge Corboz Federal Tribunal Judge Kiss Clerk of the Court: Mr Leemann Parties X.______ Appellant, represented by Mr Philipp J. Dickenmann and Mr Reto Hunsperger, versus Jamaican Football Federation Respondent, represented by Abogado Gianpaolo Monteneri Party joined to the proceedings, Fédération Internationale de Football Association (FIFA) , represented by Mr. Christian Jenny. * From Charles Poncet’s translation, courtesy of the law fi rm ZPG/Geneva (www.praetor.ch). * Translator’s note: Quote as X._____ v. Jamaican Football Federation and FIFA, 4A_162/2011. The original of the decision is in German. The text is available on the website of the Federal Tribunal www.bger.ch. Facts A. A.a X________ (the Appellant) was born in what is today Serbia. He was previously a professional football player and is presently active as football coach. He lives in Mexico City and adopted Mexican citizenship. The Jamaican Football Federation (Respondent) is the national football federation of Jamaica and as such a member of the Fédération Internationale de Football Association (FIFA; participant in the proceedings), a non-profi t corporation under Swiss law with headquarters in Zurich. A.b On December 1 st , 2006 the Appellant entered into an employment contract with the Respondent. He undertook there to act as technical director and chief coach of the national team of Jamaica between November 15, 2006 and November 14, 2010. A yearly salary of USD 1’000’000, namely a global amount of USD 4’000’000 for the four years of the contract, was foreseen as compensation. The Appellant’s duties were described as follows at paragraph 5 of the employment contract: 5(1): “Be responsible for and undertake the preparation, supervision and management of All National Football Teams; the assessment, supervision and upgrading of all national coaches; and such other matters necessary for the smooth and orderly development of the sport of football in Jamaica”; 5(2): “Devote his full time and best efforts to the performance of the terms of this Agreement. In this regard, the Technical Director & Head Coach of The Senior Team agrees not to engage Jugements du Tribunal Fédéral / Judgments of the Federal Tribunal - 223
in the provisions of any other services, or in any business or commercial activity without the prior written approval of the Federation”; 5(3): “Advance the coaching methods of football teams island-wide in accordance with the National Football Programme approved by the Federation”; 5(7): “Prepare and outline a plan of action for the comprehensive development of local football including all National Teams and present this to the Board of Directors of the Federation within six (6) months of the signing of this agreement.” 1 According to paragraph 9 (2) the Contract is to be terminated without further ado when “the Technical Director & Head Coach of the Senior Team breaches Clause 5 or 7 hereof or habitually neglects the duties he is required to perform under the term of this Agreement, and the Federation gives thirty (30) days written notice to the Technical Director & Head Coach of the Senior Team of its intention to terminate this Agreement upon the expiry of such notice.” 2 Paragraph 9 (4) also provides that the Respondent could terminate the employment contract by giving thirty days notice to the extent that the national team should not be qualifi ed for the 2010 World Championship in South Africa. A.c By letter of November 7, 2010 the Respondent terminated the contract with the Appellant and relied in this respect on paragraph 9 (2), 5 (1), 5 (3) and 5 (7) of the employment contract. It claimed that the Appellant would in summary have failed: a) To prepare, supervise and train the national team and other football teams with the required knowledge, care and involvement, which would have contributed to the bad results and therefore violated paragraph 5 (1) of the employment contract; b) To develop a program to improve the national coaches, which would be a further violation of paragraph 5 (1); c) To develop a plan for the improvement of the coaching methods of the football teams of Jamaica in accordance with the national football program, which would have violated 1. Translator’s note: In English in the original text. 2. Translator’s note: In English in the original text. paragraph 5 (3) of the employment Contract; d) To present a plan of action for the comprehensive development of local football, which would be a violation of paragraph 5 (3). The Respondent pointed out in its letter that it would pay the Appellant USD 62’500 as compensation for disregarding the thirty days notice requirement contained in the Contract, USD 330’500 for the salary due until November 15, 2007 for the fi rst contractual year and USD 7’553 as reimbursement of expenses, namely USD 400’553 in total. B. B.a On February 28, 2008 the Appellant fi led a claim with the Players’ Status Committee of FIFA against the Respondent and demanded payment of more than USD 3’000’000 for unjustifi ed termination and USD 1’000’000 as damages to his reputation. On February 10, 2010 the FIFA Players’ Status Committee awarded the Appellant an amount of USD 1’000’000 for unjustifi ed termination. In particular it found that the Respondent had provided no proof of the alleged contractual violations. The Players’ Status Committee furthermore found that the employment contract would have terminated as of November 19, 2008 according to paragraph 9 (4) as it turned out that the Jamaican national team could not be qualifi ed for the 2010 World Championship. Accordingly the Appellant was merely entitled to his salary until that point in time and not until the end of the three contractual years remaining. The Players’ Status Committee rejected the claim for damages to the Appellant’s reputation. B.b B.b.a On April 28, 2010 the Respondent appealed the decision of the FIFA Players’ Status Committee of February 10, 2010 to the Court of Arbitration for Sport (CAS). On May 10, 2010 it submitted the reasons in support of its appeal to the CAS. It submitted principally that the decision under appeal should be annulled for lack of jurisdiction of the FIFA Players’ Status Committee. Alternatively it submitted that the decision under appeal of February 10, 2010 was to be annulled, that the Appellant’s claim for damages was to be rejected and that the Appellant should be ordered to pay USD 500’000 with interest at 5%. Jugements du Tribunal Fédéral / Judgment of the Federal Tribunal - 224
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Bulletin TAS CAS Bulletin 1 / 2012
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Arbitration CAS 2011/O/2422 .......
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“ Sports law ”: implications fo
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and procedures of the CAS 10 . The
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2. Considering the plenary power of
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over the emerging game of indoor so
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appeals arbitration proceedings, ab
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troubling because . . . United Stat
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La médiation : processus et applic
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Ainsi, la solution au confl it éma
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voir sa demande profonde comprise :
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pour les parties elles-mêmes. Cell
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divergent sur l’exécution (mer/m
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Ces deux grands courants font l’o
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peine de retomber rapidement dans u
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mémoires déposés par les parties
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d’un règlement d’obtenir un av
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• une brève description des moye
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R64.2 (…) R65 Appels contre des d
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written comments and shall give bri
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his own discretion, the questions s
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strong links between the two 1 . In
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According to Article 17.4 “If any
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Finally, in the absence of other de
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epresentative (Respondent) argued t
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Figure 2: Orders on language in CAS
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litiges pouvant être soumis à la
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au lien du litige en cause avec le
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Contrairement aux autres institutio
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coûts doivent être raisonnables 4
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Investigating magistrate no. 31 of
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2. Proper Defendants Article 282 of
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interference by state courts) with
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against doping in sports. To achiev
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Arbitration CAS 2010/A/2091 Dennis
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had stated that his claim had been
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effectiveness and validity of that
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another players’ agent (…) oper
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Beitar FC. In the Appellant’s vie
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The referred letter, in its pertine
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8. Condemn the Respondent to the pa
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It is clear for the Panel that the
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damage. There is wilful damage when
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in the determination of the compens
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Arbitration TAS 2010/A/2220 Corina
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En date du 27 août 2010, l’Appel
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2010, le droit de Greffe acquitté
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Il relève en effet que leur versio
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Arbitration C AS 2010/A/2275 Croati
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of golf clubs in Croatia had withdr
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(depending upon the translation) th
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waiting until the eve of the AGM 20
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provisional suspension and also to
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that it did not have any particular
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c) The resolution fi le dated Febru
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2011, Art. 156 no. 11 ff) if the ev
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Article 293 UCI ADR determines the
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The Decision seems to be based on t
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clenbuterol can only have entered t
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- how the Prohibited Substance ente
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entry into his system of the Prohib
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which will be addressed in detail b
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in those countries is rampant. Sinc
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as high as 1 out of 100 slaughtered
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athletes having tested positive to
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illustrate that his blood values ar
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specifi c gravity of 1.020. Without
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values of subjects that did not und
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urine tests performed the evenings
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WADA that the calculations regardin
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One of the reasons for that could b
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ingested by him was contaminated wi
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The Athlete refers the Panel to the
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athlete but withdrawn once the time
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The USOC argues that the IOC Regula
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period of ineligibility (non-partic
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Arbitrage TAS 2011/A/2433 Amadou Di
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précisions sur les offres que le Q
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estrictions, non, entre les comité
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En date du 3 février 2011, la Comm
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II 271; H.M. RIEMER, Berner Komment
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onne foi et de respect de la procé
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son exploitation mais, comme observ
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des droits de la personnalité. L
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ne peut que prendre note de remarqu
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En l’espèce, celui qui cherchait
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évidence le fait que leur “condu
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Page 177 and 178: Extracts from the legal fi ndings A
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Page 183 and 184: its position on OLA’s request for
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Page 197 and 198: It results from the above that UEFA
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Page 209 and 210: E. Conclusion In summary, the Panel
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Page 217 and 218: * * 4A_404/2010 Judgment of 19 Apri
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Page 225: that he is a Turkish citizen, who p
Page 229 and 230: Respondent had their domicile, seat
Page 231 and 232: evidential submission took place ti
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Page 237 and 238: 4A_428/2011 Arrêt du 13 février 2
Page 239 and 240: interdiction d’exécuter les sanc
Page 241 and 242: Il leur a cependant échappé que c
Page 243 and 244: éférence (arrêt 4A_246/2011 du 7
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Page 247 and 248: 4A_652/2011 Arrêt du 7 mars 2012 I
Page 249: Publications récentes relatives au
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