ISLJ 2008-1-2_Def - TMC Asser Instituut

leading to the dispute arose”. The facts leading to the disputeoccurred when the Appellant denied the Player’s request to considerthe employment contract as terminated upon expiration of thethree year term indicated in Article 36: only in that moment couldthe Player exercise his right to seek the registration for a club of hischoice. In addition, the Player does not seem to have acted in badfaith vis-à-vis the Appellant. On one side, the Appellant does notoffer any evidence of that bad faith. On the other side, the documentson file clearly show that the Player made known his positionto PSV before turning to FIFA.- Article 36 of the FIFA Players’ Regulations 1997, as invoked by thePlayer, was correctly applied by the FIFA bodies. In this framework,the fact that the registration of the Player with the KNVBwas made only on 19 January 2002, when he had reached the ageof 18 years, is irrelevant. At the moment in which the Player contractuallyexpressed his consent to be bound to play for PSV, he wasminor of age. And Article 36 of the FIFA Players’ Regulations 1997makes a clear and reasonable reference to the time of signature asthe moment relevant to determine the age of the player. In thesame way, the Panel fully agrees with the PSC as to the interpretationof the Declaration of 2002, and confirms that it cannot beconstrued as having the meaning of a confirmation by the Player,no longer minor of age, of the duration of his employment contract.In fact, by means of said declaration the Player stated that hewould unconditionally respect the labour and image rights agreementhe had signed with PSV Eindhoven on 21 July 2001, in orderto be authorized to leave for Brazil for a certain period, withoutbeing paid and covering all his medical expenses: the employmentcontract was left unchanged, so that the parties thereto had all therights, duties and claims with respect to the same contract, as theyhad before. Also after the signature of the Declaration of 2002 thePlayer was therefore entitled to seek a remedy under Article 36 ofthe FIFA Players’ Regulations 1997.- n principle a person should not be compelled to remain in theemployment of a particular employer, as the Appellant so requests.An employee who breaches an employment contract by wrongfuland premature withdrawal from it may be liable in damages or evenbe imposed a sanction (Article 23 of the FIFA Players’ Regulations2001), but not to an injunction to remain with his employer. Thisis the position under Swiss law (Article 337(d) CO) and under theCAS jurisprudence.Arbitration CAS 2005/A/840 P. v/ Shangai Shenhua SVA SMEGFC, award of 21 December 2005Panel: Mr Dirk-Reiner Martens (Germany), President; Mr José JuanPinto (Spain); Mr Michele Bernasconi (Switzerland)The Court of Arbitration for Sport (CAS) has decided to allow theappeal filed by Mr P.(“the Appellant”) against the decision issued on4 February 2005 by the FIFA Players’ Status Committee rejecting theplayer’s claim for compensation in the amount of USD 2,2 milliondue to him under the employment contract with the Chinese club ofShangai Shenhua SVA SMEG FC (“the Respondent”) for the 2004and 2005 seasons. The latter was therefore ordered to pay the amountof USD 1,049,068 to P..On 8 March 2003, the Player and the Club signed a three yearemployment contract (the “Player Contract”), until 28 February2006. Art. 8 of the contract stated that if “the starting appearance[was] less than 70 % out of the whole CFA League A games (onlystarting appearance or total appearance time per game no less than 45minutes can be counted) by his own will, [the Club] [had] the rightto terminate this agreement, and transfer [the Player] to other footballclub, except for injuries which should be confirmed by the doctorsor hospital appointed by [the Club]”. Art. 12 stated that the “contract[came] into effect contingent upon [the Player] meeting the 3requirements listed below (...) : 1. [The Player] must acquire internationalclearance from his registered association (...)”.After the Parties had signed the Player Contract, the FIFA Players’Status Office suspended P. for having unilaterally terminated his previousemployment contract with Vasco da Gama which was to havecontinued until 21 June 2003. Vasco da Gama and the Club eventuallyreached an agreement on the release of the Player. Therefore, FIFAissued a letter of clearance for the Player on 20 June 2003, but as aconsequence of the FIFA suspension, the Player had missed fivegames of the Club in the 2003 season. He played his first game on 2July 2003 and received no salary for the period from March to June2003.On 1 March 2004 the Club sent a notice of termination to thePlayer. According to a statistics sheet prepared by the Club, a total of28 games were played by the Club in the 2003 season. Out of these 28games, the Player had missed the first five due to the FIFA suspension.In addition, according to the statistics of the Club, five more gameswere not “counted” because the Player had played less than 45 minutesor not at all in these games. Therefore the Player had only played 18out of 28 games, i.e. 64 % of all games during the 2003 season.For the 2003 season, i.e. from July 2003 trough February 2004, thePlayer received all payments due to him under the Player Contract.On 5 March 2004 the Player filed a complaint to FIFA against thetermination of his Player Contract and requested a compensation inthe amount of USD 2.2 million, the amount due to him under thePlayer Contract for the 2004 and 2005 seasons. After leaving theChinese club in March 2004, the Player played for Vasco da Gama(May 2004 - Dec. 2004), Al Ittihad (Jan. 2005 - Aug. 2005) and is currentlyplaying for Fluminense (since Aug. 2005).On 4 February 2005 the FIFA Dispute Resolution Chamber issueda decision (the “Decision”) whereby it rejected the Player’s claim.According to the DRC, the termination clause in Article 8.1 of thePlayer Contract had to be applied separately with respect to each individualseason for which the Player is under contract with the Club. Inaddition, the words “by his own will” in the second sentence ofArticle 8.1 had to be interpreted as referring to the “will” of the Club,i.e. primarily the decision of the coach. According to FIFA, the clausewould have been senseless if it was construed to refer to the “will” ofthe Player because the club would have been entitled to take disciplinarysanctions against the Player if he were to miss games by “his ownwill”. As a consequence of these considerations, FIFA concluded thatthe player only played 18 out of the 28 2003 season games of the Cluband thus only had a 64% starting appearance. This is not expresslystated in the Decision but derives from FIFA’s reasons in the 4February 2005 decision.On 4 March 2005 the Player filed an appeal to CAS against theFIFA Decision. In its written decision, the Panel considered that:- The words “out of the whole CFA League A games” has to be interpretedas referring individually to each of the three seasons forwhich the Player was under contract with the Club and not theentire three-year duration of the Player Contract. The former is thenatural interpretation of this clause and there is no evidence orother indication that exceptionally a reference to a three-year periodwas intended.- As a result of Art. 12 of the Player Contract, the latter did not takeeffect until 20 June 2003, the date on which FIFA issued the letter ofclearance. The parties seem to have been in full agreement with thisconstruction of Art. 12 in that the Player took no issue with the paymentof salaries commencing only after that date. The Club playeda total of 23 games during the period from the effective date of thePlayer Contract, namely 20 June 2003, until the end of the season2003. Even if one were to disregard the five games which the Playermissed during that period because of a decision by the coach, thePlayer played 18 games for purposes of the calculation of the Player’sappearance rate. This resultants in an appearance rate of 78%, a ratiowhich does not justify a termination pursuant to Art. 8.1.- Under the CAS jurisprudence, as a matter of principle, and inaccordance with Article 337c of the Swiss Code of Obligations(CO), a party to a fixed-term employment contract which is undulyand prematurely terminated by the other party is entitled by wayof compensation of his damages to payment of the salary that hewould have earned until the scheduled end of the contract, if such136 2008/1-2DOCUMENTS