2008/A/1447 - Tribunal Arbitral du Sport / TAS

CAS 2008/A/1447
E.. v. Diyarbakirspor Kulübü,
award of 29 August 2008
12
“If the valid reason for the termination of the employment relationship without notice is one party's conduct
contrary to the agreement, such party shall fully compensate for damages, taking into account all claims arising
from the employment relationship.
In all other cases, the judge shall decide in his discretion on the financial consequences of a termination without
notice, taking into account all circumstances”.
30. Article 337c of the Swiss CO, article which deals with the consequences of unjustified
employment termination, provides that:
“If the employer dismissed the employee without notice in the absence of a valid reason, the latter shall have a
claim for compensation of what he would have earned if the employment relationship had been terminated by
observing the notice period or until the expiration of the fixed agreement period. […]”.
31. As it can be appreciated from the wording of both articles, article 337b is less specific than
337c with regard to the scope of the damages that the injured party is entitled to. According
to Swiss legal doctrine, the injured party is entitled to an integral reparation of its damages
pursuant to the general principles set forth in article 97 of the Swiss CO. Thus, 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
salaries and other material income that he would have had if the contract would have been
performed until its natural expiration. Nevertheless, since the law does not say this explicitly,
article 337c applies by analogy. (ENGEL P., Contrats de droit suisse, Berne 2000, p. 499,
section 2.1.2).
32. Furthermore, the CAS case law agrees that “in principle the harmed party should be restored to the
position in which the same party would have been had the contract been properly fulfilled” (CAS
2005/A/801, para 66; CAS 2006/A/1061, para. 15; and CAS 2006/A/1062, para. 22).
33. A similar scenario to the facts in this case can be found in the case CAS 2006/A/1061. That
case was about a South American player who had signed a four-year employment contract
with a Football Club in the Middle East that entitled the Player to receive a salary, a singingon
fee and image rights payments. Nevertheless, the Club never paid him because it could not
register the Player before the end of the registration period, and the Player had refused to
accept a transfer back to his club of origin. The Player brought a claim before the DRC
arguing that the Club had failed to pay the salaries and the amount due till that period of the
“signing fee”, and had therefore breached the Employment Contract. As a result, the Player
requested FIFA to confirm the termination of the Employment Contract as declared by him,
to award him damages, and to impose on the Club “a severe disciplinary sanction”. The DRC ruled
in the Player's favor and partially accepted his claim (in the amount requested). As a result, the
Club filed an appeal with the CAS.
34. The Sole Arbitrator in that case ruled that the problem with the registration did not constitute
just cause, and therefore, the Club had breached the contract and owed the Player
compensation under article 17. He held that, in light of the criteria provided by the FIFA
Regulations and article 337c of the Swiss CO (CAS 2006/A/1061, para. 14), applying