Webster, Matuzalem, De Sanctis. ... and the Future

Article excerpt

1. Introduction

On 30 January 2008, the Court of Arbitration for Sport ("CAS") ruled that player Andrew Webster was entitled to unilaterally terminate his employment contract with Heart of Midlothian after the so-called protected period of his contract. The CAS decided that as result of the unilateral termination, player Webster only had to pay the remaining value of his contract as compensation to his former club Heart of Midlothian. This was the first case in which the CAS had to decide with regards to the amount of compensation in case of a unilateral termination of a player after the protected period. On the one hand, the international football world was pleasantly surprised after the decision (the players), but on the other also seriously shocked (the clubs). The question now was whether the Webster-case was another land mark judgment in the international football world, such as the famous Bosman-case. (1)

After Webster, the main issue was, is every player free to unilaterally terminate his employment contract after the protected period by only paying the remaining value of his contract as compensation? In an earlier edition of the International Sports Law Journal, I wrote an article regarding the Webster-case and its consequences for the future. In that article I analyzed whether the clubs would indeed face more difficulties after the decision, given that the players might be entitled to terminate their contracts unilaterally after the protected period. In that article it was concluded that it should not be presumed beyond doubt after the Webster-case that the remaining value in future cases had to considered as the only criterion in order to establish the amount of compensation. After Webster we were left with many unanswered questions that gave rise to the suspicion that the remaining value should not be the only decisive criterion in determining the amount of compensation. For example, in future cases aggravating circumstances, more specifically the status and behavior of the parties, could play an important role and could have effect on the amount of compensation to be paid. And, more importantly, does not each request for compensation has to be assessed on a case-by-case basis? (2) Many questions were still unanswered.

On 19 May 2009, the CAS came with a follow up. In the so-called Matuzalem-case, the CAS decided that the remaining value was not the only criterion in order to establish the amount of compensation after a unilateral termination of a player outside the protected period. In this case, the CAS ruled that the award of damages had to be based upon the principle of "positive interest", i.e. putting the injured party in the position it would have been in, had there been no breach of contract. The Matuzalem-case provided clubs and players with judicial handholds to claim extra damages on the party breaching the contract. The CAS was not willing to follow the CAS panel in the Webster-case since it was of the opinion that extra damages could be claimed. Now the CAS panel in the Matuzalem-case ruled differently, it was interesting to see what CAS panels would decide in future with regards to the amount of compensation in case of a unilateral termination after the protected period. It was interesting to see what the future would bring and how this jurisprudence was going to develop. Would the Webster-doctrine be followed or was Matuzalem leading?

In the recent De Sanctis-case, the CAS now seems to clarify things up. In this case, in which was also adjudicated with regards to a termination after the protected period, the Italian player Morgan de Sanctis played with the Italian club Udinese and terminated his contract after the protected period, such as Webster and Matuzalem did previously. Udinese claimed that the player and his new club Sevilla were not entitled to (only) pay the remaining value of the contract and claimed that the award of damages had to be based upon the principle of "positive interest", such as the CAS did in Matuzalem. …