CAS 2006/A/1100 Tareq Eltaib V. Club Gaziantepspor, Dated 15 November 2006
Monteneri, Gianpaolo, The International Sports Law Journal
1. One of the most joyful moments for a football club and its fans is the signing of a new player for the club. The new player is meant to give to the club the vitality and strength it needs, so as to be competitive in the new season. The signature is usually widely broadcasted in the local media and based on the pictures offered to the public, the relationship between the player and the club is supposed to last forever. The reality, however, sometimes develops in a completely different way than the expectations of the parties and the agreements concluded between the clubs and the players are not performed in a proper way. Often the misunderstandings and failure to conform to the contractually agreed terms lead the parties to the breach or even the early termination of such agreements.
2. In the same way, regrettably, it has become fashionable that clubs and players use minor infringements of their agreements as a ground for an exit of the employment relationship and subsequent claims for compensations of alleged damages. However, some termination of contract could have been avoided had the parties clearly comprehended their contractual capabilities prior to committing any of such actions. But since football is first of all passion and emotion, now and again rational thinking and balanced handling are neglected in a crisis situation between a player and club, with usually devastating effects for all parties involved.
3. The public opinion, in particular the own fans, play an important role in the handling and decision making process of a club but also of a player, creating pressure and expectation on them. But what appears to be reasonable from the point of view of an average person or fan cannot be often appreciated in the same manner in the light of applicable legal frame of State law or sports body regulations and reserves often surprises when the relevant decision is notified to the parties concerned.
4. Fact is that employment related disputes are increasing (both in number and in the value of the dispute), which is on one side explicable with the complete globalization of football (more and more players are ready to leave their home countries and go to play abroad, even to the most unusual football destination) and on the other side with the increase of revenue generated by the leagues and clubs which is based primarily on television and commercial rights.
5. The reasons for the disputes have always a simple common denominator: remuneration! For a player it is either a default in payment on the side of the club or a better financial offer coming from a third club. For a club it is the default in paying the salary of a player on time, which can be based either on a provisional cash flow problem or on the intention to part from the player since he has become uninteresting from a sporting perspective. The parties then use their tailor-made strategies so as to be released from their respective engagements.
6. Whenever an employment related dispute between a club and player occurs, the aggrieved party seeks recourse to the competent State or sports courts. In the event of a dispute which has an international dimension the parties have a tendency to start legal procedure before the FIFA Dispute Resolution Chamber ("DRC") (1) with the possibility to appeal the decision of this body to the Court of Arbitration to Sport ("the CAS"). The main reason for this choice is the fact of having an independent international body investigating and deciding on the matter with the possibility to have the decision taken respected and enforced through disciplinary measures in case of non-compliance.
7. The first question to which these sports courts have to give an answer while analyzing a dispute who is right and who had therefore just cause, i.e. a valid reason for the termination of an agreement?
8. As far as the definition of the term "just cause" is concerned, the legislator (both at State and sports law level) has always preferred not to give a comprehensive definition but has left its assessment to the circumstances of the case, trusting in the correct evaluation of the judges. …