CAS Case Digest · Verified against the full award text

CAS 2006/A/1100 — Tareq Eltaib v. Club Gaziantepspor

"Eltaib v. Gaziantepspor" · CAS dismissed Gaziantepspor's application for a USD 1,000,000 security deposit, holding it constituted a prohibited 'hidden freezing order' beyond CAS jurisdiction.

What happened in Eltaib v. Gaziantepspor

Libyan footballer Tareq Eltaib signed a three-year employment contract with Turkish club Gaziantepspor on 15 June 2004. After alleging persistent late payment and outstanding salaries, Eltaib contacted FIFA in March 2006 seeking release. The club counter-claimed for his unexcused absence. On 27 April 2006, the FIFA Dispute Resolution Chamber ordered Eltaib to resume duty immediately, with referral to the FIFA Disciplinary Committee if he failed to comply. Eltaib appealed to CAS and sought a stay of the FIFA decision. The President of the Appeals Arbitration Division granted the stay, confirming that a player cannot be compelled to remain with an employer. The club then applied for the stay to be conditioned on Eltaib depositing USD 1,000,000 into a CAS escrow account as security. The Panel dismissed this application, reasoning that the request was in substance a freezing order within the meaning of Art. 271 of the Swiss Federal Law on Debts and Bankruptcy (LP), over which only the competent LP Judge — not an arbitral tribunal — has jurisdiction. Alternatively, since no immediate execution of a contractual obligation could be ordered against the player, no security for such execution could be granted either. This order is significant because it clarifies the outer limits of CAS's power to grant provisional measures under Swiss law, distinguishing permissible conservatory measures from prohibited hidden freezing orders.

Procedural history of CAS 2006/A/1100

On 15 June 2004, Eltaib and Gaziantepspor concluded an employment contract running from 1 July 2004 to 30 June 2007. In March 2006, Eltaib contacted FIFA alleging unpaid salaries; the club counter-claimed for his unexcused absence from 15 March 2006. On 27 April 2006, the FIFA Dispute Resolution Chamber ordered Eltaib to resume duty with Gaziantepspor immediately, warning that non-compliance would be referred to the FIFA Disciplinary Committee. The decision was served by fax on 16 May 2006. On 7 June 2006, Eltaib filed a statement of appeal with CAS seeking to set aside the decision and applied for a stay. On 6 July 2006, the President of the Appeals Arbitration Division granted the stay but deferred to the Panel the question of whether the stay should be conditioned on Eltaib providing security. The Panel was asked to rule on Gaziantepspor's application that Eltaib deposit USD 1,000,000 into a CAS escrow account.

Key holdings in CAS 2006/A/1100

• A player cannot be compelled to resume employment with a club, and his freedom to be employed by another club cannot be made conditional upon payment of security into an escrow account.
• A CAS panel lacks jurisdiction to grant a freezing order within the meaning of Art. 271 of the Swiss Federal Law on Debts and Bankruptcy (LP); only the competent LP Judge may do so.
• A request to deposit a monetary sum into an escrow account to secure a damages claim constitutes a 'hidden freezing order' ('séquestre déguisé') and is therefore outside the jurisdiction of an arbitral tribunal under Swiss law.
• Where no immediate execution of a contractual obligation can be ordered against a party, no security for such immediate execution may be granted by the Panel.
• The applicable law to provisional measures in CAS appeals against FIFA decisions is Swiss law, pursuant to Art. R58 of the CAS Code and Art. 59 para. 2 of the FIFA Statutes.

How the CAS panel reasoned

The Panel first confirmed that the stay of the FIFA order had already been granted by the President of the Appeals Arbitration Division on the basis that a person cannot be compelled to remain in employment. The sole remaining issue was therefore the Respondent's application for USD 1,000,000 security. Applying Swiss law on provisional measures, the Panel categorised the application as falling under the third type of Swiss provisional measure — anticipated execution of a monetary obligation. It noted that under Swiss law, anticipated execution of monetary obligations is generally prohibited, with the sole exception being freezing orders under Art. 271 LP, which are reserved exclusively for the LP Judge and cannot be issued by ordinary civil courts or arbitral tribunals (citing ATF 108 II 182 and ATF 86 II 295). The Panel drew the critical distinction between conservatory measures tied to a specific asset in dispute and freezing orders aimed purely at securing a debt. Because the Respondent's application targeted an amount — USD 1,000,000 — rather than any specific asset of the Appellant, it was in substance a freezing order. The Panel also rejected the alternative basis for granting security: since the player could not be ordered to perform his contractual obligations, there was no immediate execution to secure. Both grounds independently required dismissal of the application.

Why Eltaib v. Gaziantepspor matters in CAS jurisprudence

This order establishes that CAS, as an arbitral tribunal seated in Switzerland, cannot grant freezing orders under Art. 271 LP — a power reserved exclusively for the LP Judge — and that a request to deposit a monetary sum into escrow to secure a damages claim constitutes a prohibited 'hidden freezing order.' It also reaffirms the CAS principle that a player cannot be compelled to perform an employment contract, and that this freedom cannot be indirectly curtailed by conditioning a stay on the provision of financial security.

Cases cited in this award

CAS 2004/A/678 Apollon Kalamarias F.C. v/ FIFA and Oliveira Morais CAS 2004/A/691 Barcelona FC v/ Manchester United FC CAS 2004/A/574 Associação Portuguesa de desportos v/ Club Valencia C.F. S.A.D. CAS 2004/A/568 CAS 2004/A/780 CAS 2000/A/274

Frequently asked questions about Eltaib v. Gaziantepspor

Can CAS order a player to deposit money into escrow as security while a case is pending?

No. In Eltaib v. Gaziantepspor, the CAS Panel held that an order requiring a player to deposit USD 1,000,000 into a CAS escrow account constitutes a 'hidden freezing order' ('séquestre déguisé') under Swiss law. Only the competent LP Judge — not an arbitral tribunal — has jurisdiction to grant such orders under Art. 271 of the Swiss Federal Law on Debts and Bankruptcy.

Can a football club get an injunction forcing a player to return and resume playing under Swiss law?

No. The CAS Panel in Eltaib v. Gaziantepspor confirmed, consistent with Art. 337d of the Swiss Code of Obligations and prior CAS jurisprudence, that a person cannot be compelled to remain in the employment of a particular employer. The FIFA order requiring Eltaib to resume duty with Gaziantepspor was stayed on this basis.

What law governs provisional measures in CAS appeals against FIFA decisions?

Swiss law governs, pursuant to Art. R58 of the CAS Code and Art. 59 para. 2 of the FIFA Statutes, which together create a tacit and indirect choice of law requiring application of FIFA regulations and, subsidiarily, Swiss law. The Panel in Eltaib v. Gaziantepspor applied this framework when assessing Gaziantepspor's application for security.

What is the difference between a permissible CAS conservatory measure and a prohibited freezing order under Swiss law?

According to the Eltaib v. Gaziantepspor order, the distinction turns on whether the measure targets a specific asset that is itself the subject of the dispute (permissible conservatory measure) or merely seeks to secure a monetary debt by freezing any part of the debtor's wealth (freezing order reserved for the LP Judge). Because Gaziantepspor's application targeted an amount — USD 1,000,000 — rather than a specific asset, it was classified as a prohibited freezing order outside CAS jurisdiction.

Topics: Art. 17 RSTP & contract termination at CAS

Source: official award. This digest was generated by LexXi from the full award text and machine-verified against it — every figure, article and citation above appears in the source. It is an editorial summary, not legal advice. See how ElevenLex verification works.