CAS Case Digest · Verified against the full award text

CAS 2008/A/1447 — E. v Diyarbakirspor Kulübü

"E. v Diyarbakirspor" · CAS held a Slovenian player had just cause to terminate his contract due to the Turkish club's persistent non-payment, awarding him EUR 84,003.

What happened in E. v Diyarbakirspor

A Slovenian footballer born in 1977 signed an employment contract with Diyarbakirspor, a Turkish second-division club, on 2 February 2006 for the period January 1, 2006 to June 30, 2007, worth a total of EUR 500,000. The contract included a relegation clause (private article 1) capping the player's entitlement at EUR 166,666 if the club was relegated at the end of the 2005/2006 season. The club issued a EUR 133,000 cheque that proved unpayable at the bank on February 28, 2006. After two formal payment warnings (March 6 and April 17, 2006), the player terminated the contract on April 30, 2006. He filed a claim before the FIFA DRC, which rejected his claim and ordered him to pay the club EUR 17,167. The player appealed to CAS. The Sole Arbitrator found that the club's failure to pay substantial sums — with EUR 76,300 still outstanding at termination despite two warnings — constituted just cause for termination under Art. 14 FIFA Regulations (2005) and Swiss law. Applying the relegation cap of EUR 166,666 and crediting EUR 82,663 already paid, CAS awarded the player EUR 84,003 plus 5% annual interest. The DRC decision was annulled. The case matters because it confirms that persistent non-payment of a main contractual obligation, following prior warnings, constitutes just cause for player-initiated termination.

Procedural history of CAS 2008/A/1447

On May 17, 2006, the player filed a claim before the FIFA Dispute Resolution Chamber (DRC) seeking EUR 415,955 plus interest for the club's alleged unjustified breach of contract. The club filed a counterclaim for EUR 100,000 (the transfer fee paid for the player). On August 10, 2007, the DRC rejected the player's claim, partially accepted the club's counterclaim, and ordered the player to pay the club EUR 17,167. The DRC held that the contract had ended on June 30, 2006 due to relegation, that the club's non-payment was not persistent enough to justify termination, and that the player had unjustifiably breached the contract. The decision was notified to the player by fax on December 10, 2007. On December 27, 2007, the player filed his appeal with CAS, requesting EUR 88,666 net for the remainder of the contract plus 5% interest and EUR 3,000 in legal costs. CAS was asked to review the facts and law de novo under Art. R57 of the CAS Code and to replace the DRC decision.

Key holdings in CAS 2008/A/1447

• The definition of just cause under Art. 14 FIFA Regulations (2005) is established on a case-by-case basis, and non-payment or late payment of remuneration by an employer constitutes just cause for termination provided the unpaid amount is not insubstantial and the employee has given prior warning.
• A relegation clause conditioning the early termination of an employment contract is a casual (non-potestative) condition and is valid under Swiss law, as relegation depends on sporting circumstances beyond the parties' control.
• Where a player terminates a contract with just cause due to the club's breach, the club cannot claim compensation from the player; instead, the club is liable to pay the player compensation for the breach.
• Compensation for justified termination under Art. 14 and Art. 17 FIFA Regulations (2005), read with Arts. 97 and 337b of the Swiss Code of Obligations, entitles the injured party to integral reparation including positive interest — the salaries and other material income the player would have received had the contract run to its natural expiration.
• Partial payments made by a debtor without specifying which debt they discharge are attributed chronologically to the earliest-due obligation pursuant to Art. 87 of the Swiss Code of Obligations.

How the CAS panel reasoned

The Sole Arbitrator applied the 2005 FIFA Regulations because the contract was signed in February 2006 and the claim was lodged in May 2006. Finding no definition of 'just cause' in the Regulations, he fell back on Swiss law and prior CAS jurisprudence (CAS 2006/A/1062; CAS 2006/A/1180), which require a substantial breach of a main obligation preceded by a warning. He calculated that EUR 193,040 was due to the player by April 30, 2006, against which only EUR 82,663 had been paid, leaving EUR 76,300 outstanding — a substantial sum. Two formal warnings had been sent (March 6 and April 17, 2006), satisfying both conditions for just cause. The Arbitrator rejected the DRC's reasoning that the club's non-payment was insufficiently persistent. On duration, both parties accepted that the relegation clause reduced the contract to June 30, 2006, capping entitlement at EUR 166,666. Applying Arts. 97, 337b and 337c (by analogy) of the Swiss CO and CAS 2006/A/1061, he awarded the player the full contractual entitlement up to the cap (EUR 166,666) less amounts already paid (EUR 82,663), yielding EUR 84,003. Interest at 5% per annum was awarded from the dates of default notices under Arts. 102 and 104 of the Swiss CO. The club's late-filed and untranslated documents were declared inadmissible.

Why E. v Diyarbakirspor matters in CAS jurisprudence

This award reinforces the principle that persistent non-payment of a player's salary — even absent complete non-payment — constitutes just cause for player-initiated termination under Art. 14 FIFA Regulations, provided prior warnings were given. It also confirms that relegation clauses are valid casual conditions under Swiss law, and that compensation following justified termination is calculated on an integral reparation basis under Swiss CO Arts. 97 and 337b, with Art. 337c applied by analogy, restoring the player to the position he would have been in had the contract run to its natural end.

Cases cited in this award

CAS 2006/A/1062 CAS 2006/A/1180 CAS 2006/A/1061 CAS 2005/A/801 CAS 2005/A/893 CAS 2006/A/1100

Frequently asked questions about E. v Diyarbakirspor

Did the player in E. v Diyarbakirspor have just cause to terminate his contract for non-payment?

Yes. The Sole Arbitrator found that EUR 76,300 remained unpaid as of April 30, 2006, which was a substantial amount. The player had also sent two formal payment warnings on March 6 and April 17, 2006, satisfying both conditions required under CAS jurisprudence and Swiss law for non-payment to constitute just cause under Art. 14 FIFA Regulations (2005).

How did the relegation clause affect the compensation calculation in E. v Diyarbakirspor?

Private article 1 of the contract capped the player's total entitlement at EUR 166,666 if the club was relegated at the end of the 2005/2006 season. Both parties accepted that relegation occurred, shortening the contract to June 30, 2006. The Sole Arbitrator applied this cap, so the player's maximum entitlement was EUR 166,666, from which EUR 82,663 already paid was deducted, yielding the award of EUR 84,003.

What interest rate did CAS award in E. v Diyarbakirspor and from what dates?

CAS awarded interest at the Swiss legal rate of 5% per annum. EUR 50,337 attracted interest from March 6, 2006 (the date of the first payment warning, putting the club in default under Art. 102 Swiss CO for the first clause obligation), and EUR 33,666 attracted interest from April 17, 2006 (the date of the second warning, covering the second and third clause obligations).

What happened to the club's counterclaim for EUR 100,000 in E. v Diyarbakirspor?

The DRC had partially accepted the club's counterclaim and ordered the player to pay EUR 17,167. CAS annulled the DRC decision entirely. Because the Sole Arbitrator found that the player had just cause to terminate the contract, the club was not entitled to any compensation from the player; instead, the club was held liable to pay the player EUR 84,003.

Topics: Art. 17 RSTP & contract termination at CAS

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