Al-Faisaly Football Club v. Alexander Merkel, Gazisehir Futbol Kulübü (GFK) A.S.

At a glance

Parties

Al-Faisaly Club (Saudi Arabia) v. Alexander Merkel (player, German and Kazakh nationalities) and Gazişehir Futbol Kulübü (GFK) A.Ş. (Turkey)

Case no.

CAS 2022/A/8963

Forum and rules

Court of Arbitration for Sport, appeals procedure under the CAS Code (2021 edition); FIFA RSTP (August 2021 edition), Swiss law applied subsidiarily

Instrument

FIFA Regulations on the Status and Transfer of Players, Articles 14 and 17; Article 57(1) FIFA Statutes

Panel

Michele Bernasconi (President), Khaled Banaser, Efraim Barak

Sector

Football; player employment contract

Outcome

Appeal partially upheld (14 June 2023). The club had no just cause to terminate. Compensation was reduced from EUR 1,100,008 to EUR 1,000,008 net because the player had intentionally failed to earn more in his first season at Gazişehir.

Amount

FIFA DRC award: EUR 95,455.50 net outstanding remuneration plus EUR 1,100,008 net compensation. CAS: outstanding remuneration confirmed (EUR 63,637 and EUR 31,818.50 net, with 5% interest); compensation EUR 1,000,008 net with 5% interest from 30 September 2021. The club's counterclaim for EUR 1,200,000 was dismissed.

The dispute

Al-Faisaly and the player Alexander Merkel signed an employment contract on 24 August 2020, running from 15 September 2020 to 14 July 2022. On 16 August 2021, after talks on a mutual termination failed, the club terminated the contract. It cited a drop in the player's sporting performance and "abusive behaviour" under Article 14(2) FIFA RSTP: the player had refused a loan and insisted on being paid the full value of the contract at once. Three days later the player signed with Gazişehir. The FIFA DRC held that the club had no just cause and ordered it to pay outstanding salary and EUR 1,100,008 net in compensation. On appeal, Al-Faisaly sought a finding that the player was in breach, EUR 1,200,000 in compensation and sporting sanctions against him. In the alternative, it asked for a reduction for contributory fault. The player argued that the club had excluded him from the first team and deregistered him to free a foreign-player slot. Gazişehir denied any contact with the player before the termination.

Key holdings

1. Poor sporting performance cannot in principle be just cause to terminate a player's contract. In any case, no drop in performance or lack of dedication was proven: Al-Faisaly produced no technical report. The club should also have warned and sanctioned the player internally first, because termination is an ultima ratio. ¶¶ 78–82
2. Insisting on the performance of the contract, agreeing to an early termination only on conditions, and refusing a loan are not abusive conduct under Article 14(2) RSTP. There was no evidence that the player negotiated with Gazişehir before the termination, and his new salary was much lower than at Al-Faisaly. The club therefore had no just cause, and its counterclaim and request for sporting sanctions were dismissed. ¶¶ 83–94
3. The outstanding remuneration of EUR 95,455.50 net was confirmed: EUR 63,637 with 5% interest from 15 August 2021 and EUR 31,818.50 with 5% interest from 17 August 2021. ¶¶ 96–106
4. Compensation under Article 17(1) RSTP follows the positive interest principle. The residual value of the contract was EUR 1,200,008 net. At the player's request, the Gazişehir contract paid EUR 100,000 in the first season and EUR 550,000 in the second, and the difference was inexplicably large. Under Article 337c(2) of the Swiss Code of Obligations, the Panel held that the player intentionally failed to earn at least EUR 200,000 in the first season. It deducted EUR 200,000 in total as mitigation, leaving EUR 1,000,008 net. ¶¶ 114–134
5. No contributory fault. Articles 44(1) and 337b of the Swiss Code of Obligations could in theory reduce compensation, but nothing showed that the player contributed to the termination. ¶¶ 135–142
6. Interest would in principle run from 17 August 2021. Because the player did not appeal, the ne ultra petita principle bars this, and the DRC's start date of 30 September 2021 stands. ¶¶ 143–145

Procedural history

1. 24 August 2020Employment contract concluded between Al-Faisaly and the player, valid from 15 September 2020 to 14 July 2022.
2. 16 August 2021Al-Faisaly terminates the contract, citing the player's poor performance and abusive conduct.
3. 19 August 2021The player signs with Gazişehir until 31 May 2023, with an option to 31 May 2024.
4. 30 September 2021The player files a claim with the FIFA DRC; Al-Faisaly files a counterclaim.
5. 21 April 2022FIFA DRC decision: no just cause; the club must pay outstanding remuneration and EUR 1,100,008 net in compensation. Grounds notified on 30 May 2022.
6. 16 June 2022Al-Faisaly files its Statement of Appeal with CAS.
7. 5 October 2022Panel constituted.
8. 8 December 2022Hearing held by video-conference. The parties then held settlement talks, but did not report back within the deadline.
9. 14 June 2023Award: appeal partially upheld; compensation reduced to EUR 1,000,008 net.

Tribunal, counsel and experts

Decided by

• Michele A.R. Bernasconi President, CAS Panel — appointed by the institution
• Khaled Banaser Co-arbitrator, CAS Panel — appointed by the claimant (nominated after the club's first nominee declined)
• Efraim Barak Co-arbitrator, CAS Panel — appointed by the respondent

For the claimant

Anis Ben Mime · Olfa Arjoun

For the respondent

Sergey Lysenko · Vladislav Chepelyov · Gürkan Özocak

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Keywords

• football
• FIFA RSTP
• Article 14(2) RSTP
• abusive conduct
• just cause
• poor sporting performance
• termination of employment contract
• Article 17(1) RSTP
• compensation for breach of contract
• positive interest
• duty to mitigate
• Article 337c(2) Swiss Code of Obligations
• contributory negligence
• ne ultra petita
• FIFA DRC
• Saudi Arabia
• loan refusal

Summary generated with AI from the published documents — refer to the award for the authoritative text.