CAS 2008/A/1644 Adrian Mutu v/ Chelsea Football Club Limited
CAS 2008/A/1644 M. v. Chelsea Football Club Ltd.
Related cases:
- CAS 2005_A_876 Adrian Mutu vs Chelsea Football Club
December 15, 2005 - CAS 2006_A_1192 Chelsea vs Adrian Mutu (anon)
May 21, 2007 - Swiss Federal Court 4A_458_2009 Adrian Mutu vs Chelsea Football Club
June 10, 2010
- Football
- Breach of a contract of employment without just cause
- CAS Panels and the principle of ne ultra petita
- Previous CAS Awards passed between the parties and res iudicata
- Compensation on the basis of the unamortised acquisition costs
- Remoteness of the damage suffered by a Club
- Causation and mitigation of damages
- Effect of EC law to the application of the FIFA Regulations
Specificity of sport
1.) A CAS Panel is bound to observe the limits of the parties’ motions. Even though the Panel has full power to review the facts and the law of the case, the arbitral nature of CAS proceedings obliges the Panel to decide all claims submitted, but at the same time prevents the Panel from granting more than what the parties are actually asking for.
2.) The decisions passed between the parties through previous CAS Awards have a res iudicata status and the CAS Panel cannot review them, because they are finally settled.
3.) The award of compensation on the basis of the unamortised acquisition costs is not only explicitly provided in the FIFA Regulations, but also consistently upheld in the CAS jurisprudence. Such criterion is equally consistent with English law, which allows compensation for the costs incurred by the innocent party in reliance on the promised performance, but wasted because of the other party’s breach of contract.
4.) For a damage not to be too remote, the parties need to have contemplated the “head” of damage, and not the “extent” of that loss: it is a standard practice that transfer fees are paid. So long as the Player does not deny the fact that the Club paid the Former Club a substantial amount of money for his transfer, the fact that the Player was not party to the Transfer Contract and had therefore not determined the amount of the transfer fee, or the other expenses incurred by the Club in connection with the acquisition of the Player (on which compensation is calculated), is entirely irrelevant.
5.) The duty to mitigate damages only arises after the decision to terminate the contract is made. When the Club terminates the Employment Contract because of the Player’s breach without just cause, it still keeps the right to compensation for the costs incurred relying on the Player’s promised performance. The Club is not required to try to transfer (for a fee) the Player before exercising its right to terminate the Employment Contract, since such attempt could be construed as an implied affirmation of the Employment Contract, thereby depriving the Club of the option to terminate it.
6.) The effect of an award finding the FIFA Regulations to be contrary to EC law can only lead to the conclusion that damages cannot be assessed on the basis of such Regulations, and this leaves the question open for the determination of the damages on the basis of a national law only. In other words, should the FIFA dispute resolution system be found contrary to EC rules, the obligation of the Player to pay damages, as determined in the proper forum, would remain unaffected.
7.) The CAS Panel has to take into consideration the specific nature and needs of sport when assessing the circumstances of the dispute at stake, so to arrive to a solution which takes into account not only the interest of players and clubs, but, more broadly, those of the whole football community.
In October 2004 the Player Adrian Mute tested positive for the prohibited substance cocaine and the Club terminated the contract with the Player with immediate effect.
On 4 November 2004, the FA’s Disciplinary Commission imposed a seven-month ban on the Player commencing on 25 October 2004. The FIFA Disciplinary Committee extended the sanction in order to obtain a worldwide effect by a decision dated 12 November 2004.
Between november 2004 and May 2008 a number of proceedings and appeals followed in the dispute between the Chelsea Football Club and Adrian Muti about the Player's breach of contract and Chelsea's claim for compensation filed by both parties with FIFA and CAS.
On 7 May 2008 the FIFA Dispute Resolution Chamber (DRC) decided that:
1.) The claim of Chelsea Football Club is partially accepted.
2.) The player, has to pay the amount of EUR 17,173,990 to Chelsea Football Club within 30 days of notification of the present decision.
3.) If this amount is not paid within the aforementioned time limit, a 5% interest rate per annum as of the expiry of the said time limit will apply and the matter will be submitted to the FIFA Disciplinary Committee for its consideration and decision.
4.) Any further request filed by Chelsea Football Club is rejected.
5.) Any counterclaim filed by the Player is rejected.
6.) (...)
Hereafter in September 20087 the Player appealed this DRC decision with CAS.
The CAS Panel finds that the appeal brought by the Player Adrian Muti is to be dismissed and the measure of damages, including interest thereupon (starting 30 days after the notification of the Decision), as awarded by the DRC, is to be confirmed. All other prayers for relief submitted by the parties are to be dismissed.
Therefore the Court of Arbitration for Sport decides on 31 July 2009:
1.) The appeal filed by the Player Adrian Muti against the decision issued on 7 May 2008 by the Dispute Resolution Chamber of the FIFA Players’ Status Committee is dismissed.
2.) The Player is ordered to pay to Chelsea Football Club Limited the amount of EUR 17,173,990, plus interest of 5% p.a. starting on 12 September 2008 until the effective date of payment.
3.) (…).
4.) (…).
5.) All other prayers for relief are dismissed.
