The CAS appeal decision in the Andrew Webster case.

• Author: Blackshaw, Ian

Introductory

Since FIFA, the world governing body of football, joined the Court of Arbitration for Sport (CAS) in 2002, the word bad of CAS has increased exponentially with football-related disputes of various kinds being referred to it--not least transfer disputes. Most of these cases are appeals from decisions rendered by the FIFA Dispute Resolution Chamber (DRC). One such recent appeal to CAS, which raised a number of interesting points of sports law, concerned the case of Andrew Webster, a twenty-five year old professional football player, currently on loan to Glasgow Rangers, after having been transferred from Heart of Midlothian (Hearts) to Wigan Athletic football club (CAS 2007/A/1298,1299 & 1230). The Award in this CAS appeal was handed down on 30 January, 2008 and published on the CAS official website (www.tas-cas.org).

In dealing with all appeals, CAS rehears the case de novo pursuant to the provisions of Art. R57 of the CAS Code of Sports-related Arbitration (2004 Edition), which provides that:

"The Panel shall have full power to review the facts and the law. It may issue a new decision which replaces the decision challenged or annul the decision and refer the case back to the previous instance."

In other words, the CAS acts as a revising body (rather like a court of cassation) and, as such, is often referred to as the 'Supreme Court for World Sport'.

The present dispute arose out of the unilateral termination, without just cause, of Webster's contract of employment with Hearts 26 May 2006. The background leading up to this termination is described in section D ('The Origin of the Dispute') (paras. 8-36) of the CAS Award. Hearts claimed compensation for unjustified breach of contract by Webster under the provisions of Article 17 of the FIFA Regulations for the Status and Transfer of Players (December 2004, edition) (referred to in the CAS Award and also hereafter as 'the FIFA Status Regulations') and the DRC awarded them the sum of 625,000 [pounds sterling] on 4 April, 2007. The parties appealed to CAS.

Article 17 of the FIFA Status Regulations

The main issue, amongst several subsidiary ones, including applicable law questions (the Panel deciding that Swiss Law applied rather than Scottish Law, on which point, see later), to be decided by CAS was the amount of compensation to be awarded to Hearts pursuant to the provisions of Article 17 of the FIFA Status Regulations, which provide as follows:

"Article 17 Consequences of Terminating a Contract Without Just Cause The following provisions apply if a contract is terminated without just cause:

1. In all cases, the party in breach shall pay compensation. Subject to the provisions of Art. 20 and annex 4 in relation to Training Compensation, and unless otherwise provided for in the contract, compensation for breach shall be calculated with due consideration for the law of the country concerned, the specificity of sport, and any other objective criteria. These criteria shall include, in particular, the remuneration and other benefits due to the player under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, the fees and expenses paid or incurred by the Former Club (amortised over the term of the contract) and whether the contractual breach falls within a Protected Period.

2. Entitlement to compensation cannot be assigned to a third party. If a Professional is required to pay compensation, the Professional and his New Club shall be jointly and severally liable for its payment. The amount may be stipulated in the contract or agreed between the parties.

3. In addition to the obligation to pay compensation, sporting sanctions shall also be imposed on any player found to be in breach of contract during the Protected Period. This sanction shall be a restriction of four months on his eligibility to play in Official Matches. In the case of aggravating circumstances, the restriction shall last six months. In all cases, these sporting sanctions shall take effect from the start of the following Season of the New Club. Unilateral breach without just cause or sporting just cause after the Protected Period will not result in sporting sanctions. Disciplinary measures may, however, be imposed outside of the Protected Period for failure to give due notice of termination (i.e. within fifteen days following the last match of the Season). The Protected Period starts again when, while renewing the contract, the duration of the previous contract is extended.

   The Ratio Decidendi of the Award

   The interpretation by the CAS and the application of these provisions to the present case are set Out in section C ('Merits of the Appeals') (paras. 125-154) of the CAS Award, which, in view of their importance, are set out in extenso as follows:

   "b) Level of Compensation Owed by Hearts iii. The Interpretation and Application of Article 17 of the FIFA Status Regulations

125. the Panel shall now analyse the factors to be taken into consideration according to the wording of article 17 of the FIFA Status Regulations when determining the level of compensation. Article 17(1) refers to three categories of factor, which the Panel shall examine in turn: the law of the country concerned, the specificity of sport and any other objective criteria (followed by a list of examples).

126. With respect to the law of the country concerned and as indicated earlier, the Panel considers that it is Scottish law but that the Panel has the discretion to decide whether or not any provisions of Scottish law should be applied in determining the level of compensation.

127. The Panel finds there are several reasons not to apply the rules of Scottish law invoked by Hearts.

128. One reason is that Hearts is relying on general rules and principles of Scottish law on damages for breach of contract, i.e. on provisions of Scottish law that are neither specific to the termination of employment contracts nor to sport or football, while article 17 of the FIFA Status Regulations was adopted precisely with the goal of finding in particular special solutions for the determination of compensation payable by football players and clubs who unilaterally terminate their contracts without cause. In other...