Very restrictive notion of ‘abuse of rights’ in employment claims based on mandatory labour law in football
SFT Judgment 4A_134/2024 of 28 June 2024, motion to set aside CAS 2023/A/9574
By Dr. Despina Mavromati
In this case, the dispute arose from an agreement between a Turkish Club and a Brasilian Player to terminate their employment contract prematurely in order to facilitate the Player’s transfer to another club. The Club initially obtained a favourable decision from the FIFA DRC but lost in appeal to the CAS, as the Sole Arbitrator essentially found that the Club had not proven damages.
More specifically, the Sole Arbitrator awarded the Player’s counterclaims on the grounds that the termination agreement was null and void due to a breach of mandatory law (Art. 341 para. 1 CO), as it did not provide for balanced mutual concessions and lacked reciprocity. At the same time, the Sole Arbitrator rejected the Club’s objection that the Player had acted in abuse of rights by subsequently invoking the nullity of the agreement despite his concessions and the payment of instalments. Accordingly, it was decided that the Club should pay outstanding wages due to the nullity of the cancellation agreement and repay the partial payments to the Player for unjust enrichment.
In the subsequent motion to set aside the CAS Award, the Club alleged that the Sole Arbitrator had not recognized the player’s conduct as an abuse of rights (venire contra factum proprium), amounting to a violation of public policy.
The SFT reiterated the very restrictive notion of abuse of rights falling within the scope of public policy, which is possible for an employer only if special circumstances exist
The SFT reiterated the very restrictive notion of abuse of rights falling within the scope of public policy, which is possible for an employer only if special circumstances exist (BGE 131 III 439 E. 5.1 with references), in view of the very limited view of labour law claims based on mandatory law, the SFT could not establish – on the basis of the binding findings in the award – that the Sole Arbitrator granted legal protection to abusive conduct by the Player and therefore could not annul the award for violation of public policy.
