Club Gaziantepspor v. Dino Lamberti (CAS 2010/A/2168)
CAS · Football (FIFA / CAS) · Switzerland · 29 November 2010
Why it matters
This case clarifies the application of Article 156 CO in sports arbitration, particularly the burden of proof on the party alleging bad faith prevention of a condition. It also illustrates the ne ultra petita principle, limiting the panel's power to grant more than what was appealed. The decision underscores that a party must provide substantial evidence to prove bad faith, and that a panel cannot increase an award if the other party did not appeal.
Summary
Club Gaziantepspor (the Club) and agent Dino Lamberti signed an agreement on 22 June 2006, under which the Club would pay Lamberti a lump sum of CHF 200,000 within five working days after receiving the player's International Transfer Certificate (ITC), plus 10% of the player's annual net salary for three seasons, conditional on the player being in the squad on each payment date. The player, Önder Cengel, signed an employment contract with the Club from 1 July 2006 to 30 June 2009. The Club received the ITC but did not pay the agent. The agent filed a claim with FIFA's Single Judge, who awarded CHF 200,000 plus 5% of the player's salary for each season (reducing the 10% to 5% as excessive), totaling CHF 245,000 plus interest. The Club appealed to CAS, arguing that the condition for the salary-based payments was not met because the player left the squad during the 2006/2007 season. The agent argued that the Club caused the player's departure by breaching the employment contract, thus preventing the condition in bad faith under Article 156 of the Swiss Code of Obligations. The Sole Arbitrator found that the agent was entitled to the lump sum of CHF 200,000 because the ITC condition was met. For the salary-based payments, the agent was entitled to 10% of the 2006/2007 salary (CHF 25,000) because the player was in the squad on 1 July 2006. However, the agent failed to prove that the Club acted in bad faith to prevent the condition for the later seasons; the agent only provided a termination letter, which was insufficient to meet the burden of proof. Therefore, the condition for the 2007/2008 and 2008/2009 payments was not fulfilled. Additionally, because the agent did not appeal the Single Judge's reduction of the percentage from 10% to 5%, the Sole Arbitrator applied the ne ultra petita principle and upheld the 5% rate, awarding CHF 12,500 for the 2006/2007 season. The total award was CHF 212,500 with 5% interest from 1 July 2006.
The detail
Parties: Club Gaziantepspor v Dino Lamberti
Case number: CAS 2010/A/2168
Outcome: The appeal was partially upheld. The Club was ordered to pay the Agent CHF 212,500 with 5% interest from 1 July 2006.
Quantum: CHF 212,500
Applicable law: FIFA regulations and Swiss law (Swiss Code of Obligations)
Issues in play: The case involved the interpretation of a conditional payment clause in an agent agreement and the application of Article 156 of the Swiss Code of Obligations (good faith in preventing condition fulfilment).
Read the full decision at Court of Arbitration for Sport (football, via FIFA) ↗
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