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An arbitration clause must be interpreted in a way that respects the fundamental intent of the parties to submit their contractual disputes to the CAS as an arbitral institution.
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Arbitral tribunals shall review the issue of the arbitrability of a dispute under the lex arbitri, i.e. the law governing the arbitration. The arbitrability of a dispute is not affected by the law applicable to the merits. A dispute may be arbitrable under the lex arbitri and not under the law applicable to the merits.
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Mandatory rules of foreign law concerning the arbitrability of a dispute may be taken into account in an international arbitration conducted in Switzerland if the legitimate and manifestly preponderant interests of a party so require, but the arbitral tribunal is not bound by said rules.
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Art. R58 of the CAS Code constitutes an indirect choice of law provision and the hierarchy of norms it imposes implies for CAS panels the obligation to resolve a dispute first and foremost pursuant to the applicable regulations.
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The facts relied on in support of an immediate termination must have resulted in the loss of the relationship of trust which forms the basis of the employment contract. As general rule, only a serious breach may constitute “just cause” for a termination but other incidents may also justify such a termination. In case of a less serious infringement, an immediate termination is possible only if the party at fault persisted in its breach after having been warned. Panels have discretion to decide whether there is just cause for termination, in accordance with the principles of justice and equity.
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Art. 17 FIFA Regulations on the Status and Transfer of Players (RSTP) aims at strengthening the principle of pacta sunt servanda by acting as a deterrent against unilateral contractual breaches and terminations committed by a club or a player. The party at the origin of the unjustified termination of an employment contract shall be liable to pay compensation for damages suffered by the other party.
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Under the principle of “positive interest”, the compensation payable to the party injured by the breach of contract must be aimed at reinstating it to the position it would have been in had the contract been performed until its expiry. The compensation due to a player has to be calculated – at minimum – on the basis of the salary payable to him under the relevant contract and for the time remaining of the relationship at stake. Other objective criteria, as foreseen in art. 17 FIFA RSTP, may also be taken into account.
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Where the parties’ lack of submissions do not permit an arbitrator to rule on the issues of the rate and of the starting date for the calculation of interests, art. 16 of the Swiss Private International Law Act, which applies by analogy in arbitration proceedings in Switzerland, reads that Swiss law shall apply instead of the foreign law at stake. In this respect, art. 104 para. 1 of the Swiss Code of Obligations (SCO) provides that a debtor in default on payment of a pecuniary debt must pay a default interest of 5% p.a., even where a lower rate of interest was stipulated by contract. Furthermore, and according to art. 339 para. 1 of the SCO, all claims arising from an employment relationship fall due when such relationship ends.
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