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Counterclaims are, since 1st January 2010, inadmissible in CAS appeal procedures. Instead, a respondent needs to file an independent appeal within the applicable time limit. If it fails to do so, i.e. if the answer including the request is filed after the time limit for the appeal has expired, the counterclaim is inadmissible. This, however, does not concern requests that relate to procedural and legal costs.
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Just cause to terminate a contract is generally said to exist where the breach has reached such serious levels that the injured party cannot in good faith be expected to continue the contractual relationship. The question whether just cause in fact existed, shall be established in accordance with the merits of each particular case. As it is an exceptional measure, the immediate termination of a contract for just cause must be accepted only under a narrow set of circumstances. Thus, only a particularly severe breach of the labour contract will result in the immediate dismissal of the employee, or, conversely, in the immediate abandonment of the employment position by the latter. In the presence of a less serious infringement, an immediate termination is possible only if the party at fault persisted in its breach after being warned. The judging body determines at its discretion whether there is just cause. Furthermore, a termination of contract with immediate effect is to be applied as ultima ratio. As to the burden of proof, a party must provide the CAS panel with all relevant evidence that it holds, and, with reference thereto, convince the CAS panel that the facts it pleads are true, accurate and produce the consequence envisaged by the party. Only when these requirements are complied with has the party fulfilled its burden and has the burden of proof been transferred to the other party.
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The employer has the obligation to protect the employee’s personality rights. The case law has deduced thereof a right for categories of employees to be employed, in particular for employees whose inoccupation can prejudice their future carrier development. The employer has to provide these employees with the activity they have been employed for and for which they are qualified. The employer is therefore not authorized to employ them at different or less interesting positions than the one they have been hired for.
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The instruction “not to train the first football team anymore” and to “just observe the U13 football team” is a particularly offending demotion of a coach specifically hired to train the first football team and constitutes a serious breach of the contract by the club that gives the coach “just cause” to immediately terminate the contract.
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Given that an immediate termination can only occur in presence of a “very severe breach” of the employment contract, a coach’s approach to first warn the club and request his reinstatement is a reasonable and appropriate approach. This approach allows the coach to avoid all risk of seeing himself confronted with the reproach of having not asked the breaching party, i.e. the club, to desist its breachful act and/or with the argument that his immediate termination was not an ultima ratio measure.
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The suspension of a professional coach, even for a limited period, is a measure that undoubtedly affects the personal and economic sphere of the latter and infringes his legal interests and may amount to a violation of his personality rights. In absence of any contractual basis, it can be considered as a severe breach of the contract and give the coach a “just cause” to terminate the contract.
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Non-payment of all or part of the remuneration by an employer does in principle constitute just cause for termination of the contract, as the employer’s payment obligation is his main obligation towards the employee. Whether the employee falls into financial difficulty by reason of the late or non-payment is irrelevant. The only relevant criteria is whether the breach of obligation is such that it causes the confidence, which the one party has in future performance in accordance with the contract, to be lost. However, the latter applies only subject to two conditions. First, the amount paid late by the employer may not be “insubstantial” or completely secondary. Secondly, a prerequisite for terminating the contract because of late payment is that the employee must have given a warning. In other words, the employee must have drawn the employer’s attention to the fact that his conduct is not in accordance with the contract.
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The FIFA Regulations on the Status and Transfer of Players (RSTP) does not contain any provision governing the compensation that is to be awarded in employment disputes involving coaches, as Article 1.1 RSTP limits the scope thereof to the statutes, eligibility and transfers of “players”. Thus, Swiss law is to be applied to the issue of compensation in case of termination of the contract with just cause. The employee who has terminated the employment contract with just cause can claim the loss of earnings consecutive to the termination of the employment relationship, which is equivalent to the amount an employee who has been unjustly dismissed with immediate effect can claim in application of Article 337c (1) and (2) of the Swiss Code of Obligations (CO). Thus, in theory, he is entitled to compensation corresponding to what he would have earned had the contract been fulfilled to its expected date of expiry, pursuant to the so- called doctrine of restitution.
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According to art. 337c (2) of the SCO, the duty of mitigation is related to the rule that the employee must permit a set-off against the amount of compensation for what he saved because of the termination of the employment relationship, or what he earned from other work, or what he has intentionally failed to earn. Such a rule implies that, in accordance with the general principle of fairness, the injured player must act in good faith after the breach by the club and seek for other employment, showing diligence and seriousness. The duty to mitigate should not be considered satisfied when, for example, the player deliberately fails to search for a new club or unreasonably refuses to sign a satisfying employment contract, or when, having different options, he deliberately accepts to sign the contract with worse financial conditions, in the absence of any valid reason to do so. Article 337c (2) CO exactly defines what amounts have to be set-off from the amount the employee would have earned if the contract had gone to its end. It does not provide for the possibility of a reduced amount due to the simultaneous fault of the worker; it authorises set-off only against what he would have earned. It can therefore be inferred from the wording and system of Article 337c CO that the concomitant fault is a factor of reduction or cancellation of the compensation provided for in (3) of Article 337c CO, but not of the damages due under paragraph 1 of that article.
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