F.I.F.A. – Commissione per lo Status dei Calciatori (2011-2012) – controversie allenatori – ———- F.I.F.A. – Players’ Status Committee (2011-2012) – coach disputes – official version by www.fifa.com – Decision of the Single Judge of the Players’ Status Committee passed in Zurich, Switzerland, on 30 January 2012, by Geoff Thompson (England) Single Judge of the Players’ Status Committee, on the claim presented by the assistant coach R, as “Claimant / Counter-Claimant” against the club N, as “Respondent / Counter-Respondent” regarding a contractual dispute between the parties.

F.I.F.A. - Commissione per lo Status dei Calciatori (2011-2012) – controversie allenatori – ---------- F.I.F.A. - Players' Status Committee (2011-2012) – coach disputes – official version by www.fifa.com – Decision of the Single Judge of the Players’ Status Committee passed in Zurich, Switzerland, on 30 January 2012, by Geoff Thompson (England) Single Judge of the Players’ Status Committee, on the claim presented by the assistant coach R, as “Claimant / Counter-Claimant” against the club N, as “Respondent / Counter-Respondent” regarding a contractual dispute between the parties. I. Facts of the case 1. On 1 September 2008, the country D coach R (hereinafter: the Claimant / Counter- Respondent or simply: the Claimant) and the country A club N (hereinafter: the Respondent / Counter-Claimant or simply: the Respondent) signed an employment contract (hereinafter: the contract), valid from 1 September 2008 until 31 August 2010, and according to which the Claimant was inter alia entitled to receive from the Respondent “a total remuneration of Euro 192 000” in 24 instalments of EUR 8,000 each “starting from 01 September 2008 in each case payable at the latest (receipt of payment) as per the 5th day of a calendar month”. Furthermore, the Claimant was entitled to receive from the Respondent “70 percent of the prize determined by club N premierlig and cup competitions, as well as European club competitions”. 2. In continuation, art. 4.2. of the contract stated that “This contract may be cancelled before the expiry date on the Assistant Coach’s initiative only in the following circumstances: If the assistant coach is incapacitated by illness, injury or accident longer than one month; If club N has breached any obligation stipulated by this Contract.” Furthermore, art. 4.3. of the contract established that “Should the assistant coach unreasonably cancel the Contract before the expiry date, club N will not be responsible for any payment concerning the time after the termination and apply to FIFA for punishment of assistant coach and declare penalty for the assistant coach.” Finally, art. 4.4. of the contract stated that “club N may only cancel the contract in the following circumstances: is found to appear and do his work in a state of alcoholic, narcotic, or other intoxication; has committed violations; failed seriously to comply with the conditions of Contract and other normative documents of FIFA.” 3. On 16 April 2009, the Claimant lodged a claim with FIFA against the Respondent which he then amended on several occasions. 4. In this respect, the Claimant accused the Respondent of not having fully complied with its contractual obligations as per the contract by not paying him the whole salary due. As to that, the Claimant specified that he only had received from the Respondent EUR 5,000 on 8 April 2009, corresponding to part of his salary of February 2009, and that EUR 27,000, corresponding to the salaries of March, April and May 2009 plus the remaining amount of EUR 3,000 for February 2009, were still outstanding. 5. In continuation and in view of the outstanding remuneration due by the Respondent, the Claimant considered being entitled to prematurely terminate the contract with just cause. Hence, the Claimant argued that the Respondent had to pay him the outstanding amount of EUR 27,000. Equally, the Claimant requested to be paid the amount of EUR 120,000 as compensation for breach of contract, corresponding to his salary between June 2009 and August 2010, i.e. until the end of the contract as well as USD 4,200, corresponding to “premiums for the matches (…) played in (…) on 8th March 2009 (70 % from US-$ 2.000,00 = US-$ 1.400.00), played in (…) and (…) on 22nd March 2009 and 5th April 2009 (70 % from both games together US-$ 1.000,00 = US-$ 700,00) and played in (…) on 12th April 2009 (70 % from US-$ 3.000,00 = US-$ 2.100,00)”. 6. In this context, the Claimant provided FIFA with two correspondence, dated 16 April and 29 May 2009 respectively, by means of which he had inter alia requested the Respondent to pay the alleged outstanding remuneration as well as the “premium for the matches” and warned the latter that, in case of noncompliance, it “must reckon with the summary termination of the contract and the enforcement of the consequential indemnity claims”. 7. In addition, the Claimant informed FIFA that, since the Respondent had failed to provide him with a response with regard to his inquiries “concerning the season holiday” he had the right to “take his holiday during the period applicable to the other players, during the period from 18th May 2009 until 29th June 2009”. 8. Finally, the Claimant provided FIFA with a correspondence dated 1 June 2009, by means of which the Respondent had accused him of having left ”the club without any permission from club authoritis” and had imposed a fine on him in the amount of EUR 24,000 (hereinafter: the fine). Furthermore, the Respondent stated in the same correspondence that “After deducting the fine we are ready to pay outstanding credits of Mr. R” and “We are waiting Mr. R on 16 June 2009 in country A”. As to that, the Claimant rejected the entitlement of the Respondent to impose said fine on him stressing that he had taken holidays “as said in the letter to FIFA” (cf. par. 7 above). 9. In its response to the claim dated 7 December 2009, the Respondent rejected the Claimant’s claim and lodged a counter-claim against the latter requesting the payment of the fine, i.e. of EUR 24,000. 10. In this respect, the Respondent stressed that it had not terminated the contract and that the Claimant had left the country A without permission and “did not returned to his job”, therefore breaching the contract. As a consequence, the Respondent deemed that the Claimant should pay the fine as requested and should not be entitled to receive any compensation. Finally, the Respondent requested FIFA to impose the costs of the proceedings on the Claimant. 11. In its subsequent correspondence of 14 September 2010, the Claimant rejected the allegations and the conter-claim of the Respondent. Furthermore, the Claimant reiterated the content of his previous submissions. In particular, the Claimant contested the validity of the fine and stressed, once again that, between 18 May 2009 and 29 June 2009, he had been on holidays as already “announced” to FIFA (cf. point 7 above). 12. In continuation, the Claimant also specified that, by means of a correspondence dated 15 June 2009, he had terminated the contract with just cause as a consequence of the non-payment of the remuneration due. 13. Finally, the Claimant informed FIFA that, between 1 July 2009 and 31 August 2010, he had been employed by the country G club X, earning the total amount of EUR 50,000 as “gross-salary”, i.e. apparently EUR 30,000 net salary. 14. In its final statement dated 26 December 2011, sent after the investigation phase of the present matter had already been closed by FIFA, the Respondent provided its final position to the dispute. In this respect, the Respondent reiterated the content of its previous submission. Nevertheless and in spite of having been asked to do so by FIFA, the latter failed to pay the advance of costs due for its counterclaim, although it had been informed that failure to do so would have result in the counter-claim not being heard. II. Considerations of the Single Judge of the Players’ Status Committee 1. First of all, the Single Judge of the Players’ Status Committee (hereinafter also referred to as: the Single Judge) analysed whether he was competent to deal with the matter at hand. In this respect, the Single Judge referred to art. 21 par. 2 and 3 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2008). Consequently, and since the present matter was submitted to FIFA on 16 April 2009, the Single Judge concluded that the 2008 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21 par. 2 and 3 of the Procedural Rules). 2. Subsequently, the Single Judge referred to art. 3 par. 1 and 2 of the Procedural Rules and confirmed that in accordance with art. 23 par. 1 and 3 in combination with art. 22 lit. c) of the 2010 edition of the Regulations on the Status and Transfer of Players, he is competent to deal with the matter at sake which concerns an employment-related dispute of an international dimension between an assistant coach and a football club affiliated to the Football Federation A. 3. Furthermore, the Single Judge analysed which edition of the Regulations on the Status and Transfer of Players should be applicable as to the substance of the matter. In this respect, he referred, on the one hand, to art. 26 par. 1 and 2 of the 2009 and 2010 editions of the Regulations on the Status and Transfer of Players, and on the other hand, to the fact that the present claim was lodged with FIFA on 16 April 2009. In view of the foregoing, the Single Judge concluded that the 2008 edition of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the case at hand as to the substance (cf. art. 26 par. 1 and 2 of the Regulations). 4. His competence and the applicable regulations having been established, and entering into the substance of the present matter, the Single Judge started his analysis of the case by acknowledging the facts of the case and the arguments of the parties as well as the documents contained in the file. 5. In this respect, the Single Judge acknowledged that, on 1 September 2008, the Claimant and the Respondent had concluded an employment contract (hereinafter: the contract) which was originally valid from 1 September 2008 until 31 August 2010 and which provided for the Claimant to inter alia receive from the Respondent EUR 192,000 in twenty-four equal instalments of EUR 8,000 each, payable “at the latest (..) as per the 5th day of a calendar month”. Furthermore, the Single Judge observed that the Claimant was additionally entitled to receive from the Respondent “70 percent of the prize determined by club N premierlig and cup competitions, as well as European club competitions”. Besides, the Single Judge remarked that, according to the contract, it could be terminated prematurely by the Claimant in case the latter was “incapacitated by illness, injury or accident longer than one month” or if the Respondent had breached “any obligation stipulated by this Contract.” 6. In continuation, the Single Judge remarked that, in his claim to FIFA, the Claimant had requested from the Respondent the payment of the whole remuneration due in accordance with the contract alleging that his contractual relationship with latter had been terminated with just cause following the non-payment of his salary and bonuses. 7. In this context, the Single Judge took note that, on 15 June 2009, the Claimant had terminated his contractual relationship with the Respondent in writing arguing that the latter had breached the contract by not fully complying with its financial duties. In this context, the Single Judge additionally observed that, on 16 April and on 29 May 2009, the Claimant had put the Respondent in default and informed the latter that, in case on non-compliance within the given deadline, he would have unilaterally terminated its contractual relationship with it. 8. Moreover, the Single Judge noted that, for its part, the Respondent, in a letter dated 1 June 2009, had accused the Claimant of having left the club without permission and had imposed a fine in the amount of EUR 24,000 on the latter. In addition, the Single Judge noted that, in the Respondent’s opinion, the Claimant had breached the contract by leaving without permission and by prematurely terminating their contractual relationship. Finally, the Single Judge acknowledged that, nevertheless, in the aforementioned correspondence dated 1 June 2009, the Respondent had admitted the existence of “outstanding credits” towards the Claimant. 9. After having carefully considered the submissions of the parties as well as the documentation at his disposal, the Single Judge deemed that the first question to be addressed in the present matter was whether the Claimant had terminated his contractual relationship with the Respondent with or without just cause. 10. In this connection, the Single Judge first of all recalled that the Claimant had undisputedly rendered his services to the Respondent until 18 May 2009, when he had allegedly left for holidays, while the Respondent had failed to fully comply with his contractual obligation by not paying him, up to this moment, EUR 19,000 out of EUR 24,000 which were due as per the contract, i.e. 2 ½ months of salary. Furthermore, the Single Judge stressed that it was also undisputed that, when the contract was terminated by the Claimant in the middle of June 2009, the Respondent owed the Claimant outstanding salaries in the amount of USD 27,000, corresponding to 3 ½ months of salary. 11. In view of the above, bearing in mind his constant practice as well as taking into account the relevant clause of the contract with regard to the Claimant’s entitlement to prematurely terminate it (cf. point 5 above), the Single Judge considered that, in the present case, already the Respondent’s failure to pay to the Claimant 2 ½ months of salary had to be considered a violation of its contractual obligations. Hence and also considering that the Claimant had duly put the Respondent in default in April 2009, the Single Judge established, that already at the time the Claimant had left for holidays on 18 May 2009, the breach of contract perpetrated by the Respondent had reached such level that justified a termination of contract by the Claimant. Therefore, the Single Judge reasoned that, even on 18 May 2009, the Claimant had been entitled to unilaterally and prematurely terminate the contract. Thus, in the Single Judge’s opinion, it was irrelevant, whether at this time the Claimant had left for holidays with or without the Respondent’s permission. 12. As a consequence of the above and considering that already on 18 May 2009 the Claimant was entitled to unilaterally terminate the contract, the Single Judge came to the conclusion that, obviously, one month later, i.e. on 16 June 2009 when the contract was officially terminated in writing, the Claimant still had just cause to bring to an end his contractual relationship with the Respondent. 13. In view of all the above, the Single Judge resolved that the Claimant had terminated the contract with just cause on 15 June 2009. 14. Having established the aforementioned, the Single Judge went on to assess the potential financial consequences of the breach of the contractual relationship by the Respondent which had finally led to the early termination of the contract. In doing so, the Single Judge analysed the first part of the Claimant’s claim, i.e. his request for payment of outstanding remuneration in the amount of EUR 27,000, corresponding to part of his February 2009 salary, i.e. EUR 3,000, plus of his March, April and May 2009 salary, i.e. 8,000 x 3. 15. In this respect, the Single Judge recalled that, according to the contract, the Claimant was entitled to receive from the Respondent a monthly salary amounting to EUR 8,000. Furthermore, the Single Judge recalled that the Respondent had never contested that the above-mentioned sum of EUR 27,000 had not been paid to the Claimant. 16. In view of the above, and taking into account the legal principle of Pacta sunt servanda, which in essence means that agreements must be respected by the parties in good faith, as well as bearing in mind that the Respondent had not contested the allegation made by the Claimant that the amount of EUR 27,000, corresponding to part of his February 2009 salary plus his March, April and May 2009 salary had not yet been paid, the Single Judge concluded that the Claimant is entitled to receive from Respondent the outstanding remuneration of EUR 27,000. 17. In continuation, the Single Judge turned its attention to the Claimant’s request of payment of USD 4,200, allegedly corresponding to “premiums for the matches (…) played in (…) on 8th March 2009 (70 % from US-$ 2.000,00 = US-$ 1.400.00), played in (…) and (…) on 22nd March 2009 and 5th April 2009 (70 % from both games together US-$ 1.000,00 = US-$ 700,00) and played in (…) on 12th April 2009 (70 % from US-$ 3.000,00 = US-$ 2.100,00)”. In this connection, the Single Judge underlined that such requests had not been accompanied by any documentary evidence. 18. With the above-mentioned considerations in mind, the Single Judge referred to art. 12 par. 3 of the Procedural Rules, which stipulates that the burden of proof has to be carried by the party claiming a right on the basis of an alleged fact. In view of the content of the aforementioned provision, and bearing in mind that the mentioned request of the Claimant had not been accompanied by any documentary evidence, the Single Judge concluded that it should be rejected. 19. After having established the aforementioned, the Single Judge went on to deal with the second part of the Claimant’s claim, i.e. his request for compensation for breach of contract corresponding to his monthly salary until the end of his contractual relationship with the Respondent, i.e. until the end of August 2010. 20. Bearing in mind the foregoing, the Single Judge proceeded to the calculation of the monies payable under the terms of contract. In this respect, the Single Judge established that the residual value of the contract amounted to EUR 120,000, i.e. EUR 8,000 x 15. 21. Furthermore, the Single Judge observed that, between 1 July 2009 and 31 August 2010, the Claimant had apparently worked for the club X earning the total net amount of EUR 30,000. 22. On account of the above and considering his constant jurisprudence, the Single Judge decided that it was fair and reasonable to take into account in the calculation of the amount due by the Respondent as compensation for breach of contract the remuneration that the Claimant had received from his new employer, i.e. from the club X. 23. In view of the above and in particular considering the original duration of the contract as well as the Claimant’s financial claim and taking into account the general obligation of the Claimant to mitigate his damages, the Single Judge concluded that in casu the amount EUR 90,000 had to be considered reasonable and justified as compensation for breach of contract without just cause. 24. Consequently, the Single Judge decided that the Respondent had to pay to the Claimant EUR 90,000 as compensation for breach of contract. 25. After having deliberated on the Claimant’s claim against the Respondent, the Single Judge went on to consider the counter-claim of the latter. In this respect and first of all, the Single Judge remarked that the Respondent had failed to pay the relevant advance as per art. 17 of the Procedural Rules although it had been informed by FIFA that failure to do so would have resulted in its counter-claim not being heard. 26. On account of the above and in accordance with art. 9 par. 2 as well as art. 17 par. 5 of the Procedural Rules, the Single Judge decided that, as a consequence of the Respondent’s failure to pay the mandatory advance of costs, its counter-claim could not be heard. Thus, the Single Judge decided that the counter-claim of the Respondent was inadmissible. 27. In view of the all the above, the Single Judge decided that the claim of the Claimant is partially accepted and that the Respondent has to pay to the Claimant outstanding remuneration in the amount of EUR 27,000 as well as EUR 90,000 as compensation for breach of contract. Furthermore, the Single Judge held that the counter-claim of the Respondent against the Claimant is not admissible. 28. Lastly, the Single Judge referred to art. 25 par. 2 of the Regulations in combination with art. 18 par. 1 of the Procedural Rules, according to which in the proceedings before the Players’ Status Committee and the Single Judge, costs in the maximum amount of CHF 25,000 are levied. The costs are to be borne in consideration of the parties’ degree of success in the proceedings and are normally to be paid by the unsuccessful party. 29. In this respect, the Single Judge reiterated that the claim of the Claimant is partially accepted and that the Respondent is the party at fault. Therefore, the Single Judge decided that the Respondent has to bear the entire costs of the current proceedings in front of FIFA. 30. Furthermore and according to Annexe A of the Procedural Rules, the costs of the proceedings are to be levied on the basis of the amount in dispute. Consequently and taking into account that the total amount at dispute in the present matter amounts to EUR 147,000 and is consequently higher than CHF 150,000, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 20,000. 31. In conclusion and in view of the numerous submissions that had to be analysed in the present matter but taking into account that the present decision was taken by the Single Judge and not by the Players’ Status in corpore, the Single Judge determined the costs of the current proceedings to the amount of CHF 12,000. 32. Consequently, the amount of CHF 12,000 has to be paid by the Respondent in order to cover the costs of the present proceedings. III. Decision of the Single Judge of the Players’ Status Committee 1. The claim of the Claimant / Counter-Respondent, assistant coach R, is partially accepted. 2. The Respondent / Counter-Claimant, club N, has to pay to the Claimant / Counter- Respondent, assistant coach R, the amount of EUR 117,000 within 30 days as from the date of notification of this decision. 3. Any further claims lodged by the Claimant / Counter-Respondent, assistant coach R, are rejected. 4. If the aforementioned sum is not paid within the aforementioned deadline, an interest rate of 5% per year will apply as of the expiry of the fixed time limit and the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision. 5. The counter-claim of the Respondent / Counter-Claimant, club N, is not admissible. 6. The final costs of the proceedings in the amount of CHF 12,000 are to be paid by the Respondent / Counter-Claimant, club N, within 30 days as from the date of notification of the present decision as follows: 6.1. The amount of CHF 11,000 has to be paid to FIFA to the following bank account with reference to case nr.: UBS Zurich Account number 366.677.01U (FIFA Players’ Status) Clearing number 230 IBAN: CH27 0023 0230 3666 7701U SWIFT: UBSWCHZH80A 6.2. The amount of CHF 1,000 has to be paid directly to the Claimant / Counter- Respondent, assistant coach R. 7. The Claimant / Counter-Respondent, assistant coach R, is directed to inform the Respondent / Counter-Claimant, club N, immediately and directly of the account number to which the remittances under points 2 and 6.2 above are to be made and to notify the Players’ Status Committee of every payment received. Note relating to the motivated decision (legal remedy): According to art. 67 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS, a copy of which we enclose hereto. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives). The full address and contact numbers of the CAS are the following: Court of Arbitration for Sport Avenue de Beaumont 2 1012 Lausanne Switzerland Tel: +41 21 613 50 00 Fax: +41 21 613 50 01 e-mail: info@tas-cas.org www.tas-cas.org For the Single Judge of the Players’ Status Committee Jérôme Valcke Secretary General Encl. CAS Directives
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