F.I.F.A. – Commissione per lo Status dei Calciatori (2012-2013) – controversie allenatori – ———- F.I.F.A. – Players’ Status Committee (2012-2013) – coach disputes – official version by www.fifa.com – Decision of the Single Judge of the Players’ Status Committee passed in Zurich, Switzerland, on 19 March 2013, by Mr Geoff Thompson (England), Single Judge of the Players’ Status Committee, on the claim presented by the coach Coach B, from country I as “Claimant” against the Football Association of country Z as “Respondent” regarding an employment-related contractual dispute arisen between the parties.

F.I.F.A. - Commissione per lo Status dei Calciatori (2012-2013) – controversie allenatori – ---------- F.I.F.A. - Players' Status Committee (2012-2013) – coach disputes – official version by www.fifa.com – Decision of the Single Judge of the Players’ Status Committee passed in Zurich, Switzerland, on 19 March 2013, by Mr Geoff Thompson (England), Single Judge of the Players’ Status Committee, on the claim presented by the coach Coach B, from country I as “Claimant” against the Football Association of country Z as “Respondent” regarding an employment-related contractual dispute arisen between the parties. I. Facts of the case 1. On 29 June 2010, Coach B, from country I (hereinafter: the Claimant) and the Football Association of country Z (hereinafter: the Respondent) signed a “Memorandum of Understanding” (hereinafter: the Memorandum) under the terms of which the Claimant was engaged by the Respondent as its “National Football Team Coach” for a period of two years for a total remuneration of USD 600,000 for himself “and his Team”. The Memorandum stated that the Claimant “shall employ at his own cost no more than three Assistant Coaches”. Furthermore, article 1 of the Memorandum provided that “The Contract [i.e. the Memorandum] may be renewed for a further period of two years”. 2. On 6 August 2010, the Claimant and the Respondent concluded an employment contract (hereinafter: the contract), valid from 15 July 2010 until 15 July 2012, which could be renewed “for a further term provided the party desirous of renewing the Agreement [i.e. the contract] shall inform the other party of the Agreement”. 3. Article 5.1 of the contract provided that the Claimant would receive from the Respondent “(a) A fixed salary at the rate of Fifty Thousand United States Dollars (US $ 50,000) net on the 1st day of every month for him and his Three Assistant Coaches”. 4. Article 7 of the contract stated, inter alia, that “The Employer [i.e. the Respondent] shall be responsible for providing the Employee [i.e. the Claimant] with the following: (a) A full furnished four bed roomed house in a secure area of Lusaka […] (e) Full return passage by air, Business class for the Employee, his wife and child once a year from Lusaka to country I” as well as “(f) […] at the beginning of the Agreement” and “(g) […] at the end of the Agreement”. 5. Article 8.1 of the contract stipulated, inter alia, that the contract “may be terminated forthwith by the Employer [i.e. the Respondent] without prior notice to the Employee [i.e. the Claimant] at any time if the Employee shall: (a) Commit any serious or persistent breach of any of the provisions herein contained; (b) Be guilty of any grave misconduct or wilful neglect in the discharge of his duties herein”. Article 8.4 of the contract stipulated that the contract “will be reviewed should the team fail to qualify for the 2012 Africa Cup of Nations”. 6. Article 9.1 of the contract provided that “All disputes arising out of or in connection with the Agreement which cannot be settled in an amicable manner shall be referred to the Federation International de Football Association (FIFA) by either party and FIFA’s decision shall be final and binding on both parties”. 7. On 21 November 2011, the Claimant lodged a complaint with FIFA against the Respondent, claiming that the latter had terminated their contractual relationship unilaterally and without just cause. 8. In this respect, the Claimant first argued that, although the contract was valid until 15 July 2012, the parties had, based on article 8.4 of the contract and article 1 of the Memorandum, agreed verbally that the contract should be valid “from 15/07/2010 until 15/07/2012 with a prorogation at the same conditions until 15/07/2014 in case of qualification” for the 2012 Africa Cup of Nations. In this context, the Claimant alleged that the “aimed qualification was gained”. 9. Furthermore, the Claimant alleged that, on 10 October 2011, he was orally informed “about the decision of FAZ [i.e. the Respondent] to terminate the Contract on the base of poor relationship with the players of the national team”. Consequently, on the next day, i.e. 11 October 2011, the Claimant had delivered by hand a letter to the Respondent “asking for clarification” and had received from the latter, on the same day, a letter informing him as follows: “We write to inform you that, following your discussion with the FAZ President, the FAZ Executive Committee has decided to terminate your contract of service with immediate effect. Your poor working relationship and lack of respect for authority with the Executive Committee, Management of FAZ and the country Z Technical Bench of the national team because of the manner in which you were engaged has led to this decision. This is in line with clause 8.1 (a) and (b) of your contract of employment. Kindly take note that despite qualification of our team to AFCON 2012 the Association is not convinced that the team performed well technically. Kindly ensure that you return all the FAZ property under your care”. 10. The Claimant alleged that he had always had an excellent relationship with the players and further claimed that the Respondent had never explained to him the real reason of his dismissal. Moreover, the Claimant argued that before 11 October 2011 he had never “received any disciplinary sanctions or complaints” from the Respondent. 11. In addition, the Claimant stated that, on 17 October 2011, he had received another letter from the Respondent, in which he was requested again to vacate his flat, return his car and was told that the Respondent had “informed our Immigration authorities of the termination of your and your colleagues contracts of service” and that, consequently, “The Authorities have further been requested to cancel or revoke the work permits with immediate effect as required by law”. 12. The Claimant alleged that, as a result, he had not been able to stay in country Z any longer in order to “defend his rights and to make his position clear”. Moreover, the Claimant explained to have then sent a letter to the Respondent on 19 October 2011, contesting the termination of the contract and asking for damages and to have received from the latter, on 28 October 2011, the response that it was not prepared to pay any damages as the contract was ended following mutual consent and as the Claimant had breached article 8.1 (a) and (b) of the contract. 13. In view of the above, the Claimant requested from the Respondent the “loss of the fees agreed by the Contract accrued and to accrue from 11 October 2011 (the date of the termination letter) until the date of the natural expiry under clause 4.2 and 8.4 of the Contract and clause 1 of the Memorandum, equal to $ 1.650.000,00 considering the agreed renewal of the Contract until July 2014 in case of qualification or to $ 450.000,00 considering as expiry date the 15 July 2012”. In this regard, the Claimant explained that the amount of USD 1,650,000 represented USD 50,000 x 33 months, i.e. the period “from 11 October 2011 – the date of the termination letter – until July 2014 – the date of the natural expiry of the contract”, and that the amount of USD 450,000 represented USD 50,000 x 9 months, i.e. the period “from 11 October 2011 – the date of the termination letter – until July 2012 – the date of the first expiry of the contract, without considering its renewal”. 14. Furthermore, and as to the monthly salary due to “him and his Three Assistant Coaches” under article 5.1 of the contract, the Claimant claimed that “by virtue of a verbal agreement Coach B [i.e. the Claimant] must pay to each of them the monthly salary of USD 1,000 plus the expenses of travels and hotels” and also added that “the Assistants are not part in the Contract of Employment between FAZ [i.e. the Respondent] and Coach B and consequently they have no direct action against FAZ, being Coach B personally responsible for their payment”. 15. In addition, the Claimant requested from the Respondent an amount of USD 37,785 representing the sum of USD 30,370 as expenses under article 7 of the contract in order “to carry on his mandate” which were allegedly “already submitted and approved” by the Respondent as well as the sum of USD 7,415 for the costs of the flight tickets for his as well as his staff’s repatriation. 16. Finally, the Claimant also requested FIFA to condemn the Respondent to pay him an additional amount of “compensation for damages suffered to his professional image and for loss of chances, to be determined on equitable bases”. 17. On 27 January 2012, the Respondent responded to the Claimant’s claim and, first of all, denied that the parties had verbally agreed that their contractual relationship would last until July 2014. Furthermore, the Respondent recognised that the contract was terminated in October 2011 and added that the Claimant had “agreed to have the contract of employment terminated by mutual consent” and that such termination occurred because the Claimant “lacked respect and had a poor relationship with the Executive Committee, Management and the Technical Bench of the country Z National Team”. Moreover, the Respondent denied that the Claimant had been prevented from staying in country Z after the termination of his contract to “defend his rights” as he could have applied “for temporary residence” and that “This was an issue Coach B could have pursued with the Immigration Authorities” himself. 18. In addition, the Respondent stated that the contract was validly and lawfully terminated in October 2011 and that the Claimant “was paid all his dues and cannot make any further claims for the period October 2011 to July 2012”. The Respondent also deemed that the Claimant should not be entitled to the amount of USD 37,785 as these “expenses were incurred on trips not sanctioned” by the Respondent. 19. On 24 February 2012, the Respondent added further comments to the abovementioned response and argued that FIFA should not decide the matter since “The Constitution of the Republic of country Z establishes a specialised tribunal called the Industrial Relations Court […] mandated to deal with industrial matters of Coach B’s nature” and that the claim of the Claimant can, consequently, “be competently handled by the Industrial Relations Court”. 20. On 20 March 2012, the Claimant provided his response to the statements of the Respondent and denied that country Z “has an international arbitral tribunal guaranteeing fair proceedings”. Furthermore, the Claimant denied that the contract was terminated by mutual consent and rejected the allegations that he had lacked respect towards the Respondent. In addition, the Claimant maintained that there was no just cause to justify his dismissal under article 8.1 (a) and (b) of the contract and that his contract was effectively valid until 15 July 2014 and not only until 15 July 2012 as alleged by the Respondent. 21. On 4 June 2012, the Respondent provided its closing remarks in the matter and reiterated that the contract was lawfully terminated in October 2011 on the basis of article 8.1 (a) and (b) of the contract. Finally, the Respondent again asserted that FIFA lacked “jurisdiction to determine this matter because there exists in country Z an independent arbitral tribunal guaranteeing fair proceedings”. 22. On 16 November 2012, FIFA requested the Respondent to provide further documents in support of its allegation that country Z has an independent arbitration tribunal guaranteeing fair proceedings in the sense of art. 22 c) of the FIFA Regulations on the Status and Transfer of Players as well as FIFA’s circular nr. 1010 at national level, competent to deal with “employment related disputes between a club and or an Association and a coach of international dimension”. 23. On 23 November 2012, the Respondent replied that “At the time of the termination of the contract there was and still is no independent arbitration tribunal that specifically deals with football related employment disputes”, but that “there was no need to refer anything to such a tribunal as there was no dispute between the Association and Coach B”. In this context, the Respondent further alleged that “Had any such dispute existed at the time of termination or any time thereafter, Coach B had recourse to our national legal system that governs all contracts including his […]”. 24. On 21 November 2012, the Claimant informed FIFA that, after leaving country Z, he had concluded an employment contract with the Club D, from country B on 10 April 2012, which provided for a monthly salary of EUR 13,000 “for the period from 10.04.2012-30.06.2012”, for a monthly salary of EUR 10,000 “for the period from 01.07.2012-30.06.2013” as well as “for the period 01.07.2013-15.06.2014” (monthly salary would remain at EUR 13,000 during the aforementioned two periods if the club qualified to the “Europa League” or the “Champions League”). II. Considerations of the Single Judge of the Players’ Status Committee 1. First of all, the Single Judge of the Players’ Status Committee (hereinafter simply referred to as: the Single Judge) analysed which Procedural Rules are applicable to the present matter. In this respect, he referred to art. 21 par. 2 and 3 of the 2012 and 2008 editions of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber and noted that the present dispute was submitted to FIFA on 21 November 2011. Consequently, 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) was applicable to the matter in hand. 2. Subsequently, 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 to art. 26 par. 1 of the 2012 and 2010 editions of the Regulations on the Status and Transfer of Players and again noted that the claim was lodged with FIFA on 21 November 2011. The Single Judge therefore concluded that the 2010 edition of the FIFA Regulations on the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the case in hand as to the substance. 3. The applicable regulations having been established, the Singe Judge assessed whether he was competent to hear the present matter and recalled that the Respondent had argued in its first submission that FIFA was not competent to deal with the present dispute as the Claimant’s claim could have been submitted to the “Industrial Relations Court” and to have later on stated that the Claimant had the possibility to have recourse to the national court system in case of dispute. 4. In view of the above and as a preliminary remark, the Single Judge noted that article 9.1 of the contract concluded between the parties specifically mentioned that “All disputes arising out of or in connection with the Agreement which cannot be settled in an amicable manner shall be referred to the Federation International de Football Association (FIFA) by either party and FIFA’s decision shall be final and binding on both parties” and therefore concluded that the parties had clearly agreed to submit any dispute to FIFA, thus excluding recourse to any other deciding bodies, including national courts. 5. Consequently, based on art. 3 par. 1 of the Procedural Rules, in conjunction with art. 23 par. 1 and 3 and art. 22 c) of the Regulations and in view of the clear jurisdiction clause granting competence to the FIFA Players’ Status Committee contained in article 9.1 of the contract, the Single Judge concluded that he was competent to deal with the present matter since it concerned a dispute between an country I coach and the Football Association of country Z. 6. The applicable regulations and his competence having been established and entering into the substance of the present matter, the Single Judge acknowledged the positions of the parties as well as the documents provided in their supports throughout the proceedings. 7. First of all, the Singe Judge was eager to emphasise that both parties agreed that the contract was terminated on 11 October 2011. However, the Single Judge noted that while the Claimant had alleged that the contract was terminated by the Respondent unilaterally and without just cause, the latter deemed that the termination had been mutually agreed between the parties and that therefore the contract was lawfully terminated. 8. At this point, the Single Judge referred to the content of art. 12 par. 3 of the Procedural Rules according to which “any party claiming a right on the basis of an alleged fact shall carry the burden of proof”. In other words, only allegations supported by clear evidence can be taken into consideration by the deciding body. 9. In continuation, the Single Judge reverted to the documents provided by the parties and noted that the Respondent had not provided any documentary evidence demonstrating that the Claimant had “agreed to have the contract of employment terminated by mutual consent”. In the absence of any such evidence, the Single Judge held that it had to be assumed that the contract was not terminated by “mutual consent” as alleged by the Respondent and therefore concluded that the latter had terminated the contract unilaterally. 10. With the aforementioned considerations in mind, the Single Judge went on to analyse whether the Respondent had terminated the contract with just cause. In this respect, the Single Judge noted that article 8.1 of the contract provided that said contract could be terminated by the Respondent at any time and “without prior notice” to the Claimant if the latter committed a “serious or persistent breach of any of the previsions herein contained” or was found “guilty of any grave misconduct or wilful neglect in the discharge of his duties”. 11. The Single Judge then reverted to the allegations of the Respondent according to which the contract was terminated on the basis that the Claimant had “lacked respect and had a poor relationship with the Executive Committee” and “the players of the national team”. In this regard, and while noting that the Respondent had not provided any evidence in support of its allegations, the Single Judge expressed the view that an alleged “lack of respect” or “poor relationship” with players or staff of an association could not reasonably constitute grounds for termination under article 8.1 of the contract. As a matter of fact, the Respondent had failed to demonstrate that the Claimant had committed a serious or persistent breach of his obligations under the contract or had been found guilty of “grave misconduct”. In this context, the Single Judge added that if the Respondent had deemed at the time that the Claimant was misbehaving and/or had committed a serious and persistent breach of his obligations, it should have at least warned the Claimant beforehand. 12. Consequently, and having established that the Respondent had terminated the contract without just cause, the Single Judge assessed whether the Claimant should be entitled to any compensation and, in the affirmative, how much compensation he should receive. 13. Before establishing the amount of compensation and for the sake of good order, the Single Judge was eager to underline that although the contract provided under article 5.1 that the amount of USD 50,000 as monthly salary would be paid to the Claimant “for him and his Three Assistant Coaches”, the contract was in fact only signed by and between the Claimant and the Respondent and it could therefore be assumed that the Claimant would then have been responsible for distributing to the members of his staff their respective salaries. 14. In view of the above, and first of all, the Single Judge recalled that the Claimant had argued that, on the basis of article 1 of the Memorandum and article 8.4 of the contract, the parties had verbally agreed that their contractual relationship would be extended until 15 July 2014 in case of qualification for the 2012 Africa Cup of Nations. In this respect, the Single Judge noted that article 1 of the Memorandum signed on 29 June 2010 simply provided that “The Contract may be renewed for a further period of two years” and did not stipulate that it would automatically be extended until July 2014 in case of qualification. Likewise, the Single judge took note that article 8.4 of the contract did not specifically provide that it would be prolonged until July 2014 in case of qualification but rather stipulated that said contract would be “reviewed should the team fail to qualify for the 2012 Africa Cup of Nations”. 15. Therefore and in the absence of documentary evidence demonstrating that the parties had in fact agreed, as alleged by the Claimant, that their contractual relationship would last until July 2014, the Single Judge had no other option but to conclude that the parties had only agreed that the contract would end on 15 July 2012. 16. On that basis, the Single Judge reverted to the claim of the Claimant and noted that the latter was claiming the amount of USD 450,000 “considering as expiry date the 15 July 2012” and underlined that said amount represented nine monthly salaries of USD 50,000, payable on the 1st day of the month, for the period from November 2011 to July 2012. In this respect, and in view of the fact that the Claimant should have received the aforementioned amount if the Respondent had not terminated his contract, the Single Judge held that the Claimant is, in principle, entitled to this amount as compensation for breach of contract. 17. At this point, the Single Judge emphasised that the Claimant was also under the obligation to mitigate the loss he suffered as a result of said termination by the Respondent. In this regard, the Single Judge noted that the Claimant had signed another employment contract with Club D, from country B on 10 April 2012, under the terms of which he had apparently received an amount of EUR 52,000 for the period from April to July 2012 and that such amount represented USD 68,000 on the day the contract was concluded. 18. Consequently, the Single Judge held that the amount of USD 68,000 earned with Club D should be deducted from the amount of compensation established above, i.e. USD 450,000, and therefore concluded that the Respondent should pay to the Claimant the amount of USD 382,000 as compensation for breach of contract (i.e. USD 450,000 – USD 68,000). 19. As to the amount of USD 37,785 requested by the Claimant as various “expenses” under article 7 of the contract, and in view of the receipts for hotels, food, travel expenses, flight tickets for the Claimant and his staff provided by the Claimant, the Single Judge concluded that the latter should only be entitled to the flight ticket of 31 October 2011 (country Z to country I) as his name appeared on it and as it was provided under article 7 of the contract. In this respect, the Single Judge stressed that article 7 of the contract only mentioned the Claimant and his family and did not stipulate that the Claimant would be entitled to the expenses occurred in relation to his “staff”. 20. Furthermore, and as to the additional amount requested by the Claimant as “compensation for damages suffered to his professional image and for loss of chances, to be determined on equitable bases”, the Single Judge referred to the well-established jurisprudence of the Players’ Status Committee in similar cases and recalled that whenever a party claims any additional damages, i.e. amounts which are not specifically provided for in an agreement, the said party has to provide conclusive and documented evidence in order for the additional damages to be awarded. Equally, the Single Judge noted that the contract itself did not provide for any specific clause entitling the Claimant to receive an additional compensation for loss of “image” or “chances” in case of breach. In view of these considerations, the Single Judge ruled that the Claimant is not entitled to the said amount, and decided to reject this part of the latter’s claim. 21. In view of all of the above, and Single Judge concluded that the Claimant is entitled to receive from the Respondent the amount of USD 382,000 for compensation for breach of contract as well as the amount of USD 4,305 as costs of a flight ticket. 22. Finally, 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 proceedings before the Players’ Status Committee, including its Single Judge, costs in the maximum amount of currency of country H 25,000 are levied and that such costs are to be borne in consideration of the parties’ degree of success in the proceedings. 23. In respect of the above and taking into account that the claim of the Claimant has been partially accepted, the Single Judge concluded that the costs of the current proceedings before FIFA have to be split between the parties. Moreover 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. On that basis, the Single Judge held that the amount to be taken into consideration in the present proceedings is USD 1,687,785 (i.e. USD 1,650,000 + USD 37,785). Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to currency of country H 25,000. 24. In conclusion, and in view of the circumstances of the present matter as well as the fact that the case was decided by the Single Judge and not by the Players’ Status Committee in corpore, the Single Judge determined the costs of the current proceedings to the amount of currency of country H 15,000. Consequently, the Single Judge of the Players’ Status Committee decided that the amount of currency of country H 10,000 has to be paid by the Respondent and that the amount of currency of country H 5,000 has to be paid by the Claimant 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, Coach B, is admissible. 2. The claim of the Claimant, Coach B, is partially accepted. 3. The Respondent, the Football Association of country Z, has to pay to the Claimant, Coach B, within 30 days as from the date of notification of the present decision, the amount of USD 382,000 as compensation for breach of contract as well as the amount of USD 4,305 as costs of a flight ticket. 4. If the aforementioned total amount of USD 386,305 is not paid within the aforementioned deadline, an interest rate of 5% per year will apply as of 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. Any further claims lodged by the Claimant, Coach B, are rejected. 6. The Claimant, Coach B, is directed to inform the Respondent, the Football Association of country Z, immediately and directly of the account number to which the remittance under point 2 above is to be made and to notify the Players’ Status Committee of every payment received. 7. The total costs of the proceedings in the amount of currency of country H 15,000 are to be paid by both parties, within 30 days as from the date of notification of the present decision as follows: 7.1 The amount of currency of country H 10,000 by the Respondent, the Football Association of country Z, to FIFA to the following bank account, with reference to case nr. : 7.2 The amount of currency of country H 5,000 by the Claimant, Coach B. Given that the latter already paid the amount of currency of country H 5,000 as advance of costs at the start of the present proceedings, the Claimant, Coach B, is exempted from paying the aforementioned costs of the proceedings. ***** Note relating to the motivated decision (legal remedy): According to article 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 Markus Kattner Deputy Secretary General Encl. CAS Directives