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 thePlayers’ Status Committee passed in Zurich, Switzerland, on 18 March 2013, in the following composition: Theo Zwanziger (Germany), Chairman Chuck Blazer (USA), Deputy Chairman Geoff Thompson (England), member Tai Nicholas (New Zealand), member Saeed Al Masri (Syria), member Semetey Sultanov (Kyrgyzstan), member Norman Darmanin Demajo (Malta), member Aminu Maigari (Nigeria), member Victor Cissé (Senegal), member Luis H. Bedoya (Colombia), member Decio De María (Mexico), member on the claim presented by the coach Coach S, from country I as Claimant against the club Club L, from country C as Respondent regarding a contractual dispute 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 thePlayers’ Status Committee passed in Zurich, Switzerland, on 18 March 2013, in the following composition: Theo Zwanziger (Germany), Chairman Chuck Blazer (USA), Deputy Chairman Geoff Thompson (England), member Tai Nicholas (New Zealand), member Saeed Al Masri (Syria), member Semetey Sultanov (Kyrgyzstan), member Norman Darmanin Demajo (Malta), member Aminu Maigari (Nigeria), member Victor Cissé (Senegal), member Luis H. Bedoya (Colombia), member Decio De María (Mexico), member on the claim presented by the coach Coach S, from country I as Claimant against the club Club L, from country C as Respondent regarding a contractual dispute between the parties I. Facts of the case 1. On 21 October 2010, Club L, from country C (hereinafter: the Respondent) and Coach S, from country I (hereinafter: the Claimant) signed an employment contract (hereinafter: the contract) valid from 21 October 2010 until 30 May 2012. 2. Article 1 a) of the contract provided that the Claimant would receive from the Respondent the total amount of EUR 80,000 for “the employment period (2010-2011)”, payable in eight equal instalments of EUR 10,000 every 21st of each month, the first instalment to be paid on 21 November 2010 and the last instalment on 21 June 2011. 3. Article 2 a) of the contract provided that the Claimant would receive from the Respondent the total amount of EUR 110,000 for “the employment period (2011-2012)”, payable in 11 equal instalments of EUR 10,000 every 1st of each month, the first instalment to be paid on 1 July 2011 and the last instalment on 30 May 2012. 4. The contract further stipulated that the Respondent “pays also for the whole duration of this agreement, the rent of a furnished flat for the needs of the“ Claimant and that the Respondent “shall give the Football Coach [i.e. the Claimant] holidays according to law and they will be taken if and when the playing schedule of the employer allows that”. 5. Article 13 of the contract provided that “The country C Football Association rules and regulations apply as far as jurisdiction and both parties agree that they will respect the rules of FIFA and UEFA” and article 11 stipulated that the contract “shall be governed and construed in accordance with country C Labour Laws and relevant regulations”. 6. Article 17 of the contract stipulated that “The employer [i.e. the Respondent] will be liable to pay the remainder of the contract to the Football Coach [i.e. the Claimant] if they terminate his contract for no good cause and or reason according to the law”. 7. Also on 21 October 2010, the parties concluded an “Image Rights Agreement”, by means of which, the Respondent undertook to pay the Claimant “additionally to his agreed salary as per employment agreement” the amount of EUR 80,000 for “employment period (2010-2011)” and the amount of EUR 110,000 for “the employment period (2011-2012)”. 8. On 29 June 2011, the Claimant lodged a claim with FIFA against the Respondent for breach of contract. In this respect, the Claimant alleged that on 4 June 2011, the Respondent had “posted a unilateral announcement on its web site, stating the termination of Coach S’s employment and the appointment of a new coach to the Club”. 9. The Claimant further stated that on 6 June 2011, he had requested from the Respondent the payment of EUR 330,000, which, according to him represented “3 months of the 2010/2011 season that had not been paid, totalling €88K, as well as payment for the 2011/2012 season, totalling €242”. In this respect, the Claimant explained that the sum of EUR 88,000 represented four salaries of EUR 20,000 each and four months of accommodation at EUR 2,000 per month and that the sum of EUR 242,000 represented EUR 220,000 in salary and EUR 22,000 in accommodation fees. 10. In light of the above, the Claimant deemed that FIFA should condemn the Respondent to pay him the above-mentioned amount of EUR 330,000, as well as expenses and “attorney retainer fees”. 11. In reply to the claim, the Respondent, first and foremost, contested FIFA’s competence to hear the present claim, arguing that the parties had contractually agreed that the Claimant was bound “to resolve any dispute or any grievance with the Club [i.e. the Respondent] within the competent bodies of the country C Football Association and particularly at the Dispute Resolution Chamber of the country C Football Association”. Furthermore, the Respondent argued that FIFA was not competent to deal with “image rights” agreements. 12. In continuation, and as to the substance of the matter, the Respondent acknowledged that the contract was valid for two seasons but argued that in accordance with the “country C National legislation […] Termination law of 1967”, it had the right to terminate the contract within the first 12 months, “since this period is considered and agreed to be a probation period”. 13. In this context, the Respondent argued that it had terminated the contract with just cause by means of a letter dated 23 May 2011, due to the fact that the Claimant had left the club “before the end of the season without any justification and without any notice”. In this respect, the Respondent alleged that “The action taken by the Club [i.e. the Respondent] was after repeated similar violations of the contract by the coach [i.e. the Claimant] and despite his warnings from the Club”. In support of its allegations, the Respondent provided FIFA with the “Minutes of the Meeting of the Committee of the Club on the 4/04/2011”, as well as letters dated 10 January 2011, 28 March 2011 and 23 May 2011 allegedly “Delivered by hand personally”. The aforementioned minutes stated that the Claimant apologised for having travelled abroad on numerous occasions without permission and that “The committee decided after deliberation to accept the apologies of the coach but to give him a final warning that if he leaves his post without permission in the future then his contracts will be terminated without any other notification”. 14. In view of the above, the Respondent argued that the Claimant should not be entitled to “indemnity or damages whatsoever since the Club [i.e. the Respondent] has lawfully and contractually and with just cause terminated the said contracts”. In addition, the Respondent alleged that the Claimant had not tried to mitigate his loss “since he was eligible to be transferred to any other club of its choice after the termination of the contract”. 15. In his replica, the Claimant argued that “none of the agreements contain any clauses that restrict and/or prevent him from taking advantage of his day off to take a 24-hour flight to country I and/or country G (as he did)” and further stated that the Respondent had paid for those tickets “knowingly and upon its consent”. In support of his allegations, the Claimant provided a payment receipt issued by the Respondent and amounting to EUR 2,703 “Paid to Coach S”, “For tickets”, “Date 1/3/11”. 16. In continuation, the Claimant denied having received the above-mentioned letters from the Respondent or to have ever been summoned to explain himself to the Respondent’s committee. The Claimant further claimed that he could never have received the letter dated 23 May 2011 personally from the Respondent as he had flown to country I on 18 May 2011, as shown in the passport stamped by the country I authorities on 18 May 2011. 17. With regard to the jurisdiction issue raised by the Respondent, the Claimant deemed that such argument should be rejected, since “the agreements” do not contain any binding arbitration clause. 18. In its final position, the Respondent stated that it had never forbidden the Claimant from taking his holidays but had not authorised the trips that had taken place “in a period that was not considered as the period of holidays and without any permission or leave from the employer [i.e. the Respondent]”. 19. In continuation, the Respondent stated that “all of the charges and summonses were delivered to the coach [i.e. the Claimant] who even appeared to the meetings and gave his explanations before the Committee”. 20. On 27 April 2012, and in response to FIFA’s request to be provided with documentary evidence in support of the Respondent’s allegations that the country C Football Association has an “independent arbitration tribunal guaranteeing fair proceedings”, the country C Football Association provided FIFA with a copy of the “Regulations for the Registration and Transfer of Football Players” (hereinafter: the regulations), which were approved on 7 June 2005 and entered into force on 15 June 2005. 21. Art. 22.11 par. 1 of the regulations stipulates, inter alia, that “The Dispute Resolution Committee shall have the competence to adjudicate and/or resolve any financial or other disputes which may arise: […] E. Between trainers, assistant trainers, physiotherapists, masseurs, physicians and other technical officers and clubs”. 22. Art. 22.1 of the regulations provides, inter alia, that “The Dispute Resolution Committee shall consist of five members and more specifically of the Chairman Vice-Chairman and of three members” and that “The Chairman, Vice-Chairman and one member of the Dispute Resolution Committee shall be elected by the Executive Committee of the Association and two members shall be elected by the country C Football Players’ Association”. 23. In accordance with art. 22.2 par. 1 “The members of the Dispute Resolution Committee must have high moral standards, an impeccable character and possess experience and skills in respect of sports and of football in particular and must be lawyers of a renowned repute and active members of the bar association”. Furthermore, art. 22.2 par. 2 of the regulations provides, inter alia, that “Members of the Executive Committee of a club […]” and “Active players, trainers, referees […], players’ agents, club agents, employees or former employees of a club affiliated to the country C Football Association may not be elected to the Dispute Resolution Committee”. 24. Art. 22.8 stipulates that “decisions of the Dispute Resolution Committee are taken by simple majority. In the case of an equality of votes, the Chairman or acting chairman shall have the casting vote” and that “The Chairman and the members of the Dispute Resolution Committee, who have whether directly or indirectly an interest with any party to proceedings or with an attorney appearing before the Committee, shall not take part in the procedure of consideration of the particular matter”. 25. Art. 22.10 states that “Any decision of the Dispute Resolution Committee may be appealed to the Disciplinary Authority of the country C Football Association”. 26. Finally, art. 22.11 par. 5 stipulates that “The Dispute Resolution Committee shall not have the power and may not consider cases, which are not filed within one month from the time that a dispute is raised. Cases, which have not been filed within the above-prescribed term, are time-barred”. 27. On 26 November 2012, the Claimant informed FIFA that he had been “unable to conclude any other employment contract in the period running from June 2011 until May 2012”. II. Considerations of the Players’ Status Committee 1. First of all, the Players’ Status Committee (hereinafter also simply referred to as: the Committee) analysed which Procedural Rules were applicable to the matter at hand. In this respect, it 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 2012) and acknowledged that the present dispute was submitted to FIFA on 29 June 2011, thus before the aforementioned rules entered into force (1 December 2012). Consequently, the Committee 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 at hand. 2. Subsequently, the Committee 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, the Committee referred, on the one hand, to art. 26 par. 1 and 2 of the 2012 and 2010 editions of the Regulations on the Status and Transfer of Players and, on the other hand, to the fact that the claim was lodged with FIFA on 29 June 2011. In view of the foregoing, the Players’ Status Committee 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 Players’ Status Committee went on to assess whether it was competent to hear the present matter and recalled that the Respondent had argued in its submissions that FIFA was not competent to deal with the present dispute as the Claimant had contractually agreed that he would “resolve any dispute or any grievance with the club [i.e. the Respondent] within the competent bodies of the country C Football Association and particularly at the Dispute Resolution Chamber” of the country C Football Association. 4. Bearing in mind the above, the Committee went on to analyse the content of the contract and concluded that said contract did not contain any jurisdiction clause but rather a choice of law clause under its article 13. This said and even assuming that the parties had agreed that any dispute should be resolved by the competent deciding body of the country C Football Association, the Players’ Status Committee held the view that, on the basis of the “Regulations for the Registration and Transfer of Football Players” which was submitted in support of the Respondent’s allegations that the country C Football Association has an “independent arbitration tribunal guaranteeing fair proceedings”, it could not conclude that said tribunal would guarantee fair proceedings. 5. In particular, the members of the Players’ Status Committee noted that art. 22.11 of said regulations provided that the “Dispute Resolution Committee shall not have the power and may not consider cases, which are not filed within one month from the time that a dispute is raised. Cases, which have not been filed within the above-prescribed term, are time-barred”. 6. In view of the unusually short period during which parties at dispute could lodge claims with the “Dispute Resolution Committee” of the country C Football Association, the members of the Committee were of the view that it could not be concluded that the relevant tribunal did guarantee “fair proceedings”. The Committee added that the duration of any periods of prescription, i.e. the period of time usually starting on the day on which the cause of action occurred and during which a related claim can be lodged with the competent tribunal, should be reasonable and fair. In this respect, the Players’ Status Committee held that a period of one month was clearly too short for a party to initiate proceedings. 7. Having established the above, the Players’ Status Committee went on to assess whether it was competent to hear the present dispute. In this respect, it confirmed that, on the basis of art. 3 par. 1 of the Procedural Rules in connection with art. 23 par. 1 and 3 as well as art. 22 c) of the Regulations, it was, in principle, competent to deal with the present matter as it concerned an employment-related dispute of an international dimension between an country I coach and a country C club. 8. In continuation, and for the sake of good order, the Players’ Status Committee was keen to emphasise that, in view of the wording of art. 22 c) of the Regulations, its competence was limited to “employment-related” disputes and that, therefore, any claim or part of claim related to the exploitation of the “image rights”, and any agreement signed in this respect, was by definition clearly outside of its field of competence. Consequently, the Players’ Status Committee held that it would thus not be competent to deal with the part of the Claimant’s claim related to the “Image Rights Agreement” concluded between the parties on 21 October 2010, i.e. on the same day as the contract. 9. The applicable regulations and its competence having been established, and entering into the substance of the present matter, the members of the Players’ Status Committee acknowledged the positions of the parties as well as the documents provided in their supports. 10. First of all, the Committee noted that the parties had concluded the contract on 21 October 2010 and that according to said contract, the Claimant was entitled to receive from the Respondent, for “the employment period (2010-2011)”, the total amount of EUR 80,000, in 10 equal instalments, payable every 21st of the month from 21 November 2010 until 21 June 2011. Equally, the Committee remarked that the parties had also agreed upon a total salary of EUR 110,000 for “the employment period (2011-2012)”. 11. Furthermore, the Players’ Status Committee noted that while the Claimant had argued that he was unfairly and unilaterally dismissed by the Respondent at the beginning of June 2011, the Respondent had alleged that it had terminated the contract following the Claimant’s frequent absences without authorisation. At this point, the members of the Committee were keen to underline 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. 12. In this context, the Players’ Status Committee referred to the letters dated 10 January 2011, 28 March 2011 and 28 May 2011 as well as to the “Minutes of the Meeting of the Committee of the Club on the 4/04/2011” that had been provided by the Respondent in support of its allegations that the Claimant had, by his frequent absences without authorisation, repeatedly violated his obligations under the contract. 13. Furthermore, the Players’ Status Committee noted that the “Minutes of the Meeting of the Committee of the Club on the 4/04/2011” clearly mentioned that the Claimant was present during the hearing and that he was given a “final warning” on that occasion. Consequently, the members of the Committee concluded that the Claimant must have known about the correspondence sent by the Respondent. 14. Having established the above, the Players’ Status Committee went on to address the question of whether the contract was terminated by the Respondent with just cause or not. In this respect, the Committee recalled that the Claimant had been warned on two occasions by the Respondent (i.e. on 10 January 2011 and 28 March 2011) and had then been convened to a meeting to explain himself on 4 April 2011, during which he was given a final warning that “if he leaves his post without permission in the future then his contracts will be terminated without any other notification”. Subsequently, the Claimant was finally dismissed by the Respondent on 23 May 2011. 15. Notwithstanding the above, the Committee recalled that the Claimant had argued that the Respondent had failed to pay him “3 months of the 2010/2011 season” which represented an amount of EUR 30,000 as salary for the months of March, April and May 2011 (i.e. 3 x EUR 10,000) and which the Claimant was entitled to receive at the time of his dismissal. In this regard, the Committee noted that the Respondent had not provided evidence demonstrating that said amount had been paid to the Claimant nor had it provided any justification for the non-payment of the relevant salaries. Furthermore, the Committee emphasised that although it was established that the Claimant had been absent on several occasions for a few days without authorisation, this fact alone did not suffice to justify the non-payment by the Respondent of three monthly salaries due to the Claimant. 16. Taking into account the circumstances of the present matter and, in particular, the fact that the Respondent had failed to pay the Claimant’s outstanding salaries at the time of his dismissal, the members of the Players’ Status Committee concluded that the Respondent did not have a just cause to terminate the employment contract between the parties on 23 May 2011. 17. In addition, for the sake of good order, the Players’ Status Committee referred to the allegation of the Respondent according to which the contract could be terminated within 12 months under the “country C National legislation” since the aforementioned period was allegedly “considered and agreed to be a probation period”. In this respect, the members of the Committee unanimously decided to reject this allegation as no such “probation period” had been agreed upon by the parties in the contract. 18. In view of all of the above, the Players’ Status Committee went on to analyse the consequences of the breach of the contract without just cause by the Respondent. In this respect and first of all, the Committee recalled that the amount of EUR 30,000 which represented the salary of the Claimant for the months of March, April and May 2011 was still outstanding and therefore due by the Respondent to the Claimant. 19. Furthermore, the Committee assessed the amount of compensation that the Claimant should receive from the Respondent as a result of the unlawful breach of the contract. While doing so, the Players’ Status Committee also took into account the attitude of the Claimant at the time of the dispute and, in particular, the fact that the latter had been absent on a number of occasions for a few days without authorisation. Taking into account the aforementioned mitigating circumstances as well as in view of the remaining value of the contract, the Committee held that a monetary compensation of EUR 55,000, which represented half of the remuneration provided under the contract for the 2011/2012 season, seemed an appropriate and reasonable compensation to be paid by the Respondent to the Claimant for the said breach. 20. Consequently, the Players’ Status Committee partially accepted the Claimant’s claim and decided that the Respondent has to pay to the Claimant the amount of EUR 30,000 as outstanding remuneration as well as the amount of EUR 55,000 as compensation for breach of contract. 21. In addition and for the sake of good order, the Committee held that the other claims of the Claimant are therefore rejected and underlined, in particular, that the amounts claimed by the Claimant as accommodation fees could not be granted as the contract did not specify the amount that the Claimant was supposed to receive from the Respondent in order to cover such fees. 22. Finally, the Players’ Status Committee 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, costs in the maximum amount of currency of country H 25,000 are levied. 23. Considering that the claim of the Claimant has been partially accepted, the Players’ Status Committee concluded that both parties have to bear the costs of the current proceedings before FIFA. 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. On that basis, the Players’ Status Committee held that the amount to be taken into consideration in the present proceedings is over currency of country H 200,000. Consequently, the Players’ Status Committee 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 and taking into account the high number of submissions sent by the parties, the Players’ Status Committee determined the costs of the current proceedings to the amount of currency of country H 20,000. Consequently, the Players’ Status Committee decided that the amount of currency of country H 13,000 has to be paid by the Claimant and the amount of currency of country H 7,000 by the Respondent in order to cover the costs of the present proceedings. III. Decision of the Players’ Status Committee 1. The claim of the Claimant, Coach S, is admissible. 2. The claim of the Claimant, Coach S, is partially accepted. 3. The Respondent, Club L, has to pay to the Claimant, Coach S, within 30 days as from the date of notification of this decision, the amount of EUR 30,000 as outstanding remuneration as well as the amount of EUR 55,000 as compensation for breach of contract. 4. If the aforementioned total amount of EUR 85,000 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 S, are rejected. 6. The Claimant, Coach S, is directed to inform the Respondent, Club L, immediately and directly of the account number to which the remittance is to be made and to notify the Players’ Status Committee of every payment received. 7. The final costs of the proceedings in the amount of currency of country H 20,000 are to be paid within 30 days as from the date of notification of the present decision as follows: 7.1 The amount of currency of country H 7,000 by the Respondent, Club L, to FIFA to the following bank account, with reference to case nr.: 7.2 The amount of currency of country H 13,000 by the Claimant, Coach S. Given that the latter has 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 S, has to pay the amount of currency of country H 8,000 to FIFA to the aforementioned bank account, with reference to case nr.: ***** 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 Players’ Status Committee: Markus Kattner Deputy Secretary General Encl. CAS Directives