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 5 June 2013, by Geoff Thompson (England) Single Judge of the Players’ Status Committee, on the claim presented by the coach Coach L, from country S as “Claimant” against the Country C Football Federation 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 the Single Judge of the Players’ Status Committee passed in Zurich, Switzerland, on 5 June 2013, by Geoff Thompson (England) Single Judge of the Players’ Status Committee, on the claim presented by the coach Coach L, from country S as “Claimant” against the Country C Football Federation as “Respondent” regarding a contractual dispute between the parties. I. Facts of the case 1. On 28 August 2010, Coach L, from country S (hereinafter: the Claimant), the country C Football Federation (hereinafter: the Respondent) and the Ministry for sport and physical education of country C (hereinafter: the Ministry) signed an employment contract (hereinafter: the contract), valid from the date of its signature until 28 August 2012, by means of which the Claimant was hired by the Minister for Sport and physical education, on the recommendation of the Respondent, as coach of the latter’s A national team (hereinafter: the national team). 2. According to the contract, the Claimant was inter alia entitled to receive, as salary, the total amount of EUR 1,870,000 to be paid by the Ministry as follows: EUR 467,000 by no later than 30 September 2010 and three further instalments of EUR 467,000 each, on 30 March 2011, 30 September 2011 and 30 March 2012 respectively. Furthermore, the contract specified that the Claimant’s salary included the remuneration of the physical trainer, to be paid by the Claimant. 3. According to art. 3 of the contract, the Claimant had to inter alia commit himself to the following obligations (translation from French to English):  assure the qualification of the national team in the final round of the African Cup of Nations 2012;  be present in country C at least ten days every two months in order to follow the national championship;  present a project of a program of activities and a schedule for the realisation of such program;  provide an account of the progress of his activities with the Respondent on a regular basis. 4. Art. 8 of the contract indicated that the contract may be terminated at any time by either of the parties in case of non-execution by the other party of its contractual obligations. In such case the party willing to terminate the contract should serve the other party a 30 days’ notice by registered mail, “without prejudice to any damages which could be claimed in front of FIFA”. 5. By correspondence dated 24 October 2011, the Ministry served a notice to the Claimant, referring to art. 8 of the contract and exempting him from any activity within the national team as of receipt of the said letter (hereinafter also: the termination letter). Inter alia, the Ministry accused the Claimant of not having assured the qualification of the national team in the final round of the African Cup of Nations 2012 and of not having been present in country C at least ten days every two months. Finally, the Ministry invited the Claimant to contact its competent body as well as the Respondent in order to settle his rights. 6. By correspondence dated 4 November 2011, the Respondent informed the Claimant that it had decided to terminate the contract concluded with the latter as well as the Ministry, in line with art. 8 of the contract, as of 9 December 2011, arguing that the latter, despite its warnings of 10 July and 3 October 2011, had breached the contract on several occasions (hereinafter also: the second termination letter). In this respect, the Respondent accused the Claimant of not having presented a project of a program of activities and a schedule for the realisation of such program; of not having provided an account of the progress of his activities; of not having been present in country C at least ten days every two months; of not having assured the supervision of the players in the sense that the Claimant called up players who were injured or had administrative issues and of not having assured the qualification of its national team at the final round of the African Cup of Nations. Furthermore, the Respondent informed the Claimant that he would receive his salary for the period between 9 November and 9 December 2011. 7. On 10 February 2012, the Claimant lodged a claim with FIFA against the Respondent for breach of contract. 8. In this respect and first of all, the Claimant alleged having only received from the Respondent the first two instalments due as per the contract, i.e. twice the amount of EUR 467,000, payable on 30 September 2010 and on 30 March 2011, respectively. 9. Furthermore, the Claimant explained having received the letter of the Respondent dated 4 November 2011 only after having requested the Respondent on three occasions, i.e. on 26, 31 October and 7 November 2011, to inter alia confirm whether their contractual relationship had been terminated as per the letter of the Ministry dated 24 October 2011. In addition, the Claimant alleged that, already on 26 October 2011, the Respondent had hired a new coach. 10. In continuation, the Claimant explained that, after having received the second termination letter, his legal representative had contested all allegations of breach of contract on 16 November 2011 and requested the Respondent to pay him his salaries of September and October 2011 as well as compensation in the amount of EUR 77,916.66 for not having complied with the 30 days’ notice as per art. 8 of the contract. Furthermore, the Claimant informed the Respondent that, in his opinion, their contractual relationship had already been terminated between 24 and 26 October 2011, i.e. between the issuance of the first termination letter and the hiring of a new coach by the Respondent. 11. In addition to the above, the Claimant stressed that although he had received a correspondence on 5 December 2011 from the Respondent in which the latter had acknowledged owing him the salaries of September, October and November 2011 amounting to the total sum of EUR 218,166.66, no payment was ever been made by the Respondent. In its correspondence dated 5 December 2011, the Respondent had stated the following: “taking into account, on the one hand, that the Ministry of Sports has only just informed the Ministry of Finance and, on the other hand, that the salaries payments are paid in monthly instalments, we ask you to accept a payment in three instalments [translation into English]”. 12. Subsequently, the Claimant denied all allegations of breach of contract mentioned in the letters of the Ministry and of the Respondent. In particular and with regard to the obligation of being in country C at least ten days every two months, the Claimant alleged having made several trips to country C and stressed that the Respondent had failed to provide him with the relevant plane tickets as soon as it had become impossible to organise more trainings on the territory. Finally, the Claimant stressed that the contract’s validity did not depend on the national team’s qualification to the final round of the African Cup of Nations. 13. On account of all the above and in case FIFA would consider that his contractual relationship with the Respondent had been terminated by means of the second termination letter, i.e. on 9 December 2011, the Claimant deemed being entitled to receive from the latter the following amounts:  EUR 257,125 as outstanding remuneration, corresponding to his salary between 1 September and 9 December 2011;  EUR 677,875 as compensation for breach of contract, corresponding to his remaining salary until the end of the contract;  EUR 77,916.66 as compensation for not having complied with the 30 days’ notice deadline included in the contract (according to the Claimant, he only received the second termination letter on 14 November 2011). 14. Subsidiarily, and in case FIFA would consider that his contractual relationship with the Respondent had been terminated by means of the first termination letter, i.e. on 24 October 2011, the Claimant requested from the latter the following amounts:  EUR 140,250 as outstanding remuneration, corresponding to his salary between 1 September and 24 October 2011,  EUR 794,750 as compensation for breach of contract, corresponding to his remaining salary until the end of the contract,  EUR 77,916.67 as compensation for not having complied with the 30 days’ notice deadline included in the contract. 15. Equally, the Claimant requested the payment of default interest on the aforementioned amounts as from the respective due dates. 16. Finally and by means of a subsequent correspondence to FIFA, the coach stressed once again that the Respondent had acknowledged owing him his salary on several occasions and provided FIFA with additional correspondence apparently received from the alleged legal representative of the Respondent on 14 February and 16 March 2012 respectively, in which the latter had proposed to settle the matter in an amicable way by paying the Claimant his outstanding salary for the months of September, October and November 2011 in instalments. In addition, the Claimant admitted having received from the Respondent, on 28 December 2011, the amount of EUR 77,835. 17. In its response dated 21 September 2012, the Respondent rejected the Claimant’s claim arguing that, in accordance with the contract, the latter’s salary had to be paid by the Ministry, and referred in this regard to the correspondence of its legal representative dated 5 December 2011 (cf. point I.11 above). 18. In addition, the Respondent alleged having had just cause to terminate the contract due to the Claimant’s continuous breach of contract. In this context, the Respondent inter alia accused the Claimant of not having assured the qualification of the national team in the final round of the African Cup of Nations, of not having presented a project of a program of activities as well as the respective schedule for the realization of said program which included his professional trips, of not having informed the Respondent about the progress of his activities, and of not having stayed in country C for ten days every two months, in violation of art. 3 of the contract. 19. In continuation, the Respondent stressed that before the second termination was issued, the Claimant had duly been warned of the breach of his contractual obligations. As to that, the Respondent referred to a letter dated 10 February 2011, by means of which it had accused the Claimant of having failed to present a project of a program of activities as well as the respective schedule for the realization of said program, which included his professional trips, of not having informed the Respondent about the progress of his activities, and of not having stayed in country C for ten days every two months, violating art. 3 of the contract. In the same correspondence, the Respondent had invited the Claimant to comply with his contractual obligations in the future or it would have to terminate the contract in accordance with art. 8 of the contract. 20. Furthermore, the Respondent stressed that it had proceeded to the termination of the contract by letter dated 4 November 2011, sent to the coach by DHL on 9 November 2011, and that such letter specified that the termination would take effect as of 9 December 2011, i.e. within the 30 days’ notice’s deadline as per art. 8 of the contract. Besides, the Respondent pointed out that the Claimant had failed to provide any evidence as to the damages allegedly incurred as a consequence of the contract’s termination and alleged that the latter had concluded an employment contract with Club G, from country S (hereinafter: Club G), in February 2012. 21. On account of all the above, the Respondent deemed that no compensation was payable to the Claimant. 22. Asked about his labour situation during the period between October 2011 and the end of August 2012, the Claimant informed FIFA that he had signed an employment contract with Club G on 14 February 2012, valid until 30 June 2012. Furthermore, the Claimant specified having received from Club G the total amount of EUR 300,000 and stressed that he had not been entitled to receive any bonus from the latter club. In accordance with the relevant employment contract provided by the Claimant, the latter was entitled to receive from Club G EUR 100,000 as signing on fee in July 2012 as well as a monthly payment of EUR 40,000. In addition, the Claimant was entitled to receive, as bonus, EUR 300,000 in case Club G stayed in the 1st division during the 2011/2012 season. 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, he referred to art. 21 par. 2 and 3 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (editions 2008 and 2012). Consequently, and since the present matter was submitted to FIFA on 10 February 2012, 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. 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 2012 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 a country S coach and the country C Football Federation 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 2010 and 2012 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 10 February 2012. In view of the foregoing, the Single Judge concluded that the 2010 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 matter, the Single Judge started his analysis by acknowledging the facts of the case and the arguments of the parties as well as the documents contained in the file. 5. In doing so and first of all, the Single Judge noted that the Claimant, the Respondent and the Ministry for sport and physical education of country C (hereinafter: the Ministry) had concluded an employment contract which was originally valid from 28 August 2010 until 28 August 2012, by means of which the Claimant was hired by the Ministry as coach of the Respondent’s A nationalteam and was entitled to receive, as remuneration, the total amount of USD 1,870,000 to be paid by the Ministry. Furthermore, the Single Judge acknowledged that in accordance with art. 8 of the contract, either of the party could terminate its contractual relationship with the other(s) observing a 30 days’ notice. 6. In continuation, the Single Judge remarked that, by correspondence dated 24 October 2011, the Ministry had issued a letter of termination addressed to the Claimant, accusing the latter of several breaches of contract. Besides, the Single Judge observed that, similarly, on 4 November 2011, the Respondent had terminated the contract holding the Claimant responsible for having breached the contract on various occasions. In addition, the Single Judge acknowledged that, in his claim to FIFA, the Claimant had rejected all allegations regarding the alleged breaches of his contractual obligations as put forward both by the Ministry and the Respondent. Likewise, the Single Judge noted that, at the same time, the Claimant had accused the Respondent of having failed to pay part of his salary as per the contract and of having terminated their contractual relationship without just cause. In addition, the Single Judge took note that, as a result, the Claimant had requested from the Respondent the payment of outstanding remuneration as well as compensation for breach of contract. Finally and in the same context, the Single Judge noticed that, for its part, the Respondent had rejected the claim of the Claimant and insisted on having terminated the contract with just cause following the latter’s repeated misbehaviours, while pointing out that the Claimant’s salary was supposed to be paid by the Ministry. 7. In view of the above, the Single Judge reasoned that the main question to be addressed in the present matter was whether the Respondent had just cause to terminate the contract entered into with the Respondent or not. 8. In this regard and to begin with, the Single Judge referred to the allegations included in the second termination letter as well as to those formulated by the Respondent in its statement to FIFA, and stressed that, as a general rule, only a breach or misconduct which is of a certain severity justifies the termination of an employment contract. In other words, only when criteria substantial breach is committed by a party which does not reasonably permit to expect a continuation of the employment relationship between the parties, a contract may be terminated prematurely. Hence, if there are more lenient measures which can be taken against the employee, such measures must be taken before terminating an employment contract. A premature termination of an employment contract only constitutes an ultima ratio decision. 9. Taking into account the above the Single Judge reverted to the various allegations of breach of contract made by the Respondent against the Claimant, i.e. to the Claimant’s alleged repeated absence from country C as well as to the fact that the Claimant would have failed to present a project of a program of activities and failed to provide information as to the progress of his activities. In this regard the Single Judge underlined that no evidence had been provided by the Claimant indicating that he had regularly stayed in country C at least 10 days every two months as required in the contract, nor that he had presented a project of a program of activities and general information about the progress of his activities. 10. In addition, the Single Judge recalled that the Claimant had not contested having been warned by the Respondent on at least three occasions, i.e. on 10 February, 10 July and 3 October 2011 (cf. points I.6 and 19 above), that, in order to fulfil his contractual obligations, he had to be in country C at least 10 days every two months, as well as to provide the necessary update regarding his activities and projects. 11. In view of the aforementioned, the Single Judge concluded that the Claimant had not discharged his burden of proof while contesting the allegations made against him by the Respondent that he had in fact been present on the territory of country C at least 10 days every two months or that he had presented the Respondent with the required information regarding the progress of his activities, as provided for in art. 3 of the contract. Therefore, it had to be assumed that the Claimant had indeed committed the aforementioned contractual violations without any justification. 12. In this regard, the Single Judge reasoned that such violations of the contractual terms constitute a serious offence in light of the Claimant’s functions as Head Coach of the A national team of the Respondent. 13. Notwithstanding the above and with regard to the Respondent’s allegations that the Claimant would have breached the contract by not leading its national team to the final round of the African Cup of Nations, the Single Judge was eager to emphasize that, in line with his well-established jurisprudence, the absence of sporting results of a team cannot, as a general rule, constitute a valid reason for a club or an association to terminate a coach’s employment, even if there is a specific clause in the contract. Therefore, such an allegation has to be considered as inadmissible grounds for a termination of the employment relationship. 14. Having established the aforementioned and turning his attention to the Claimant’s assertion that the termination letter would not have been issued within the 30 days deadline required in art. 8 of the contract, the Single Judge recalled that the document in question was dated 4 November 2011, indicating a termination of the contract with effect as of 9 December 2011. Thus the Single Judge determined that the second termination had indeed been issued by the Respondent within the 30 days’ notice stipulated in the contract. 15. In addition and as to the Claimant’s insinuation that the contract would have already been terminated at the end of October 2011, the Single Judge recalled once again that the second termination letter was dated 4 November 2011 and that the first termination letter was only signed by the Ministry. 16. Bearing the aforementioned consideration in mind, the Single Judge also recalled that, when the second termination letter was issued, part of the Claimant’s salary, i.e. his remuneration for September and October 2011, had undisputedly been outstanding. Nevertheless, the Single Judge also kept in mind that, until at least the end of October 2011, the Claimant had apparently not put the Respondent in default of payment of these amounts. 17. Considering all the aforementioned, the Single Judge reasoned that, on the one hand, the Claimant had breached the contract by not being present in country C 10 days every two weeks in the course of at least eight months and failing to report on the progress of his activities, and, on the other hand, that he had not received his salary during two months. In this respect, the Single Judge emphasized that although it is established the Claimant had not received his salary for the months of September and October 2011, this must be balanced with the fact that he had himself acted in violation of his contractual obligations over a substantial period of time, and that he had been put in default on several occasions by the Respondent in order for him to start complying with his contractual obligations. In addition, the Single Judge emphasized once again that the Claimant had not requested the payment of the remuneration in question until after having received the termination letter issued by the Ministry. 18. In view of the above, the Single Judge deemed that the breach of contract committed by the Claimant, having lasted for a substantial period of time and having been pointed out by the Respondent repeatedly, clearly outweighed the Claimant’s failure to receive two months of his salary. 19. Consequently, the Single Judge came to the conclusion that the Respondent had had just cause to terminate the contract. 20. Therefore, the Single Judge ruled that the claim of the Claimant for compensation for breach of contract against the Respondent had to be rejected. 21. After having deliberated on the Claimant’s claim for compensation, the Single Judge went on to consider the latter’s request for payment of outstanding remuneration. In doing so and first of all, the Single Judge recalled that in accordance with the contract, the salary due to the latter was payable by the Ministry and not by the Respondent. Therefore, the Single Judge established that the Claimant’s claim against the Respondent related to the payment of outstanding remuneration also had to be rejected since it cannot be claimed against the Respondent. 22. In view of the all the above, the Single Judge decided that the claim of the Claimant is rejected. 23. 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 currency of country H 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. 24. In this respect, the Single Judge reiterated that the claim of the Claimant is rejected. Therefore, the Single Judge decided that the Claimant has to bear the entire costs of the current proceedings in front of FIFA. 25. 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 is above currency of country H 200,001, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to currency of country H 25,000. 26. In conclusion and in view of the numerous submissions that had to be analysed in the present matter as well as considering that a number of factual complexities had to be addressed 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 currency of country H 12,000. 27. Consequently, the amount of currency of country H 12,000 has to be paid by the Claimant 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 L, is rejected. 2. The final costs of the proceedings in the amount of currency of country H 12,000 are to be paid by the Claimant, Coach L. Considering that the Claimant, Coach L, already paid the amount of currency of country H 5,000 as advance of costs, the latter has to pay the remaining amount of currency of country H 7,000 within 30 days as from the date of notification of the present decision to the following 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 Single Judge of the Players’ Status Committee Markus Kattner Deputy Secretary General Encl. CAS directives