F.I.F.A. – Commissione per lo Status dei Calciatori (2013-2014) – controversie allenatori – ———- F.I.F.A. – Players’ Status Committee (2013-2014) – coach disputes – official version by www.fifa.com – Decision of the Single Judge of the Players’ Status Committee passed in Zurich, Switzerland, on 28 August 2013, by Geoff Thompson (England) Single Judge of the Players’ Status Committee, on the claim presented by the coach Coach A, from country Z as “Claimant” against the club Club U, from country H as “Respondent” regarding a contractual dispute arisen between the parties

F.I.F.A. - Commissione per lo Status dei Calciatori (2013-2014) – controversie allenatori – ---------- F.I.F.A. - Players' Status Committee (2013-2014) – coach disputes – official version by www.fifa.com – Decision of the Single Judge of the Players’ Status Committee passed in Zurich, Switzerland, on 28 August 2013, by Geoff Thompson (England) Single Judge of the Players’ Status Committee, on the claim presented by the coach Coach A, from country Z as “Claimant” against the club Club U, from country H as “Respondent” regarding a contractual dispute arisen between the parties. I. Facts of the case 1. On 1 July 2012, the coach A from country Z (hereinafter: the Claimant) and the Club U from country H (hereinafter: the Respondent) concluded an employment contract (hereinafter: the contract), valid from 1 July 2012 until the end of the 2012/2013 football season and according to which the Respondent engaged the Claimant as the assistant coach of its football team. 2. Article Four of the contract provided that “The first party [i.e. the Respondent] is to provide the second party [i.e. the Claimant] a net total monthly salary of $13,460 USD, of which an upfront payment as a Contract Success gesture of $41,600 USD will be deducted and provided to the second party [i.e. the Claimant] upon the signing and effectiveness of this contract. There for the second party is to receive a $10,000 USD net salary due at the end of each calendar month during the term of this contract”. 3. On 19 January 2013, the Claimant lodged a claim in front of FIFA against the Respondent, arguing that the latter had unilaterally and without just cause breached the contract although he had “fully performed his contractual obligations under the contract”. 4. In this respect, the Claimant claimed that he was dismissed by the Respondent on 15 December 2012 since the latter “throughout its official webpage, informed that the board of directors had decided to terminate the Contract and that Mr. S would be appointed as the new head coach of the team”. In support of his allegations, the coach provided press releases dated 15, 16 and 17 December 2012 apparently confirming his dismissal. 5. Furthermore, the Claimant explained that he had “tried to reach an amicable agreement with the club” and alleged that “during the previous days before the unilateral termination of the Contract by the Club, the Club negotiated with the Coach the amounts that the Club would pay him” and that the “Club guaranteed the Coach that formal documents would be drafted in the following days and before the Coach left the country for his Christmas holidays the termination contract would be signed by all parties”. 6. In this context, the Claimant added that he had made several attempts to contact the Respondent but the latter had failed to draft the aforementioned termination contract, and therefore had “decided to file a complaint before the police” on 18 December 2012 and “in the end he has been forced to file this claim”. 7. Furthermore, the Claimant deemed that the Respondent had also failed to pay him the outstanding salary corresponding to the month of November 2012 and the first half of December 2012. 8. Consequently, the Claimant claimed that the Respondent should therefore compensate him for the alleged breach as well as for the outstanding salary and requested from the latter the total amount of USD 103,000, plus “applicable interest pursuant to Swiss laws” as well as legal costs. 9. On 8 March 2013, the Respondent presented its response to the Claimant’s claim. In this respect, the Respondent admitted that “the monthly salary of November and half of the monthly salary of December 2012” were not paid but also stated that the “upfront payment” of USD 41,600 in accordance with Article Four of the contract was fully paid and therefore “USD 3,460 per month shall be deducted from the monthly salary” of the Claimant. 10. In continuation, the Respondent argued that it “DID NOT appoint new head coach or head coach assistant to train the First Football Team because the Club is committed to the contracts signed with the two complainers [i.e. the Claimant and his head coach]” and that it had made many attempts to persuade the Claimant not to terminate the contract. 11. Concerning the press releases provided by the Claimant, the Respondent argued that it “DOES NOT have an official website. All that was published on Mr. L web page represent his own personal view which has nothing to do with any decisions issued from the Club’s Board”. The Respondent further alleged that the Claimant had not submitted any evidence to prove his claim and that the provided press releases were “collected from non-official and non-recognized websites”. 12. Furthermore, the Respondent argued that while it “has executed all its obligations under the contracts”, the coach “DID NOT perform the tasks entrusted to him under the third, fourth and fifth articles of the contract signed with the Club. This is considered as a clear breach from his side to the professional obligations imposed by the contract”. 13. Moreover, the Respondent was of the opinion that the Claimant should not have reported them to the police as this would violate the “FIFA regulations” since “according to such regulations, it is prohibited for either parties to resort to the courts of justice”. 14. Consequently the Respondent deemed that the Claimant had himself breached the contract. 15. On 2 April 2013, the Claimant presented his comments to the Respondent’s response and reiterated his previous statements. In this respect, the Claimant insisted that it had been demonstrated that the Respondent had unilaterally and without just cause terminated the contract. 16. Furthermore, and in response to the allegations of the Respondent that it was him who had stopped fulfilling his contractual obligations, the Claimant stated that no evidence had been provided by the Respondent in support of these allegations. Moreover, the Claimant explained that on 25 November 2012 the Respondent had provided him with a document, “in order to terminate the contract mutually but the coach did not accept said termination document”. In this respect, the Claimant stated that said document also stipulated that the Respondent “values its relationship with Mr. A, and is keen on maintaining their professional relationship for the years to come. The Club is interested to offer Mr. A a similar agreement for 2013-2014, if both parties accordingly agree”. 17. On account of the above, the Claimant argued that “it does not have much sense that if the Club was so disappointed with the Coach they offered him a renewal for the next season” and added that “if the Coach supposedly had abandoned the team, why didn’t the Club formally requested the Coach to fulfil his contractual obligations derived from the Contract?”. 18. In addition, the Claimant argued that “the letter published by Mr. L cannot just be a personal opinion when said person has been or is actually a member of the Board of Directors of the Club”. 19. Finally, the Claimant reiterated that the Respondent should be condemned to pay him the amount of USD 103,000. 20. On 16 May 2013, the Respondent reacted to the Claimant’s last submission and reiterated its previous statements, emphasising, in particular, that it does not have an official website. The Respondent provided a letter issued by the Ministry of Youth and Sports, which confirms such statement. With regard to the press releases submitted by the Claimant, the Respondent stated that “Such news cannot, in any way, be considered as legal evidence to condemn, or even relieve, the Club”. 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 simply referred to as: the Single Judge) analysed whether he was competent to deal with the case at hand. In this respect, the Single Judge confirmed that, on the basis of art. 3 par. 1 of the 2012 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber in connection with art. 23 par. 1 and 3 as well as art. 22 lit. c) of the 2012 edition of the Regulations on the Status and Transfer of Players, he was competent to deal with the matter at stake which concerns an employment-related dispute with an international dimension between a coach A and a club affiliated to the Football Association of country H. 2. Furthermore, the Single Judge analysed which Procedural Rules are applicable to the matter at hand. In this respect, he referred to art. 21 par. 2 and 3 of the 2012 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber. Consequently, and since the present matter was submitted to FIFA on 19 January 2013, thus after the aforementioned rules entered into force (1 December 2012), the Single Judge concluded that the 2012 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. 3. 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, on the one hand, to art. 26 par. 1 and 2 of the 2012 edition of the Regulations on the Status and Transfer of Players, and on the other hand, to the fact that the present claim was lodged in front of FIFA on 19 January 2013. In view of the foregoing, the Single Judge concluded that the 2012 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. 4. His competence and the applicable regulations having been established, and entering into the substance of the present matter, the Single Judge started by acknowledging the above-mentioned facts as well as the arguments and the documentation submitted by the parties throughout the proceedings. 5. In doing so and first of all, the Single Judge noted that, on 1 July 2012, the Claimant and the Respondent had concluded an employment contract (hereinafter: the contract) which was valid from the date of its signature until the end of the 2012/2013 football season and which provided for the Claimant “to receive a $10,000 USD net salary due at the end of each calendar month” as well as an “upfront payment” of USD 41,600. 6. In continuation, the Single Judge acknowledged that, in his claim to FIFA, the Claimant had inter alia accused the Respondent of having prematurely terminated their contractual relationship without just cause on 15 December 2012 and had consequently requested from the latter, as compensation, the payment of his outstanding remuneration in accordance with the contract. Furthermore and in the same context, the Single Judge observed that, for its part, the Respondent had denied having terminated the contract and had insisted that it had been the Claimant who, by not performing the tasks entrusted to him under the contract, had breached their contractual relationship. Consequently, the Respondent deemed that the Claimant was the one who should be condemned to pay compensation. 7. In addition, the Single Judge recalled that no termination agreement was ever concluded between the parties to the dispute but that the Respondent seemed to have drafted a termination agreement in order to prematurely bring an end to their contractual relationship. 8. In light of the above, the Single Judge deemed that the first question to be addressed in the present matter was whether the agreement had been terminated by the Claimant or by the Respondent and whether such termination had occurred with or without just cause. 9. Based on the above, the Single Judge went on to consider the documentary evidence that the parties had submitted in support of their allegations. 10. As to that, the Single Judge observed that the Claimant had provided FIFA with several press releases confirming that he had been dismissed by the Respondent on 15 December 2012 while the latter had simply contested the Claimant’s allegations, arguing that the press releases provided by the Claimant cannot be taken into account since they had been “collected from non-official and non-recognized websites”. 11. In this context, the Single Judge deemed that it was undisputed by the parties that some of the press articles provided by the Claimant had been published on MR. L website who appeared to be a member of the Respondent’s board at the time, a fact that had never been questioned by any of the parties involved. Therefore, the Single Judge deemed appropriate to conclude that the information published on the website of a member of the Respondent’s board could therefore be taken into account. 12. Furthermore, the Single Judge acknowledged that shortly before the alleged unilateral termination of the contract, i.e. on 25 November 2012, the Respondent had sent a proposal to the Claimant in order to terminate their contractual relationship. Consequently, the Single Judge deemed that, by acting in this way, the Respondent had clearly demonstrated its intention to terminate the contract. 13. Based on the aforementioned and taking into account the fact that the Claimant’s dismissal had been published on the internet, the Single Judge came to the conclusion that the contract had been terminated by the Respondent. 14. In view of all of the above, the Single Judge formed the view that, although the Respondent might not have had an official website, the documentary evidence contained in the file clearly demonstrated that the contract had been terminated by the Respondent. 15. In continuation, the Single Judge referred to the question if the unilateral termination of the contract by the Respondent had been with or without just cause. 16. Before doing so, the Single Judge was keen to recall the content of article 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 Single Judge of the Players’ Status Committee. 17. The Single Judge then reverted to the allegations of the Respondent according to which the contract was breached by the Claimant since the latter “DID NOT perform the tasks entrusted to him under the third, fourth and fifth articles of the contract signed with the Club” and that “This is considered as a clear breach from his side to the professional obligations imposed by the contract”. 18. 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 the Respondent had failed to demonstrate that the Claimant had committed “a clear breach from his side to the professional obligations imposed by the contract”. 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. 19. In light of the above, the Single Judge held that the Respondent had not been able to successfully demonstrate pursuant to article 12 par. 3 of the Procedural Rules that the Claimant had failed to perform his obligations under the contract. 20. As a consequence, and taking into account the above-mentioned considerations as well as the documentation at his disposal and considering, in particular, that the Respondent had never provided any evidence that could have justified its decision to dismiss the Claimant, and also bearing in mind that the possibility of a premature termination of the contract had not been contractually foreseen, the Single Judge concluded that the unilateral termination of the contractual relationship between the parties by the Respondent on 15 December 2012 had been without just cause. Therefore, the Single Judge held that the Respondent had breached its contractual obligations and should, as a consequence, compensate the Claimant accordingly. 21. Bearing in mind the foregoing, the Single Judge proceeded to the calculation of the compensation and turned his attention to the submissions made by the Claimant and the Respondent and, in particular, noted that the Claimant was claiming from the Respondent the amount of USD 103,000 including compensation and outstanding salaries and that the Respondent had alleged that the “upfront payment” in the amount of USD 41,600 according to Article Four of the contract, had been paid to the Claimant. Furthermore, the Single Judge took into account that the Claimant had, at no point during the proceedings, denied having received the abovementioned amount of USD 41,600 from the Respondent. 22. Furthermore, the Single Judge recalled that according to the Claimant’s submission the 2012/2013 football season ended on 30 June 2013 and that such a fact had never been questioned by any of the parties during the course of the present proceedings. 23. On that basis, the Single Judge underlined that it was not clear how exactly the claimed amount of USD 103,000 was calculated by the Claimant but took note that the Claimant’s intention must have been to request inter alia the payment of his monthly salary until the end of his contractual relationship with the Respondent, i.e. until the end of June 2013. Furthermore, the Single Judge held that it was undisputed by the parties that the “upfront payment” in the amount of USD 41,600 had been paid to the Claimant and that therefore according to Article Four of the contract the monthly salary corresponded to USD 10,000. 24. Having established the above-mentioned, and while assessing the potential financial consequences of such a breach, the Single Judge considered that, as a result of the premature termination of his contractual relationship with the Respondent, the Claimant had found himself unexpectedly without any employment until at least the end of June 2013 and therefore concluded that the financial loss which the Claimant had suffered had lasted at least until that date. 25. In view of the above and in accordance with the general principle of pacta sunt servanda, which in essence means that agreements must be respected by the parties in good faith, the Single Judge decided that the Respondent must fulfil the obligation it voluntarily entered into with the Claimant by means of the contract signed between the parties, and therefore, the Respondent must pay to the Claimant the residual value agreed upon the contract. 26. In view of the aforementioned, the Single Judge established that the residual value of the contract corresponded to seven monthly salaries covering the period from December 2012 until June 2013 and therefore amounted to USD 70,000, i.e. USD 10,000 x 7 months. 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. 27. Hence, and additionally taking into consideration that the Claimant had been dismissed on 15 December 2012, the Single Judge decided that in casu the residual value of the contract (i.e. USD 70,000), constituted a reasonable and justified amount of compensation for breach of contract. 28. Consequently, the Single Judge decided that the Claimant was entitled to receive from the Respondent the remaining amount due in accordance with the contract, i.e. the sum of USD 70,000, corresponding to his salary between December 2012 and June 2013 (i.e. USD 10,000 x 7 months), as compensation for breach of contract. 29. 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 payment of his alleged outstanding salary. 30. In this respect, the Single Judge, first and foremost noted that according to the contract concluded between the parties, the Claimant was inter alia entitled to receive from the Respondent a monthly salary of USD 10,000, payable at the end of the month. Furthermore, the Single Judge remarked that, according to the submissions of the Claimant, the Respondent had failed to pay the salary corresponding to the month of November 2012 and that such a fact had not been questioned by the Respondent. As to that, the Single Judge was keen to underline that the Respondent in its response to the Claimant’s claim admitted that “the monthly salary of November and half of the monthly salary of December 2012” had not been paid. 31. In view of all of the above, bearing in mind the statements of the parties and, in particular, considering that the Respondent had even confirmed not having paid the salary due on 30 November 2012, the Single Judge concluded that the Claimant is entitled to receive from the Respondent the amount of USD 10,000 as outstanding salary. 32. Additionally and with respect to the claimed default “interest pursuant to Swiss laws”, the Single Judge recalled that no interest seemed to have contractually been agreed between the parties. Therefore and also taking into account the Claimant’s request in this regard, the Single Judge decided, in accordance with the long standing and well-established jurisprudence of the Players’ Status Committee concerning the payment of interest, that the Claimant should receive from the Respondent an interest rate of 5% per year as from the day after the due date of each amount due. As a result, the Single Judge concluded that the Respondent has to pay to the Claimant 5% interest as follows: - on USD 10,000 as from 1 December 2012; - on USD 70,000 as from 28 August 2013 i.e. the date of the decision. 33. In view of all of the above, the Single Judge concluded that the Claimant’s claim against the Respondent is partially accepted and that, consequently, the Respondent has to pay to the Claimant the total amount of USD 80,000 (i.e. USD 70,000 as compensation for breach of contract and USD 10,000 as outstanding salary), together with an interest at a rate of 5% per year on the respective amounts as established above. 34. The Single Judge concluded his deliberations by establishing that any further claims lodged by the Claimant are rejected. 35. 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 CHF 25,000 are levied. The relevant provision further states that 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. 36. In respect of the above and taking into account that the responsibility of the breach of contract can entirely be attributed to the Respondent and that the claim of the Claimant has been almost fully accepted, the Single Judge concluded that the Respondent has 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 Single Judge held that the amount to be taken into consideration in the present proceedings is USD 103,000. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 10,000. 37. In conclusion, in view of the circumstances of the present matter and taking into account that the matter did not pose any particular factual difficulty, the Single Judge determined the costs of the current proceedings to the amount of CHF 3,000. Consequently and since the claim has been almost fully accepted, the Single Judge decided that said amount 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, coach A, is partially accepted. 2. The Respondent, Club A, has to pay to the Claimant, coach A, the amount of USD 10,000 as outstanding salary as well as the amount of USD 70,000 as compensation for breach of contract, within 30 days as from the date of notification of this decision. 3. Within the same time limit, the Respondent, Club U, has to pay to the Claimant, coach A, default interest at a rate of 5% per year on the following partial amounts, as follows: - On USD 10,000 from 1 December 2012 until the effective date of payment; - On USD 70,000 from 28 August 2013 until the effective date of payment. 4. Any further claims lodged by the Claimant, coach A, are rejected. 5. If the aforementioned amounts of USD 10,000 and USD 70,000, plus interest as established above, are not paid within the aforementioned deadline, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision. 6. The final costs of the proceedings in the amount of CHF 3,000 are to be paid by the Respondent, Club U, within 30 days as from the date of notification of this decision, as follows: 6.1 The amount of CHF 1,000 has to be paid to FIFA to the following bank account with reference to case nr. xxxxxxxx: 6.2 The amount of CHF 2,000 has to be paid directly to the Claimant, coach A. 7. The Claimant, coach A, is directed to inform the Respondent, Club U, immediately and directly of the account number to which the remittance under points 2, 3 and 6.2 above is to be made and to notify the Players’ Status Committee of every payment received. ***** 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