F.I.F.A. – Commissione per lo Status dei Calciatori (2015-2016) – controversie allenatori – ———- F.I.F.A. – Players’ Status Committee (2015-2016) – coach disputes – official version by www.fifa.com – Decision of the Single Judge of the Players’ Status Committee passed in Zurich, Switzerland, on 26 August 2014, by Mr Geoff Thompson (England), Single Judge of the Players’ Status Committee, on the claim presented by the coach Coach W, from country B as “Claimant” against the club Club T, country C as “Respondent” regarding an employment-related contractual dispute arisen between the parties.

F.I.F.A. - Commissione per lo Status dei Calciatori (2015-2016) – controversie allenatori – ---------- F.I.F.A. - Players' Status Committee (2015-2016) – coach disputes – official version by www.fifa.com – Decision of the Single Judge of the Players’ Status Committee passed in Zurich, Switzerland, on 26 August 2014, by Mr Geoff Thompson (England), Single Judge of the Players’ Status Committee, on the claim presented by the coach Coach W, from country B as “Claimant” against the club Club T, country C as “Respondent” regarding an employment-related contractual dispute arisen between the parties. I. Facts of the case 1. On 1 May 2010, the coach from country B, Coach W (hereinafter: the Claimant) and the club from country C, Club T (hereinafter: the Respondent) signed an employment agreement valid for eight months, i.e. until 31 December 2010. 2. On 11 December 2010, the parties signed another employment contract (hereinafter: the contract), valid from 1 January 2011 until 31 December 2012, and according to which the coach was entitled to a monthly salary of EUR 7,500. 3. Article 8 of the contract stated, inter alia, that in case the coach would breach his obligations under the contract, the club “shall inflict punishment according to the natures and seriousness as regulated and meanwhile can determine fine within the range of 50% of Party’s B [i.e. the Claimant] salary”. 4. Article 9 of the contract provided, inter alia, that “The contract may be cancelled by Party A [i.e. the Respondent] with immediate effect: […] (3) If Party B [i.e. the Claimant] seriously violates regulations or match discipline of Party A. (4) If Party B seriously violates professional ethics or sports and cause serious damage to Party A’s interest and reputation”. 5. Article 11 of the contract provided that “Either party shall undertake the compensation or remedy to the other party according to losses and responsibilities caused by party’s breach of the contract and therefore causing economic losses to the party”. 6. Article 12 of the contract stipulated that “In case no settlement can be reached through consultation, the dispute shall be submitted to the Proceeding Commission of Football Association from country C […]. In case that Party B [i.e. the Claimant] is a foreign citizen, the proceeding can be submitted to FIFA and the award of FIFA is final and binding”. 7. Article 13 of the contract provided that “When the clauses of the contract are contradictory to the regulations of FIFA or the Football Association from country C, the latter prevails. When the clauses of the contract are contradictory to the state laws, regulations and policies, the latter shall prevail”. 8. On 30 March 2013, the Claimant lodged a claim with FIFA against the Respondent for breach of contract. In this respect, the Claimant explained that after the team drew in four consecutive matches, the last of these matches having been played on 11 June 2011, he had decided to take a “temporary stay – approved by the club – in country B due to a week of rest in the Competition where no matches were scheduled”. 9. The Claimant further explained that on 13 June 2011, “while temporarily staying in country B”, he had received an email from the Respondent which informed him as follows: “We have heard that your illness had become serious […]. Additionally, we are sorry to inform you a decision made by the club: The club decides to penalize you for your unproper behaviour in the games of the First League in country C, especially the one between Club T and Club S. And you can stay in country B until you receive the message that invite you back. During this time you can exam your unproper behaviour in these games as well as taking medical care. […]. Please stay in country B and wait for our invitation. If you want to come back to the team before the invitation, you should take all the responsibilities and pay for the flights and relevant fees”. 10. The Claimant alleged to have been surprised by the content of the email as he was not ill at all and the “unproper behaviour the Club was talking about was only a minor incident due to translation problems”. Furthermore, the Claimant alleged that he was soon after also informed that he had been checked out of his hotel room where he was residing in country C and that this clearly demonstrated that the Respondent had no intention to fulfil the contract any longer. 11. In addition, the Claimant argued that the Respondent had failed to pay his salary of March, April, May and June 2011, for a total amount of EUR 30,000 (i.e. 4 x EUR 7,500), and further claimed that the Respondent had appointed another head coach who was the Chairman’s cousin. 12. As a result, the Claimant claimed to have informed the Respondent in writing on 23 June 2011, via his legal representative, that “It is clear that by acting the way you do, you’re unilaterally and unlawfully broken the contract you’d concluded with my client [i.e. the coach]” and to have therefore requested an amount of EUR 135,000, representing the remaining value of the contract. The Claimant claimed to have not received any reply to his letter. 13. In view of the above, the Claimant requested from the Respondent the total amount of EUR 165,000, representing the amount of EUR 30,000 for the four alleged outstanding salaries for the months of March to June 2011 as well as the amount of EUR 135,000 as compensation for breach of contract (i.e. 18 months x EUR 7,500). 14. On 2 August 2013, the Respondent provided its answer and argued, first of all, that FIFA should not hear the present dispute as the Football Association from country C had an “Arbitration Commission” which guarantees fair proceedings. Furthermore, the Respondent also alleged that in view of article 13 of the contract, even if FIFA was the competent body in this dispute, the “Procedural Rules” of the Football Association from country C should prevail over the “FIFA Procedural Rules”. Consequently and in view of the fact that, “According to art 6, point 2 of the Football Association from country C Procedural Rules, the time limit for arbitration is one year”, the claim of the Claimant should be considered time-barred. 15. Furthermore, and as to the substance of the matter, the Respondent confirmed that it had terminated the contract with the Claimant already on 5 June 2011 as the latter “had seriously broken his obligations of the employment contract, as well as the provisions of FIFA’s regulations”, in particular, article 9 of the contract as well as provisions of the FIFA Code of Conduct and the FIFA Disciplinary Code. 16. In this respect, the Respondent alleged that the coach was sanctioned by the Football Association from country C for having apparently shouted on 8 May 2011 “to the para medics and Football Association from country C supervisor: You are ugly people from country C”. The Claimant was consequently given a three-match ban suspension and a fine by the Football Association from country C. 17. The Respondent further alleged that on 5 June 2011 the Claimant had received a “red card” as he had allegedly “insulted the main referee by using offensive, insulting and abusive language”. 18. Consequently, and due to the fact that the Claimant had caused serious damage to the Respondent’s interest and reputation, the latter claimed to have decided, on 5 June 2011, to “cancel the contract” and to have subsequently informed the Claimant about the content of said letter via email on 13 June 2011. 19. In addition and in respect to the salaries of March, April and May 2011, the Respondent alleged that they were duly paid on the 25th of each month. As for the salary due to the Claimant for the period from 1 to 5 June 2011, the Respondent explained that it had kept it “as a fine”, on the basis of article 8 of the contract. 20. In view of the above, the Respondent requested FIFA to dismiss the claim in its entirety. 21. In his replica dated 8 November 2013, the Claimant rejected the Respondent’s position that FIFA should not hear the present matter as article 12 of the contract “clearly contains a jurisdiction clause” and as the club had not been able to prove that the “Arbitration Commission” of the Football Association from country C met the requirements of FIFA. 22. Furthermore, the Claimant denied having ever received the letter dated 5 June 2011 from the Respondent and argued that he had led “all the trainings after the 5th of June and was even present at the match on the 11th of June [2011]”. The Claimant further argued that the letter of 5 June 2011 did not explicitly amount to a termination of his contract and that the email of 13 June 2011 only mentioned that, because of an alleged “illness”, he should stay in country B until further notice. 23. As to his alleged improper behaviour, the Claimant argued that he had already “made his apologies for any misunderstanding that could have occurred” and denied having ever insulted “the people from country C, nor officials of the Football Association from country C” and that “he was misunderstood when he wanted to inform the game supervisors about the chaos caused by the mishandling of the para medics of an injured player”. 24. In addition and in respect to the salaries for the months of March to May 2011, the Claimant argued that the documents provided by the club are “unilaterally made and are certainly not clearly assignable and therefore cannot be considered as sufficient evidence in order to corroborate the false allegations of the club of having fulfilled its contractual obligations towards Coach W”. Moreover, the Claimant alleged that there were no payment receipts or bank transaction receipts that proved any payment in the months of March to June 2011 and the fact that the Respondent “fulfilled its obligations towards the Tax office from country C, isn’t proof that the club paid Coach W”. 25. Finally, the Claimant claimed that he had never been informed about the fine in relation to his salary for the period from 1 to 5 June 2011. 26. Consequently, the Claimant reiterated his claim against the Respondent in the amount of EUR 165,000 as stated in his original claim. 27. In its final comments dated 12 December 2013, the Respondent reiterated all of its previous allegations and added that, based on the version from country C of article 12 of the contract, the parties should in fact have first referred the matter to the Football Association from country C “then be appealed to FIFA in case Coach W refuses the decisions of Football Association from country C”. Consequently, the Respondent maintained that the claim of the coach should be rejected for all of the abovementioned reasons. 28. In response to FIFA’s request whether he had been able to conclude any employment contract with any other club in the period between July 2011 and 31 December 2012, the Claimant confirmed that he had worked for the club from country A Club R as “U18 coach” from 15 July 2011 until 14 August 2012 for a “monthly salary of EUR 5,000 (14 times a year)”. II. Considerations of the Single Judge of the Players’ Status Committee 1. First of all, the Single Judge of the Players’ Status Committee (hereinafter: the Single Judge) analysed whether it was competent to deal with the case at hand. In this respect, the Chamber took note that the present matter was submitted to FIFA on 30 March 2013. Consequently, 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 (cf. art. 21 of the Procedural Rules). 2. Subsequently, the Single Judge referred to art. 3 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 Regulations on the Status and Transfer of Players (edition 2012) he shall adjudicate on employment-related disputes between a coach and a club or an association that have an international dimension. 3. As a consequence, the Single Judge would, in principle, be competent to decide on the present employment-related dispute which involves a coach from country B and a club from country C. 4. However, the Single Judge acknowledged that the Respondent had contested the competence of FIFA’s deciding bodies, arguing that the Football Association from country C had an “Arbitration Commission” which guarantees fair proceedings. Furthermore, the Respondent also alleged that in view of article 13 of the contract, even if FIFA was the competent body in this dispute, the “Procedural Rules” of the Football Association from country C should prevail over the “FIFA Procedural Rules”. Consequently and in view of the fact that, “According to art 6, point 2 of the Football Association from country C Procedural Rules, the time limit for arbitration is one year”, the claim of the Claimant should be considered time-barred. 5. In relation to the above, the Single Judge deemed it vital to outline that one of the basic conditions that needs to be met in order to establish that another organ than the Players’ Status Committee or its Single is competent to settle an employment-related dispute between a club and a coach of an international dimension, is that the jurisdiction of the relevant national court derives from a clear reference in the employment contract. 6. Therefore, while analysing whether it was competent to hear the present matter, the Single Judge considered that it should, first and foremost, analyse whether the employment contract at the basis of the present dispute contained a clear jurisdiction clause. 7. In this respect, the Single Judge recalled that Article 12 of the contract stipulated that “In case no settlement can be reached through consultation, the dispute shall be submitted to the Proceeding Commission of Football Association from country C […]. In case that Party B [i.e. the coach] is a foreign citizen, the proceeding can be submitted to FIFA and the award of FIFA is final and binding”. Thus, the Single Judge was keen to underline that specific provision had been made between the parties for a jurisdiction clause granting competence to FIFA’s deciding bodies in case the coach would be a foreign citizen, which is the case in the present matter. 8. Furthermore, the Single Judge emphasised that he could not accept the Respondent’s position that based on the version from country C of article 12 of the contract, the parties should in fact have first referred the matter to the Football Association from country C “then be appealed to FIFA in case Coach W refuses the decisions of Football Association from country C”, since the Respondent did not provide an official translation of the contract which would have allowed him to verify the allegations of the Respondent as to the interpretation of article 12 of the contract. Equally, another translation of the relevant clause would not be opposable to the Claimant, since he has in good faith signed the contract, which already provided the English translation of article 12 as quoted in point II.7 above. 9. The Single Judge therefore came to the conclusion that article 12 of the contract does not constitute an exclusive jurisdiction clause in favour of the Arbitration Commission of the Football Association from country C, but rather points towards the competence of FIFA in casu. 10. On account of all the above, the Single Judge established that the Respondent’s objection towards the competence of FIFA to deal with the present matter has to be rejected, and that he is competent, on the basis of art. 22 lit. c) of the Regulations on the Status and Transfer of Players, to consider the present matter as to the substance. 11. 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 confirmed that in accordance to art. 26 par. 1 and 2 of the 2014 edition of the Regulations on the Status and Transfer of Players and considering that the present claim was lodged with FIFA on 30 March 2013, the 2012 edition of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the present matter as to the substance. 12. His competence and the applicable regulations having been established, and entering into the substance of the matter, the Single Judge started by acknowledging the above-mentioned facts as well as the arguments and the documentation submitted by the parties. 13. In this regard, the Single Judge underlined that he first had to clarify who had put an end to the contract and if so, when did this occur. Indeed, it remains unclear whether either of the parties had formally proceeded to the termination of the contract. 14. The Claimant claims that he left country C on 11 June 2011 for a temporary stay in country B. Thereafter, on 13 June 2011, he received an email from the Respondent which stated the following: “We have heard that your illness had become serious […]. Additionally, we are sorry to inform you a decision made by the club: The club decides to penalize you for your unproper behaviour in the games of First League in country C, especially the one between Club T and Club S. And you can stay in country B until you receive the message that invite you back. During this time you can exam your unproper behaviour in these games as well as taking medical care. […]. Please stay in country B and wait for our invitation. If you want to come back to the team before the invitation, you should take all the responsibilities and pay for the flights and relevant fees”. 15. The Respondent, for its part, claims that the aforementioned email constituted a termination notice. In this regard, the Single Judge was of the opinion that although the wording of the said email did not per se point towards the definitive termination of the contract, nothing in its behaviour seemed to indicate otherwise. In particular, after having sent the email of 13 June 2011, the Respondent never called the Claimant back and did not contest that the latter was ultimately replaced by another coach. 16. In light of the above, the Single Judge came to the conclusion that the Respondent terminated the contract on 13 June 2011. 17. This having been established, the Single Judge went on to analyse whether said termination of the contract by the Respondent was with or without just cause. If he would find that the termination was without just cause, the Single Judge would have to determine the consequences thereof. 18. In this respect, the Single Judge recalled the arguments of the Respondent, according to which it had had a just cause to terminate the contract in view of the Claimant’s alleged improper behaviour towards paramedics and some officials of the Football Association from country C on 8 May 2011. Furthermore, on 5 June 2011, the Claimant had allegedly gotten a “red card” for insulting “the main referee by using offensive, insulting and abusive language”. 19. The Claimant, on the other hand, held that the first incident of 8 May 2011 was a misunderstanding due to language barriers and that he had “made his apologies for any misunderstanding that could have occurred”. Furthermore, the Claimant stated that he was unaware of a fine that would have been imposed on him following the incident of 5 June 2011. 20. At this stage, the Single Judge wished to recall the rule of the burden of proof provided for in art. 12 par. 3 of the Procedural Rules and according to which any party claiming a right on the basis of an alleged fact shall carry the burden of proof. In this context, the Single Judge pointed out that the Respondent had not corroborated its accusations against the Claimant with any evidence whatsoever. 21. Moreover, the Single Judge was eager to remark that the termination of the contract can, as a general rule, only be considered as an ultima ratio measure. Indeed, only a breach or misconduct which is of a certain severity justifies the termination of a contract without prior warning. In other words, only when there are objective criteria which do 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 in order for an employer to assure the employee’s fulfilment of his contractual duties, such measures must be taken before terminating an employment contract. 22. In view of the above, the Single Judge was of the opinion that the Respondent did not have just cause to prematurely terminate the employment contract with the Claimant, since there would have been more lenient measures to be taken in order to sanction the alleged misconduct, which is at the basis of the termination of the employment contract by the Respondent, and which in any case was not supported by any evidence. 23. In continuation, the Single Judge reverted to the Claimant’s claim that the Respondent had failed to pay his salary as from March until June 2011. In this regard, the Respondent had refuted such allegation and stated that the Claimant’s salary had duly been paid by the 25th of each month. In support of such allegation, the Respondent provided written declarations from its former accountant and clerk as well as tax invoices issued by the Tax Bureau that the Respondent had paid the individual income tax of last month for the Claimant’s salary in the following month. 24. In this regard, and with reference, once again to the rule of burden of proof, the Single held that the evidence provided by the Respondent in support of its allegations that it had duly paid the Claimant’s salary as from March until June 2011 was clearly insufficient. Indeed, the Single Judge could not take into account the written declarations from one of its own (former) members of staff as irrefutable evidence. Equally, the fact that, allegedly, the Respondent had proceeded to the payment of the income tax on behalf of the Claimant could not per se constitute convincing proof that the relevant salaries had been paid to the Claimant. 25. On account of the above, the Single Judge had no other alternative but to conclude that, on top of having proceeded to the unilateral termination of the contract, the Respondent had been in breach of contract at the time of said termination by having failed to pay the Claimant’s salary since March 2011. 26. Thus, overall, the Single Judge decided that there was no just cause to unilaterally terminate the employment relationship between the Claimant and the Respondent and that, therefore, the Respondent had breached the employment contract without just cause. 27. In continuation, the Single Judge analysed the consequences of the breach of contract without just cause by the Respondent. In this context and first of all, the Single Judge went on to assess whether any outstanding salaries were still due by the Respondent to the Claimant. 28. In this regard, the Single Judge underlined that the Claimant had requested from the Respondent the amount of EUR 30,000 representing four monthly salaries from March to June 2011. The Single Judge recalled that the Respondent had not provided convincing proof that the respective salaries had been paid to the Claimant. That being said, the Single Judge wished to underline that upon termination of the contract on 13 June 2011, the salary for June 2011 was not yet due; hence, this salary shall not be taken into account when assessing the amount of outstanding salaries. 29. In conclusion, and in accordance with the legal principle of pacta sunt servanda, according to which agreements must be duly complied with by parties acting in good faith, the Single Judge held that the Respondent must pay the Claimant the amount of EUR 22,500 (3x EUR 7,500) as outstanding salaries representing the salaries due in March, April and May 2011. 30. In continuation, the Single Judge established that the Respondent is also liable to pay compensation for breach of contract to the Claimant. In this context and in order to establish the amount of compensation, the Single Judge first verified that in casu the contract did not include a compensation clause. Therefore, the amount of compensation for breach must be established in accordance with other criteria. 31. In this regard, the Single Judge duly noted that between the termination of the contract in June 2011 and the original expiry of the contract in December 2012, the Claimant would have earned a total amount of EUR 142,500 (19x EUR 7,500) with the Respondent. Therefore, the Single Judge determined that the latter amount must serve as a basis for the calculation of the compensation. 32. In continuation, the Single Judge reasoned that in accordance with the principle of mitigation of the damage, he must take into account any earnings which the Claimant may have had in the same time frame, i.e. between June 2011 and December 2012. The Claimant indeed found new employment with the club from country A, Club R as “U18 coach” from 15 July 2011 until 14 August 2012 for a “monthly salary of EUR 5,000 (14 times a year)”. Thus, the Single Judge decided that he must deduct the total amount of EUR 70,000 (14x EUR 5,000). 33. In view of the above, the Single Judge decided that the Respondent must pay the amount of EUR 72,500 as compensation for breach of contract, which is deemed as a fair and reasonable amount. 34. The Single Judge concluded his deliberations by establishing that any further claims of the Claimant are rejected. 35. Lastly, the Single Judge referred to art. 25 par. 2 of the Regulations in combination with art. 18 par. 1 of the Procedural Rules, according to which in the proceedings before the Players’ Status Committee and the Single Judge, costs in the maximum amount of CHF 25,000 are levied. The costs are to be borne in consideration of the parties’ degree of success in the proceedings and are normally to be paid by the unsuccessful party. 36. In this respect, the Single Judge reiterated that the claim of the Claimant is partially accepted but that the Respondent is the party at fault. Therefore, the Single Judge decided that the Claimant and the Respondent shall both bear part of the costs of the current proceedings in front of FIFA. 37. 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 EUR 165,000, i.e. below CHF 200,000, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 20,000. 38. In conclusion and considering that the matter at hand did pose some legal or factual complexities, the Single Judge determined the costs of the current proceedings to the amount of CHF 20,000. 39. Consequently, the Respondent must pay the amount of CHF 15,000 and the Claimant the amount of CHF 5,000 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 W, is admissible. 2. The claim of the Claimant, Coach W, is partially accepted. 3. The Respondent, Club T, has to pay to the Claimant, Coach W, within 30 days as from the date of notification of this decision, the amount of EUR 22,500 as outstanding salary as well as the amount of EUR 72,500 as compensation for breach of contract. 4. If the aforementioned total amount of EUR 95,000 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 W, are rejected. 6. The Claimant, Coach W, is directed to inform the Respondent, Club T, immediately and directly of the account number to which the remittance under point 3 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 CHF 20,000 are to be paid as follows: 7.1 The amount of CHF 15,000 shall be paid by the Respondent, Club T, within 30 days as from the notification of the present decision, to the following bank account, with reference to case nr.: UBS Zurich Account number 366.677.01U (FIFA Players’ Status) Clearing number 230 IBAN: CH27 0023 0230 3666 7701U SWIFT: UBSWCHZH80A 7.2 The amount of CHF 5,000 shall be paid by the Claimant, Coach W. Given that the latter has already paid the amount of CHF 5,000 as advance of costs at the start of the present proceedings, no additional amount has to be paid by the Claimant, Coach W. ***** 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