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 11 August 2015, by Geoff Thompson (England) Single Judge of the Players’ Status Committee, on the claim presented by the coach Coach A, country B as “Claimant” against the Academy C as “Respondent” regarding a contractual dispute between the parties. I.
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 11 August 2015, by Geoff Thompson (England) Single Judge of the Players’ Status Committee, on the claim presented by the coach Coach A, country B as “Claimant” against the Academy C as “Respondent” regarding a contractual dispute between the parties. I. Facts of the case 1. On 15 January 2013, the Coach A from country B (hereinafter: the Claimant) and Academy C (hereinafter: the Respondent) concluded an employment contract (hereinafter: the contract), valid from 15 January 2013 until 14 January 2015, by means of which the Claimant was hired as “Technical Director” by the Respondent and was entitled to receive from the latter a monthly gross salary of EUR 14,568.02 between 15 January 2013 and 14 January 2014, and of EUR 17,234.69 between 15 January 2014 and 14 January 2015. The salary of the Claimant was payable on the last day of each month. 2. As mentioned in the contract, the Claimant had to inter alia: - “train and diligently prepare the players and arrange for the team’s line-up for each game and to take on the tasks of a coach at and during games”; - “mentor and lead all players and to supervise support staff”; - “define and draw up programmes for trainings, including preparatory and friendly games”; - “participate in decisions regarding disciplinary measures against players and support staff”. 3. The contract could be “terminated with effect as of 14th day of October 2013 by both the Club [i.e. the Respondent] and the Employee [i.e. the Claimant] by written notice at any time subject to observing a notice period of three months. If neither the Club nor the Employee terminates the agreement by 14th day of October 2013, the agreement terminates automatically on the 14th day of January 2015” (cf. art. 2 b) of the contract). 4. In addition, the Respondent could terminate the contract “immediately and without liability for compensation or damages” if the Claimant “commits any serious or persistent breach of these provisions or is guilty of any grave misconduct or wilful neglect in the discharge of his duties (..).” In particular, the Respondent could terminate the contract if the Claimant failed “to comply with any express or implied obligations under this agreement [i.e. the contract] or any agreement supplemental to it”; failed or ceased to “perform his duties under this agreement to the Club’s reasonable satisfaction”; committed “any grave misconduct or wilful neglect in the discharge of his duties under this agreement”; “in the opinion of the club [he] is not achieving satisfactory results in carrying out his duties as a Soccer Coach”; committed “any act which brings the Club into disrepute or which in the Club’s opinion is prejudicial or in conflict with its interests”. 5. Finally, art. 14 c) of the contract specified that: “a notice shall be deemed to have been served: (i) if it was served in person, at the time of service, or (ii) if it was served by post at the time of service, or (iii) if it was served by telefax or facsimile transmission, at the time of transmission”. 6. By means of a correspondence dated 3 July 2013 (hereinafter: the termination letter), the Respondent terminated its contractual relationship with the Claimant “according to clause 2a) of your employment contract [i.e. the contract] with effect as of 20.10.2013”. 7. On 20 September 2013, the Claimant lodged a claim with FIFA against the Respondent for breach of contract and requested from the latter the payment of EUR 268,851.54, plus “due legal interest” as from 4 September 2013. In addition, the Claimant requested the payment of EUR 10,000 as extrajudicial costs and asked FIFA to submit the file to the Disciplinary Committee in order for disciplinary proceedings to be opened against the Respondent. 8. With regard to the facts of the case, the Claimant alleged having started to work for the Respondent as “Technical Director” in January 2011, whereas, later on, the parties had decided to extend their contractual relationship for two more years. According to the Claimant, although it had been agreed not to include a trial period in the new contract, the Respondent had added art. 2 b) in the final version of the document without informing him. As to that, the Claimant provided FIFA with a draft of the contract in which the relevant art. 2 b) was not mentioned. In the same context, the Claimant also alleged having signed the contract without noticing the amendment in question. Nevertheless, the Claimant further explained that his claim was based on a breach of art. 2 b) of the contract by the Respondent. 9. In addition, the Claimant maintained that the Respondent had terminated the contract after the “management of Company D [i.e. the Respondent] decided to end the activities of the academy in country E, and to sell the Academy”. Apparently, the Claimant was informed on 5 July 2013 about an imminent termination of contract but only found out later, i.e. by means of the termination letter, that the Respondent intended to end their contractual relationship already in October 2013. As alleged by the Claimant, the Respondent had initially agreed on terminating the contract before 14 January 2015 in combination “with a severance fee for the salary due until 14 January 2015”. 10. In continuation, the Claimant argued that, if at all, the Respondent could have terminated the contract after having given “a) a written notice, b) while observing a notice period of three months, c) as of 14 October 2013”. The Claimant further pointed out that, otherwise “the employment agreement [i.e. the contract]” had to “continue until the end date on 14 January 2015.” 11. Equally, the Claimant stressed that as per art. 14 c) of the contract, the Respondent should have given him notice by no later than 13 July 2013, i.e. three months before 14 October 2013. As a result and because he had only received a termination letter on 17 July 2013, valid as of 20 October instead of 13 October 2013, the Claimant considered the relevant termination as being null and void. Hence, in the Claimant’s opinion, the contract should have lasted until 14 January 2015 and the Respondent, by terminating it on 20 October 2013, had breached their contractual relationship without just cause. 12. As a result of the aforementioned, the Claimant deemed being entitled to receive from the Respondent his salary between 20 October 2013 and 14 January 2015 as compensation, corresponding to the total gross sum of EUR 268,851.54. 13. The Claimant calculated the amount in question as follows: - EUR 12,218.34 for the period between 20 October 2013 and 15 November 2013, plus - monthly EUR 14,568.02 between 15 November 2013 and 15 January 2014, i.e. EUR 29,136.04 in total, plus - monthly EUR 1715 between January 2014 and 14 January 2015, i.e. EUR 206,816.28 in total, plus - EUR 3,446.19 as well as EUR 17,234.69 as “13th period (pro rata)” in 2014 and 2015 respectively. With regard to the aforementioned calculation, the Claimant also explained that the Respondent “used to pay the periodic salary at the end of each month, and would pay the remaining (13th) period at the end of one-year term”. 14. Asked about more information with regard to his duties with the Respondent, the Claimant specified that, in his position “as technical director”, he was “responsible for determining, improving and safeguarding the training objectives of the football academy” as well as “for the development of players and the entire technical staff of the academy.” Furthermore, he had to: “ – manage and train the technical staff in accordance with the training objectives of the football academy by means of weekly staff meetings, evaluations, and individual meetings; - Provide training – team training as well as individual training – to all teams and all players of the football academy in order to monitor and encourage their development, and to adjust the training if necessary; - Coach the teams of Company D during football matches; - Organize and hold meetings and performance reviews with all players and all members of the technical staff”. 15. In its response dated 24 February 2014, the Respondent rejected the Claimant’s claim in its entirety. Furthermore, the Respondent contested FIFA’s competence to take a decision on the matter at stake. 16. In this respect, the Respondent alleged not being a club in the sense of art. 22c) of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations) but an academy “affiliated to the club of Company D in country E”. As to that, the club provided FIFA with a printout from the internet page “XXXX” as well as from “Wikipedia”. 17. According to the Respondent, the aim of the academy was to “lead young West African football players to European clubs supported by Company D”. 18. In addition, the Respondent specified that the Claimant had been hired as technical director and not as coach in the sense of art. 22 c) of the Regulations and added that, as of 1 March 2013, the latter had even taken over the responsibilities of the general manager of the academy. 19. In continuation and in the “unlikely event” that FIFA would find itself competent to decide on the present dispute, the Respondent also rejected the Claimant’s claim as to its substance. 20. In this regard, the Respondent maintained having given notice to the Claimant “within the set notice period” and explained that the “three months notice period commenced from the 15th of July 2013 and ended on the end of the day of the 14th of October 2013”. 21. In addition and in the “unlikely event that FIFA (..) would come to the conclusion that the early termination was not effective”, the Respondent pointed out that the relevant termination was accepted by the Claimant “even before receipt of the Defendant’s [i.e. the Respondent] termination notice”. According to the Respondent, the Claimant knew even before receiving the termination letter that his contract would not last longer than October 2013 and had agreed on a mutual termination of contract. Hence, the Respondent deemed that by “pretending the acceptance of the termination Agreement [i.e. the termination letter] over a considerable time period before bringing up the complaint on hand”, the Claimant had violated the principles of good faith. 22. In his replica dated 20 March 2014, the Claimant reiterated his initial claim and insisted on FIFA being competent to take a decision on the matter at stake. 23. According to the Claimant, the Respondent was a club in the sense of art. 22 c) of the Regulations and “competed in the Division F, a football league organized by the Football Association of country E, from 2008 until the season 2012/2013”. 24. Furthermore, in the Claimant’s opinion, there was no distinction between the activities of the Respondent as football academy and those as club, as the players who were trained at the football academy also took part in the football matches of the Respondent. 25. In addition, according to the Claimant, the Respondent was a “single legal entity”. 26. As evidence of the above, the Claimant referred to the following documentation: a printout from the homepage of the Respondent; the contract; an email dated 4 April 2013 allegedly sent to the Football Association of country E; a printout from the internet page XXXX of 10 July 2013 and a press article of 4 August 2013. 27. In continuation, the Claimant insisted on having been hired as coach by the Respondent. 28. As to that, the Claimant referred to his duties mentioned in the contract and stressed that his activities “consisted primarily of training and preparing the players of Company D [i.e. the Respondent] and arranging the line-up for each game, mentoring and leading players, defining and drawing up training programs, and – if necessary – participating in decisions regarding disciplinary measures against players”. In addition, the Claimant elucidated that his activities also consisted of “managing and training the technical staff” whereas “this does not necessarily mean that he is not a coach” as it “is customary that when a club works with a team of coaches (..) the club appoints one of the coaches to function as head coach”. 29. Besides, the Claimant specified that he had acted as head coach of the first team of the Respondent until August 2012 and had then taken over the position of its assistant while also working as head coach of the U-17 and U-13 squads of the Respondent. 30. Equally, the Claimant explained that he had performed some “managerial activities” but that those activities were “minor and did not compare to Coach A’s [i.e. the Claimant] work as coach” and added that he had been forced by the Respondent to take over some of the tasks of its general manager as of 1 March 2013. According to the Claimant, it was supposed to be a temporary situation and he had repeatedly asked the Respondent to find a replacement for the position of general manager. Finally, the Claimant maintained that he had never acted as general manager “neither internally nor externally except when this was absolutely necessary for the authorization of documents as there was no one else willing to do so”. 31. In its final position on 14 April 2014, the Respondent mainly reiterated the contents of its previous submission. 32. In particular, the Respondent insisted on FIFA not being competent to take a decision on the dispute and pointed out that the participation of its first team in the “country E’s Division F does not change the fact that the absolutely main matter of the Defendant [i.e. the Respondent] is the education of players” which is “typical for a soccer academy”. Furthermore, the Respondent added that “all the other teams of the Defendant’s [i.e. the Respondent] academy (U17, U15, U13) only play training matches as there do not exist any official competitions in country E for those age groups”. Hence, the Respondent had to be “seen as an academy educating and developing football players in order to enable them to enter the professional football market in Europe”. 33. In continuation, the Respondent admitted being “set up as a so called single entity” but added that its corporate structure could not be “an argument to the question of whether” it was a club or not as it was “very well possible to distinguish between the activities of Company D’s first team in the Division F of country E on the one hand, and the entire academy which is responsible for the education and development of young players on the other hand”. 34. Equally, the Respondent insisted on the fact that the Claimant had been hired as a technical director. 35. In this respect, the Respondent referred inter alia to the fact that the Claimant would have signed its “Instructions to Management”, which apparently only apply to members of its management. 36. In addition, the Respondent pointed out that the contract was a “standardized model contract normally used for coaches supplemented for the duties of a technical director containing therefore a few clauses which were not 100% appropriate in regards to the definition of the Claimant’s duties; however the emphasis of such duties is clearly laid on the function of a technical director”. 37. Besides, the Respondent maintained that following duties were to be accomplished by the Claimant: “observation, leading and guidance of staff members, including disciplinary measures; observation of players; strategic guidance; setting up meetings strategic meetings; setting up every-day meetings; composition of the content and substance of framework training plans for the several football teams of the academy; receiving reportings of the several coaches (as the sole receiver of such reportings); taking decisions on the question whether or not and in case for which term players should receive contracts; distributing budgets for transport, food and school”. 38. Equally, the Respondent pointed out that the Claimant had attended “management meetings of the Company D in city G on several occasions” and was an “interim coach only” taking over the task of a coach “when a team is not trained by a coach for a certain short period of time”. 39. Finally, the Respondent insisted on having terminated the contract on time. 40. On 3 August 2015, FIFA was informed by the Football Association of country E of the following “Academy C last registered with us at the 2012-2013 Football season. We have since note [sic] registered them as a club or academy to date. By inference, the Academy is not registered or affiliated to the Football Association of country E since then”. 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 and first of all, he took note that the present matter was submitted to FIFA on 20 September 2013. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2012; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 of the Procedural Rules). 2. Subsequently, the Single Judge remarked that in accordance with art. 3 par. 1 of Procedural Rules in combination with art. 23 par. 1 and art. 22 lit. c) of the Regulations on the Status and Transfer of Players (edition 2012; hereinafter: the Regulations) he is, in principle, competent to deal with employment-related disputes between a club or an association and a coach of an international dimension. In this regard, the Single Judge was eager to underline that the question of his competence to hear the present matter must be tackled as the Respondent had disputed it and in view of the fact that the contract at the basis of the dispute was concluded between, on the on hand, the Claimant, and, on the other hand, the Academy C. 3. With the foregoing in mind, the Single Judge also recalled that, as established in art. 6 par. 1 of the Procedural Rules, the parties which are members of FIFA are “clubs, players, coaches or licensed match and players agents”. Thus neither art. 6 par. 1 of the Procedural Rules nor art. 22 c) of the Regulations or any other provision in any of FIFA’s regulations is there a basis to establish FIFA’s competence to hear disputes involving an entity not affiliated to a specific national football association. 4. With the aforementioned considerations in mind, the Single Judge turned his close attention to the argumentation of the Respondent, which had alleged that it was an academy not affiliated to the Football Association of country E as well as to the official correspondence dated 3 August 2015 from the Football Association of country E, in which FIFA was informed that the Respondent was no longer a club affiliated to its association. 5. In view of all of the above, the Single Judge, referring once again to art. 6 par. 1 of the Procedural Rules in combination with art. 22 c) of the Regulations, as well as recalling that the Respondent was no longer a club affiliated to the Football Association of country E, the Single Judge came to the conclusion that the claim of the Claimant had to be considered inadmissible in view of the fact that the Respondent, being not a club affiliated to the Football Association of country E, cannot be viewed as a party in front of the decision-making bodies of FIFA. 6. 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 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. 7. In this respect, the Single Judge reiterated that the claim of the Claimant is not admissible. Therefore, the Single Judge decided that the Claimant has to bear the entire costs of the current proceedings in front of FIFA. 8. 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 over CHF 200,001, the Committee concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000. 9. In conclusion, and considering that the case at hand was adjudicated by the Single Judge and not by Players’ Status Committee in corpore, the Single Judge determined the costs of the current proceedings to the amount of CHF 10,000. 10. Consequently, the Claimant has to pay CHF 10,000 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 A, is not admissible. 2. The final costs of the proceedings in the amount of CHF 10,000 are to be paid by the Claimant, Coach A. Considering that the Claimant, Coach A, already paid the amount of CHF 5,000 as advance of costs, the latter has to pay the remaining amount of CHF 5,000 within 30 days as from the date of notification of the present decision to the following bank account with reference to case nr. XXXX: UBS Zurich Account number 366.677.01U (FIFA Players’ Status) Clearing number 230 IBAN: CH27 0023 0230 3666 7701U SWIFT: UBSWCHZH80A ***** 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: email@example.com www.tas-cas.org For the Single Judge of the Players’ Status Committee Markus Kattner Acting Secretary General Encl. CAS directives