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 23 September 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 club Club C, country D 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 23 September 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 club Club C, country D as “Respondent” regarding a contractual dispute between the parties. I. Facts of the case 1. On 1 July 2010, the Coach A from country B (hereinafter: the Claimant) and the Club C from country D (hereinafter: the Respondent) concluded an employment contract (hereinafter: the first contract), valid “until the end of the football season” and which provided for the Claimant to receive from the Respondent a monthly salary of USD 11,000. In addition, the first contract stipulated that the Claimant would receive from the Respondent an amount of USD 22,000 “as an advance payment which will be deducted from the monthly salaries” as well as “(2) economy class round trip ticket for him and his family”. 2. In May 2011, the Claimant and the Respondent signed another employment contract (hereinafter: the second contract), valid for “one year commencing on 01/07/2011” and according to which the Claimant was also entitled to a monthly salary of USD 11,000, payable “at the end of every Gregorian month” as well as “an advance payment of USD 22,000 […] which will be deducted from his monthly salaries”. 3. Article V.2 of the second contract provided that each party had the right to terminate the contract at any time before its “maturity […] by sending an official notice […] one month before the date selected to end the relation”. The same article further stipulated that if the Respondent terminated the employment relationship, it would have to pay to the Claimant “a compensation of two-month salary”. In case the Claimant decided to terminate his contract, he would also have to pay to the Respondent a compensation of “two-month salary” but also the “advance payment […] after deduction of the actual period he spent with the Club [i.e. the Respondent]”. Moreover, the second contract stated that “If the Club [i.e. the Respondent] terminates the contract before its due date then it shall provide two economy class air tickets for the 2nd Party [i.e. the Claimant] and his family back to his country”. 4. Finally, the second contract also provided that the Claimant would be entitled to “two economy class air-tickets to the 2nd Party [i.e. the Claimant] and his family” during the duration of his employment relationship. 5. On 5 June 2012, the Claimant lodged a claim in front of FIFA against the Respondent for breach of contract. In this respect, he explained that, in December 2011, in view of the fact that the Respondent had stopped paying his monthly salary since July 2011, he had requested the Respondent to immediately comply with its contractual obligations. 6. The Claimant further alleged that, having not received anything from the Respondent, he “was forced” to terminate his contractual relationship with the latter on 24 January 2012 and consequently had then contacted the Football Federation of country D on 28 January 2012 “in order for Club C [i.e. the Respondent] to be condemned for breach of contract”. 7. In this context, the Claimant explained that the “Legal Committee” of the Football Federation of country D had subsequently passed a “decision”, copy of which was never given to him, by means of which the Respondent was apparently condemned to pay him an amount of 203,503 (representing, according to the Claimant, the amount of USD 54,264). Unhappy about the outcome of said “decision”, the Claimant alleged having appealed it but to have then never received any payment whatsoever from the Respondent. 8. In view of the above, the Claimant requested FIFA to condemn the Respondent to pay him the amount of USD 221,000 as outstanding salary, compensation for breach of contract and damages. 9. On 12 June 2012, FIFA informed the Claimant that in view of the fact that a decision had apparently already been passed by the Football Federation of country D in the matter at hand and on the basis of the legal principle of res iudicata, it was no longer in a position to intervene in the matter at hand. 10. On 19 March 2013, the Claimant explained that in fact no decision had been passed by the “Legal Committee” of the Football Federation of country D and that the latter had only ordered the club to pay the amount of 203,503 “without analysing the file”. Consequently, the coach deemed that FIFA should therefore hear the present matter. 11. On 19 March and on 7 May 2013, the Claimant reiterated his claim against the Respondent. In this respect and as to the facts of the case, the Claimant argued that he was entitled to a remuneration of USD 132,000 for each of the contract he had concluded with the Respondent (i.e. the first and the second contract), payable as follows: an advance payment of USD 22,000 at the start of the contract and 12 monthly payments of USD 9,166.50. Furthermore, the Claimant alleged that he was also entitled to a “return flight ticket per season (country D - country B), valued at USD 10,885”. 12. On account of the above, the Claimant alleged that, during the “2010-2011 season” and the “2011-2012 season” and up until January 2012, the Respondent had failed to pay the total amount of USD 117,102 broken down as follows: - 2010/2011 season: USD 9,166.50 as outstanding salary for the month of May 2011 USD 10,885 as “flight tickets”. - 2011/2012 season: USD 22,000 as advance payment; USD 64,165.50 (i.e. seven monthly salaries of USD 9,166.50) as outstanding salary for the period from July 2011 until January 2012; USD 10,885 as “flight tickets”. 13. The Claimant then explained that the Respondent had however paid in November 2011 a lump sum of USD 19,333 and that this amount should therefore be deducted from the total sum payable to him of USD 117,102. Hence, the Claimant concluded that the remaining amount still payable to him by the Respondent in terms of outstanding remuneration and flight tickets was USD 97,769 (i.e. USD 117,102 – USD 19,333). 14. Furthermore, and because the second contract was supposed to expire on 30 June 2012, the Claimant requested from the Respondent the payment of the amount of USD 45,832.50 as compensation for breach of contract (i.e. five monthly salaries of USD 9,166.50). 15. Finally, the Claimant deemed that he should also be entitled to receive an additional amount of USD 300,000 as “damages” as well as USD 20,000 as “legal costs”. 16. All in all, the Claimant requested from the club the payment of the total amount of USD 463,801.50 as detailed above. 17. Although invited by FIFA to provide its response to the claim on 11 June 2013, the Respondent did not submit any comments in the matter at hand. 18. On 17 October 2013, the Claimant informed FIFA that he had not been able to find any other employer after having left the club in January 2012. 19. On 15 January 2014, the Single Judge of the Players‘ Status Committee decided that the claim of the Claimant was inadmissible in accordance with the legal principle of res iudicata as the same dispute had already been brought before the Football Federation of country D. 20. The aforementioned decision was appealed in front of the Court of Arbitration for Sport (CAS) by the Claimant. 21. On 13 April 2015, CAS ruled the following: 1. “The appeal filed by Coach A [i.e. the Claimant] on 8 August 2014 against the decision issued by the FIFA Single Judge of the Players’ Status Committee on 15 January 2014 is upheld”. 2. “The decision issued by the FIFA Single Judge of the Players’ Status Committee on 15 January 2014 is set aside”. 3. “The case is referred back to the FIFA Single Judge of the Players’ Status Committee for decision in accordance with the reasons of the present award”. 4. “The costs of the arbitration CAS 2014/A/3695, to be determined by the CAS Court Office, shall be borne entirely by Club C [i.e. the Respondent]”. 5. “Club C [i.e. the Respondent] is ordered to pay to Coach A [i.e. the Claimant] a contribution towards its legal costs incurred in connection with the present arbitration procedure in the amount of CHF 5’000 (..).” 6. “All other motions or prayers for relief are dismissed”. 22. On the same day, CAS provided FIFA with a copy of the relevant Award to FIFA drawing FIFA’s attention to its following extracts: “91. In light of the above, the Sole Arbitrator considers that the Single Judge, who was not aware of the Football Federation of country D’s [i.e. the Football Federation of country D] position, was wrong in declaring that the Football Federation of country D Communication was res judicata so that his decision shall be annulled. The fact that the Appellant [i.e. the Claimant] himself referred to the Football Federation of country D Communication as “a decision” does not change this analysis. […] 92. The Sole Arbitrator thus finds it appropriate to set aside the SJ Decision and to remand the case back to the Single Judge who will decide whether he has jurisdiction to rule on the merits of this dispute and, in the affirmative, issue a decision on the merits of the case. The Court of Arbitration for Sport rules that: 3. The case is referred back to the FIFA Single Judge of the Players’ Status Committee for decision in accordance with the reasons of the present award”. 23. On 17 September 2015, the parties were informed by FIFA that, following the Arbitral Award rendered by CAS on 13 April 2015, the matter at stake was to be submitted to the Single Judge of the Players’ Status Committee for consideration and a formal decision. 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 which procedural rules are applicable to the matter at hand. In view of the fact that the present matter was submitted to FIFA on 5 June 2012, the Single Judge of the Players’ Status Committee concluded that the 2008 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the present matter (cf. art. 21 of the Procedural Rules). 2. Subsequently, the Single Judge referred to art. 3 par. 1 of the Procedural Rules, in conjunction with art. 23 par. 1 and 3 and art. 22 c) of the Regulations on the Status and Transfer of Players (2010 and 2012 editions; hereinafter: the Regulations) and confirmed that he shall adjudicate on an employment-related dispute between a club or an association and a coach that have an international dimension. 3. As a consequence, the Single Judge would, in principle, be the competent body to decide on the present employment-related dispute involving a coach from country B and a club from country D regarding an employment-related dispute. 4. However and considering that by means of a decision of the Single Judge of the Players’ Status Committee dated 15 January 2014, the claim of the Claimant had been declared inadmissible on the basis of the principle of res iudicata, the Single Judge was of the opinion that, in casu, the first question to be addressed was whether he was actually competent to enter into the substance of the present matter and pass a decision on the dispute at stake or not. 5. In this respect and to begin with, the Single Judge pointed out that his ruling of 15 January 2014 was based on the assumption that a decision in the present dispute had already been pronounced by the Football Federation of country D (hereinafter: Football Federation of country D). Such assumption was supported by the documentation at his disposal at that time. 6. In addition, the Single Judge recalled that his aforementioned decision was appealed at CAS by the Claimant and that CAS, in its ruling of 13 April 2015, had decided to set it aside, whereas the dispute at stake was referred back to him to “decide whether he has jurisdiction to rule on the merits of the dispute and, in the affirmative, issue a decision on the merits of the case”. The CAS award was based on new documentation indicating that, in fact, no decision was passed in the present matter by Football Federation of country D as the Single Judge had wrongly assumed in his first decision of 15 January 2014. 7. In view of all the aforementioned, the Single Judge came to the conclusion that he is competent, on the basis of art. 23 par. 1 and 3 in combination with art. 22 lit. c) of the Regulations, to consider the present matter as to the substance as established by CAS in its ruling. In this context, the Single Judge was eager to emphasize that in accordance with the CAS award, the matter was referred back to him in accordance with the latter’s reasoning, i.e. in accordance with the fact that, after all, the principle of res iudicata could in casu not be applied. It is therefore the understanding of the Single Judge that, following his deliberation on the issue of his competence, he should start his analysis by acknowledging the facts of the case and the arguments of the parties as well as the documents contained in the file in his possession, i.e. the documentation provided during the investigation at FIFA which had already led to a decision on 15 January 2014. 8. In doing so, the Single Judge first of all observed that the Respondent had not submitted any comments in response to the claim lodged against it by the Claimant despite having been asked to do so by FIFA. In the same context, the Single Judge further remarked that, after having been informed by FIFA on 17 September 2015 that the matter would have been submitted once again to his attention for consideration and a formal decision, the latter had failed to provide any kind of reaction, although, in principle, it would have had enough time to do so. Therefore, the Single Judge concluded that, in this way, the Respondent had renounced to its right of defence and, thus, it had to be assumed that it had accepted all allegations made by the Claimant during the course of the investigation at FIFA. 9. Hence and bearing in mind the aforementioned, the Single Judge referred to art. 9 par. 3 of the Procedural Rules and pointed out that in the present matter a decision shall be taken upon the basis of the documents on file, in other words upon the allegations and documents provided by the Claimant. 10. Having said this, the Single Judge started his analysis by acknowledging that, on 1 July 2010, the Claimant and the Respondent had concluded an employment contract (hereinafter: the first contract) which was valid until the end of the relevant football season 2010-2011 and which provided for the Claimant to receive from the Respondent a monthly remuneration of USD 11,000 as well as an advance payment of USD 22,000 to be deducted from the relevant salary, and two economy round trip flight tickets for him and his family. Furthermore, the Single Judge took note that in May 2011, the parties had concluded a further agreement (hereinafter: the second contract) valid for one year as of 1 July 2011, which also provided for the Claimant to receive from the Respondent a monthly salary of USD 11,000 as well as an advance payment of USD 22,000 to be deducted from the salary in question, and the same amount of flight round trip tickets as per the first contract. Besides, the Single Judge noted that the second contract included a clause in accordance with which, in case the Respondent would prematurely terminate its contractual relationship with the Claimant, it would have to pay to the latter two monthly salaries as compensation as well as two economy class air tickets for him and his family to go back to country B, whereas in case the Claimant was the party who would prematurely terminate the contractual relationship with the Respondent, he would have to reimburse the Respondent the advance payment already received on a pro rata basis and pay to the latter two monthly salaries. 11. Subsequently, the Single Judge remarked that, on 5 June 2012, the Claimant had lodged a claim with FIFA against the Respondent for breach of contract and had requested from the latter the payment of outstanding remuneration and compensation. Equally, the Single Judge noticed that, according to the Claimant, the Respondent had stopped paying him his salary as of July 2011 and had thus forced him to terminate their contractual relationship on 24 January 2012. 12. Finally, the Single Judge recalled once again that all allegations of the Claimant had not been contested by the Respondent. 13. In light of the above, the Single Judge deemed that the second question to be addressed in the present matter was whether the contractual relationship between the parties of the reference was terminated with or without just cause by the Claimant on 24 January 2012. 14. In this respect, the Single Judge referred to his well-established jurisprudence in similar cases and pointed out that failure from a club to pay a coach’s salary during several months of contract has to be considered a serious violation of its contractual obligations which entitles the coach concerned to prematurely terminate their contractual relationship with immediate effect. Hence and considering that the Respondent’s failure to pay to the Claimant his salary as of July 2011 had remained undisputed, the Single Judge was of the opinion that, at the time the latter had terminated their contractual relationship, i.e. on 24 January 2012, the breach of contract perpetrated by the Respondent had already reached such level that clearly justified such a premature termination of contract. As a result, the Single Judge established that the contractual relationship between the parties was terminated with just cause by the Claimant on 24 January 2012 following the breach of contract committed by the Respondent. 15. Having established that the second contract had been terminated as a consequence of the Respondent’s breach of contract in not paying the Claimant several consecutive months of salary, the Single Judge went on to assess the potential financial consequences of such a breach. 16. In this regard and first of all, the Single Judge turned its attention to the first part of the Claimant’s claim, i.e. his request for payment of the following outstanding remuneration, i.e. USD 9,166.50 as outstanding salary for the month of May 2011 as well as USD 10,885 corresponding to “flight tickets” for the 2010/2011 season; USD 22,000 as advance of payment as well as USD 64,165.50 (seven monthly salaries of USD 9,166.50) as outstanding salaries for the period from July 2011 and January 2012 and USD 10,885 representing “flight tickets” for the 2011/2012 season. 17. In this respect and to begin with, the Single Judge referred to the Claimant’s request related to the payment of USD 22,000 which was due to him in accordance with the second contract as advance payment, and pointed out that the sum in question, being an advance on the Claimant’s future remuneration, had to be deducted from his monthly salary during the validity of the relevant contractual period. 18. Considering the aforementioned as well as bearing in mind that the contractual relationship between the parties was already terminated on 24 January 2012, the Single Judge decided that the relevant advance of payment could not be granted to the Claimant as the amount in question should be rather taken into account when calculating each single month of salary requested by the latter as outstanding remuneration and compensation for breach of contract. 19. As a result of the above, the Single Judge decided that the request of the Claimant regarding the payment of USD 22,000 as advance of costs had to be rejected. 20. Having established the aforementioned, the Single Judge reverted his attention to the Claimant’s claim concerning the payment of his salaries of May, July, August, September, October, November and December 2011 and highlighted the fact that the non-payment of the relevant remuneration had remained undisputed by the Respondent. 21. In view of the above as well as taking into account the legal principle of pacta sunt servanda, which in essence means that agreements must be respected by the parties in good faith, the Single Judge concluded that the Claimant is entitled to receive from Respondent the following outstanding remuneration: USD 9,166.50 for May 2011 and USD 66,000 for July, August, September, October, November and December 2011, i.e. six monthly salaries of USD 11,000, for the total sum of USD 75,166. 22. In addition, considering that the contractual relationship between the parties was already terminated on 24 January 2012 and taking into account that each monthly salary had to be paid at “the end of every Gregorian month”, the Single Judge specified that no remuneration was to be paid to the Claimant for the month of January 2012. 23. In continuation, the Single Judge took into account that, as specified by the Claimant himself, the Respondent would have paid him the sum of USD 19,333 in November 2011. As a result, the Single Judge established that the amount in question has to be deducted from the outstanding remuneration due to the Claimant. 24. Furthermore, the Single Judge recalled that it had also remained undisputed that the Claimant had not yet received from the Respondent “two economy class airtickets (..)” for him and his family as contractually agreed. Hence and again keeping in mind the aforementioned legal principle of pacta sunt servanda, the Single Judge decided that the Claimant is entitled to receive from the Respondent the equivalent of two one way economy class flight tickets country D-country B for him, his wife and two children, which approximately correspond to the total amount of USD 5,344. 25. In light of all the aforementioned, the Single Judge concluded that the Respondent has to pay to the Claimant the total amount of USD 61,177.50 as outstanding remuneration, i.e. USD 9,166.50 plus USD 66,000 plus USD 5,344 minus USD 19,333. 26. Having decided the aforementioned, the Single Judge focused on the second part of the Claimant’s claim, i.e. his request related to compensation for breach of contract. 27. In this respect, the Single Judge pointed out that in accordance with the second contract, in case the Respondent would terminate his contractual relationship with the Claimant, he would have to pay to the latter the equivalent of two months’ salary as compensation. The Single Judge duly observed that this clause was reciprocal as the same would apply in case the Claimant would prematurely terminate the contractual relationship with the Respondent. Hence, from the Single Judge’s point of view, the second contract included a clear rule related to the payment of compensation in case of early termination of contract. Therefore, in the Single Judge’s opinion, it had to be assumed that the purpose of the provision in question was for an early termination of contract to be clearly regulated in advance by the parties, whereas the party responsible for the termination in question was the one who had to pay the relevant compensation. 28. In view of the aforementioned and considering that in casu a breach of contract committed by the Respondent had led to the termination of the second contract, the Single Judge came to the conclusion that the latter had to pay to the Claimant two months’ salary as compensation for breach of contract, i.e. the sum of USD 22,000. 29. Subsequently and with regard to the Claimant’s claim related to the payment of USD 300,000 to compensate the alleged “damages” incurred, the Single Judge underlined that such request had not been accompanied by any documentary evidence. Consequently and bearing in mind the content of art. 12 par. 3 of the Procedural Rules which stipulates that the burden of proof has to be carried by the party claiming a right on the basis of an alleged fact, the Single Judge concluded that this part of the claimant’s complaint could not be granted for lack of evidence. 30. Finally and with regard to the Claimant’s request in connection with the reimbursement of the legal costs allegedly incurred, the Single Judge recalled the provisions of art. 18 par. 4 of the Procedural Rules, which clearly stipulate that “no procedural compensation is awarded in proceedings of the Players’ Status Committee and the DRC”. Therefore, the Single Judge decided that the Claimant’s claim regarding legal expenses has to be rejected. 31. In view of all the aforementioned, the Single Judge decided that the claim of the Claimant is partially accepted and that the Respondent has to pay to the Claimant USD 61,177.50 as outstanding remuneration and USD 22,000 as compensation for breach of contract. 32. 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. 33. In this respect, the Single Judge reiterated that the claim of the Claimant is only partially accepted and that the Respondent is the party at fault. Therefore, the Single Judge concluded that the circumstances of the present case warrant for the costs of the current proceedings to be borne by the Claimant and the Respondent on the basis of their respective degree of success in the present matter. 34. 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 higher than CHF 200,001, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000. 35. Considering the particular circumstances of the present matter and also bearing in mind that the Respondent did not reply to the claim of the Claimant, the Single Judge determined the costs of the current proceedings to the amount of CHF 18,000. 36. Consequently, the Claimant has to pay CHF 12,000 and the Respondent has to pay CHF 6,000 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 partially accepted. 2. The Respondent, Club C, has to pay to the Claimant, Coach A, within 30 days as from the date of notification of the present decision, the total amount of USD 61,177.50 as outstanding remuneration. 3. The Respondent, Club C, has to pay to the Claimant, Coach A, within 30 days as from the date of notification of the present decision, the amount of USD 22,000 as compensation for breach of contract. 4. If the aforementioned sums, are not paid within the aforementioned deadline, an interest rate of 5% per year will apply as of the 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 other claims lodged by the Claimant, Coach A, are rejected. 6. The final costs of the proceedings in the amount of CHF 18,000 are to be paid by both parties to FIFA, within 30 days as from the date of notification of the present decision as follows: 6.1. The amount of CHF 6,000 has to be paid by the Respondent, Club C. 6.2. The amount of CHF 12,000 has 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 7,000. 6.3. The abovementioned amounts in points 6.1 and 6.2 have to be paid 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: UBSWCHZH80 7. The Claimant, Coach A, is directed to inform the Respondent, Club C, immediately and directly of the account number to which the remittances under points 2. and 3. above are to be made and to notify the Players’ Status Committee of every payment received. 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 Acting Secretary General Encl. CAS directives
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