F.I.F.A. – Players’ Status Committee / Commissione per lo Status dei Calciatori – coach disputes / controversie allenatori (2016-2017) – fifa.com – atto non ufficiale – Decision of the Single Judge of the Players’ Status Committee passed in Zurich, Switzerland, on 22 November 2016

Decision of the Single Judge of the Players’ Status Committee of the Players’ Status Committee

passed in Zurich, Switzerland, on 22 November 2016,

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 arisen between the parties.

I. Facts of the case

1. On 17 November 2013, the Coach A from country B (hereinafter: “the Claimant”) and the club from country D, Club C (hereinafter: “the Respondent”) concluded an employment contract (hereinafter: “the contract”), valid from 1 December 2013 until 30 November 2014.

2. In accordance with “Schedule A – Salary” of the contract, the Claimant was entitled to receive from the Respondent a monthly remuneration of USD 15,000 net, payable no later than the 7th day of the following month.

3. In accordance with “Schedule B – Other benefits” of the contract, the Claimant was entitled to receive from the Respondent two return flight tickets to country B per year for the Claimant´s family.

4. Clause 3.4 of the contract stated: “The Official [i.e. the Claimant] agrees that he shall at all times comply with the Constitution of the Member [i.e. the Respondent] and the Football Association of country D together with all rules and regulations of the Member of the Football Association of country D. The Official [i.e. the Claimant] declares that he had read and has fully understood the contents of the Constitution, By-laws and Regulations including all amendments and provisions under this Contract and must always refer to them as guidelines”.

5. Clause 3.5 of the contract stated: “The Official [i.e. the Claimant] shall not take part in any sporting or athletic activity as a professional without the prior written consent of the Member [i.e. the Respondent]. The Official [i.e. the Claimant] shall do all necessary actions to maintain his physical and mental condition as its best so that he shall provide his best performance for the Member [i.e. the Respondent]. The Official [i.e. the Claimant] agrees that he shall not involve in any sport or activity that may adversely affect his condition”.

6. Clause 5.2 (ii) of the contract stated: “If the Member [i.e. the Respondent] is satisfied that the Official [i.e. the Claimant] have deliberately acted against the Member´s or the Football Association of country D´s instruction, or if in any of the matches, the Official [i.e. the Claimant] have committed any offence or acting in a contemptible attitude that can cause the Spectators to start a riot, or to the opinion of the Member of the Football Association of country D i.e. the Respondent] that the Official [i.e. the Claimant] has acted in an improper manner, thus disrupting the image and credibility of the member of the Football Association of country D , the Member [i.e. the Respondent] have the right to take action as follows: … (ii) For second offence the member [i.e. the Respondent] have the right to cut a maximum of 30% from the official´s salary …”

7. Clause 5.6 of the contract stated: “The Official [i.e. the Claimant] shall not make any press statements regarding any match, refereeing, the Football Association of country D [i.e. the Football Association of country D] Member, team or other matters related to the Football Association of country D or Member´s football administration without the prior consent of the Member [i.e. the Respondent] or the Football Association of country D”.

8. On 22 August 2014, the Claimant lodged a claim in front of FIFA against the Respondent for breach of contract without just cause.

9. In this respect, the Claimant explained that, on occasion of a management team meeting on 10 April 2014, the Respondent presented to him three letters dated 25 March 2014, 1 April 2014 and 8 April 2014, respectively. By means of the aforementioned letters, the Respondent alleged that the Claimant breached clause 5.6 of the contract by having appeared in a television program analysing matches in the League of country E, expressed its disappointment with the performance of the team and, finally, informed the Claimant that his services as head coach of the team would be suspended as of 9 April 2014 invoking “performance degradation”.

10. Subsequently, the Claimant claimed that, by means of a letter dated 17 April 2014, he requested from the Respondent to withdraw the suspension and reinstate him in his position as head coach.

11. Furthermore, the Claimant stated having received on 20 April 2014, a letter from the Respondent dated 16 April 2014 and entitled “show cause letter” (hereinafter: “the show cause letter”), by means of which the Respondent requested from the Claimant to answer the following questions within 7 days:

(1) “In several occasion attending and receiving payment from company F as a commentator without written permission from Club C;

(2) Failure to return 2 letterheads taken by you from our office;

(3) Arrangement made by you and an individual to send a person over top country G play in division 1, Club H thus he ca come back and re-join Club C in the opening window on April which is unable materialize”.

The Claimant explained having received such letter on 30 April 2014 only, since it had been sent to the email address of his wife.

12. The Claimant stated that on 30 April 2014, the Respondent sent a letter to him (hereinafter: “the termination letter”), by means of which the latter terminated the contract being effective 30 days counted from 30 April 2014, i.e. 30 May 2014, alleging that the Claimant failed to respond to the letter dated 16 April 2014 and reminder on 29 April 2014 and having breached the Football Association of country D´s Disciplinary Code.

13. On 2 May 2014 the Claimant sent a letter to the Respondent contesting the termination of the contract and stating his opinion that he did not breach any of the cited contractual clauses and that the termination was done by the Respondent without any legal basis.

14. The Claimant explained that on 7 May 2014, the Respondent sent two letters to the Claimant, by means of which the Respondent informed the Claimant having failed to report for duty during the period of his suspension and that therefore clauses 3.4 and 5.2 (ii) of the contract applied, whereby the Claimant would see a reduction in his salary. Moreover, the Respondent stated that it would deduct 30% from the Claimant´s salary related to the months of April and May in accordance with clause 5.2 of the contract.

15. Finally, the Claimant alleged that on 10 April 2014 he purchased an air ticket for his wife (cf. schedule B of the contract) to travel from city I to city J (return) and that the Respondent did not reimburse the cost of this ticket.

16. Consequently, the Claimant requested the total amount of USD 121,113, plus interest “at the prevailing rate” from 1 April 2014, as follows:

 USD 30,000 as outstanding salaries corresponding to the months of April and May 2014;

 USD 1,113 corresponding to a return flight ticket (city I-city J);

 USD 90,000 as compensation equivalent to the residual value of the contract (1 June 2014 to 30 November 2014).

17. The Respondent presented its position to the Claimant’s claim arguing having had just cause to terminate the contract, since the Claimant breached, inter alia, the following contractual obligations:

(1) clause 3.5 of the contract by attending a TV program without the Respondent´s written consent and failure to conduct training as scheduled;

(2) clause 18.1 of the Football Association of country D disciplinary code;

(3) clause 35.2 of the Football Association of country D disciplinary code as he failed to reply the “show cause” letter within the given deadline;

(4) clause 3.4 of the contract since the Claimant failed to report for duty at Club C office (from 9 am to 5 pm) during the suspension while pending further action;

(5) clause 35.2 of the Football Association of country D disciplinary code as he failed to provide explanation about using the Respondent´s letterhead without its consent and about providing incorrect information about the engagement of the Player K recommended by the Claimant and caused the Respondent a loss amounting to USD 10,000.

18. In his replica the Claimant reiterated his previous statements and requests. In addition, the Claimant argued that the Respondent made vague and trivial allegations about his behaviour without legal grounds.

19. Regarding the “show cause” letter the Claimant contested all the Respondent´s allegations and, in particular, pointed out that he did not miss any training session due to his commitments with the country E’s TV, in no way he commented on matters that could fall within the scope of the clause 5.6 of the contract.

20. The Respondent presented its final position by reiterating its previous allegations and, in particular, argued that the termination of the contract was done according to proper procedures without violating the contractual provisions.

II. Considerations of the Single Judge of the Players’ Status Committee

1. First of all, the Single Judge of the Players’ Status Committee (hereinafter also referred to as: “the Single Judge”) analysed whether he was competent to deal with the matter at hand. In this respect, he took note that the present matter was submitted to FIFA on 22 August 2014. Consequently, the Single Judge concluded that the 2014 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution (hereinafter: “the Procedural Rules”) is applicable to the matter in hand (cf. art. 21 of the Procedural Rules).

2. Furthermore, the Single Judge confirmed that, on the basis of art. 3 par. 1 of the Procedural Rules in connection with art. 23 par. 1 and 4 as well as art. 22 c) of the 2016 edition of the Regulations on the Status and Transfer of Players, he shall adjudicate on an employment-related dispute between a club or an association and a coach that have an international dimension. As a consequence, the Single Judge confirmed that he was the competent body to decide on the present dispute involving a coach from country B and a club affiliated to the Football Association of country D regarding outstanding remuneration.

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 confirmed that in accordance with the art. 26 par. 1 and 2 of the edition 2016 of the Regulations and taking into account the fact that the present claim was lodged with FIFA on 22 August 2014, the 2014 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. The competence of the Single Judge 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 documentation contained in the file. However, the Single Judge emphasised that in the following considerations he will refer only to the facts, arguments and documentary evidence which it considered pertinent for the assessment of the matter at hand.

5. Having said this, the Single Judge took note that it remained undisputed that, on 17 November 2013, the Claimant and the Respondent concluded the contract which was valid from 1 December 2013 until 30 November 2014.

6. Moreover, the Single Judge took note that the Claimant argued that, on 30 April 2014 the Respondent terminated the contract “in writing” without just cause with effect as from 30 May 2014. Furthermore, the Claimant alleged that before the relevant termination, the Respondent suspended him as from 9 April 2014 based on invalid reasons.

7. On the other hand, the Single Judge observed that the Respondent alleged having valid reasons to terminate the contract with the Claimant since the latter violated different contractual obligations (cf. point 17 of the facts).

8. In this respect, the Single Judge outlined that the Respondent argued that the Claimant breached certain contractual obligations however without providing enough documentary evidence to support its allegations. In particular, the Single Judge took note that the Respondent enclosed only the letters sent to the Claimant.

9. In this context, the Single Judge referred to the content of art. 12 par. 3 of the Procedural Rules which states that “any party claiming a right on the basis of an alleged fact shall carry the burden of proof”, and decided based on said provision to reject the Respondent´s allegation.

10. In continuation, the Single Judge was eager to emphasise that 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. A premature termination of an employment contract can always only be an ultima ratio.

11. Besides, the Single Judge stated that when there is a misunderstanding or a conflict between a club and a coach it is important first to exhaust all the possibilities by means of negotiation in order to find a common understanding.

12. On account of all the above, the Single Judge resolved that the Respondent had terminated the contract without just cause on 30 May 2014, date in which the termination of the contract was effective based on the terms of the letter dated 30 April 2014 sent by the Respondent to the Claimant.

13. Bearing in mind the previous considerations, the Single Judge went on to deal with the potential financial consequences of the early termination of the employment contract without just cause by the Respondent.

14. Therefore, the Single Judge turned his attention to the outstanding remuneration at the date of contract termination, i.e. 30 May 2014 and recalled that, on the one hand, the Claimant alleged that pursuant to the “Schedule A” of the contract, the salaries of April and May 2014 were outstanding.

15. In this respect, the Single Judge recalled that the termination letter clearly stipulated that the employment relationship between the Claimant and the Respondent came to an end on 30 May 2014.

16. Moreover, the Single Judge was eager to point out that, as a general rule, monthly salaries are due at the end of each month in which the employee rendered his/her services. Equally, the Single Judge referred to the content of Schedule A of the contract, pursuant to which the parties established that monthly salaries would be paid until the 7th day of the following month.

17. In view of the above, bearing in mind that the Respondent had not been able to prove to have paid any salaries to the Claimant at the time of the termination of the contract, i.e. on 30 May 2014 (cf. art. 12 par. 3 of the Procedural Rules) the Single Judge concluded that the Claimant is entitled to receive from the Respondent the outstanding remuneration of USD 30,000 related to the salaries of the months of April and May 2014.

18. In addition, the Single Judge took note that the Claimant had requested interest over the outstanding amounts. In this regard, the Single Judge decided to grant interest at a rate of 5% per year over the relevant two different monthly salaries as from their respective due dates, i.e. from 1 May 2014 and 1 June 2014, respectively, until the date of effective payment.

19. In continuation, the Single Judge focused his attention to the Claimant´s request for a flight ticket amounting to USD 1,113. In this regard, the Single Judge acknowledged that according to “Schedule B” of the contract the Respondent promised to provide the Claimant with two return flight tickets to country B per year for the coach´s family.

20. In addition, the Single Judge took note that the Claimant presented documentary evidence proving the payment of the requested amount as flight ticket.

21. In view of the above, the Single Judge accepted the Claimant´s request for an amount of USD 1,113.

22. Moreover, the Single Judge took note that the Claimant had requested interest over the amount corresponding to the flight ticket. In this regard, the Single Judge decided to grant interest at a rate of 5% per year over the relevant amount as from the date of the termination of the contract, i.e. 30 April 2014.

23. Turning his attention to the compensation payable for the unilateral termination without just cause by the Respondent. In this respect, the Single Judge took note that the Claimant was claiming a total amount of USD 90,000 as compensation equivalent to the residual value of the contract, i.e. from 1 June 2014 until 30 November 2014.

24. In this context, and taking into account the legal principle of contractual freedom, the Single Judge held that, as a general rule, if an employment contract contains a specific provision establishing an amount of compensation to be paid in case of early termination, such provision should prevail over any other way to determine compensation for a unilateral early termination.

25. In this respect, the Single Judge remarked that the parties did not establish a specific provision in the contract fixing an amount of compensation in case of its premature termination.

26. In this context, the Single Judge underlined that the Claimant informed FIFA that he did not sign any other employment contact after the date of the termination of the employment relationship with the Respondent, i.e. 30 May 2014 and until the end of its validity, i.e. 30 November 2014.

27. Consequently, the Single Judge concluded that the Claimant is entitled to a compensation equivalent to the residual value of the contract, i.e. from 1 June 2014 until 30 November 2014 (i.e. 6 months).

28. Therefore, the Single Judge decided that the Claimant should be entitled to receive from the Respondent the amount of USD 90,000 as compensation for breach of contract.

29. Moreover, considering the Claimant’s request, the Single Judge decided to grant interest at a rate of 5% per year over the relevant compensation amounting to USD 90,000 as from the date in which the Claimant lodged the present claim at FIFA, i.e. 22 August 2014.

30. In view of all the above-mentioned considerations, the Single Judge decided that the claim of the Claimant is partially accepted and that the Respondent has to pay to the Claimant the amount of USD 31,113, plus interest at a rate of 5% per year as from the relevant due dates as outstanding remuneration as well as the amount of USD 90,000 as compensation, plus interest at a rate of 5% per year as from 22 August 2014.

31. 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, including the 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.

32. 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. The amount in dispute to be taken into consideration in the present proceedings is more than to CHF 100,000. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 15,000.

33. Considering that, in the case in hand, the claim was partially accepted and taking into account the particular circumstances of the present matter, the Single Judge determined the costs of the current proceedings in the amount of CHF 10,000 and held that such costs have to be borne by the Respondent.

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 this decision, the total amount of USD 31,113 as outstanding remuneration, plus interest as follows:

 5% per year on the amount of USD 15,000 as from 1 May 2014 until the date of effective payment;

 5% per year on the amount of USD 15,000 as from 1 June 2014 until the date of effective payment;

 5% per year on the amount of USD 1,113 as from 30 April 2014 until the date of effective payment.

3. The Respondent, Club C, has to pay to the Claimant, Coach A, within 30 days as from the date of notification of this decision, the amount of USD 90,000 as compensation, plus interest at a rate of 5% per year from 22 August 2014 until the date of effective payment.

4. Any further claims lodged by the Claimant, Coach A, are rejected.

5. If the aforementioned sums, plus interest as provided 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 10,000 are to be paid by the Respondent, Club C, within 30 days as from the date of notification of this decision, as follows:

6.1 The amount of CHF 7,000 has to be paid to FIFA 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

6.2 The amount of CHF 3,000 has to be paid directly to the Claimant, Coach A.

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. 3 and 6.2 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. 58 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

For the Single Judge of the

Players’ Status Committee

Marco Villiger

Deputy Secretary General

Encl. CAS Directives