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 4 January 2015

Decision of the Single Judge of the

Players´ Status Committee

passed in Zurich, Switzerland, on 14 January 2015,

by

Mr 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 an employment-related contractual dispute

arisen between the parties.

I. Facts of the case

1. On 1 July 2013, 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 contract), valid from the date of its signature until 30 June 2015.

2. According to art. II.1. of the contract, the Claimant was entitled to receive a monthly salary of 500,000, to be paid “until the 10th day of the following month”.

3. Art. IV.2. “Termination of employment” of the contract stipulates that:

“The present contract is to be terminated or modified only upon written mutual agreement of the parties. […]

The Employer [i.e. the Respondent] and the Employee [i.e. the Claimant] are entitled to terminate the present agreement by an extraordinary termination – with immediate effect – if the other party breach of his essential obligations arising from employment, whether intentionally or through gross negligence or otherwise perform a behaviour which makes it impossible the working relationship to be maintained.

Employee gives Employer a 90-day patience-period for payment in case of late payment, so Employer may perform his right of termination based on such reason earliest in case 91 days delay of payment”.

4. On 14 February 2014, the Claimant lodged a claim in front of FIFA against the Respondent, arguing that the latter had allegedly orally released the Claimant from his duties on 11 October 2013. Furthermore, the Claimant explained that the latter and the Respondent did not reach any amicable agreement. The Claimant further argued that, on 11 February 2014, the Respondent terminated the employment agreement with immediate effect allegedly due to serious misconduct of the Claimant.

5. Consequently, the Claimant requested from the Respondent a total amount of 10,000,000 (i.e. the sum of 1,500,000 as outstanding salaries + the sum of 8,500,000 as compensation representing the remaining value of the contract {17 months}).

6. On 2 June 2014, the Respondent rejected the Claimant’s claim in its entirety. In this respect, the Respondent was of the opinion that the FIFA Players’ Status Committee was not competent to hear the present dispute since the Claimant had the nationality of country D. The Respondent further explained that the 3 monthly outstanding salaries claimed by the Claimant, in the amount of 1,500,000, were paid by the Respondent on 25 February 2014. Moreover, the Respondent claimed that the Claimant had already lodged a claim in front of the Disciplinary Committee of the Football Association of country D, and, therefore that the legal principle of res iudicata was violated. Lastly, the Respondent deemed that the Claimant had allegedly mistreated the players.

7. On 2 July 2014, the Claimant presented his comments to the Respondent’s response and amended his initial claim. In this respect, the Claimant confirmed being of country B’s nationality and having received his 3 monthly outstanding salaries. Therefore, the Claimant requested compensation amounting to 8,500,000 representing the remaining value of the contract, i.e. 17 monthly salaries. With regard to the fact that the Claimant already lodged a claim in front of the Disciplinary Committee of the Football Association of country D, the Claimant argued that this complaint was totally different and that the object of the claim was not “the employment relationship between the parties”. Lastly, the Claimant rejected the allegations of mistreatment of players in its entirety.

8. On 21 July 2014, in its last comments in the matter at hand, the Respondent reiterated its previous statements of defence and added that the termination of contract “was lawful”. Finally, the Respondent specified the allegation of mistreatment of the players, explaining that the Claimant physically assaulted the players. In support of the latest allegations, the Respondent provided two statements each from of the latter’s assistant coach and of a player, respectively.

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 which Procedural Rules were applicable in the matter at hand. In this respect, the Single Judge acknowledged that the present dispute was submitted to FIFA on 14 February 2014, thus after 1 December 2012. Consequently, the Single Judge concluded that the 2012 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) was applicable to the matter at hand (cf. art. 21 of the Procedural Rules).

2. Subsequently, the Single Judge analysed which edition of the Regulations on the Status and Transfer of Players should be applicable as to the substance of the matter. In this respect, he referred, on the one hand, to art. 26 par. 1 and 2 of the 2012 edition of the Regulations on the Status and Transfer of Players, and on the other hand, to the fact that the present claim was lodged with FIFA on 14 February 2014. In view of the foregoing, the Single Judge concluded that the 2012 edition of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations) was applicable to the case at hand as to the substance (cf. art. 26 par. 1 and 2 of the Regulations).

3. The applicable Regulations having been established, the Single Judge went on to assess whether he was competent to hear the present matter. In this regard, the Single Judge remarked that, in its statements, the Respondent objected that the matter at hand was already brought forward in front of the Disciplinary Committee of the Football Association of country D, and consequently, it contested the competence of FIFA in the matter at hand on the basis of the principle of res iudicata.

4. In this respect, the Single Judge deemed it appropriate to briefly recall that on the basis of the principle of res iudicata, a decision-making body is not in a position to deal with the substance of a case in the event that another deciding body has already dealt with the same matter by passing a final and binding decision. Indeed, the parties to the dispute as well as the deciding authority are bound by the final and binding decision previously passed in the same affair.

5. In light of the above, the Single Judge deemed that, according to 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”, the Respondent carried, in casu, the burden of proof as he was claiming the existence of a res iudicata.

6. Equally, the Single Judge noted that the Respondent did not provide any evidence to prove the existence of a final and binding decision passed by another deciding body on the same matter and, moreover, the Claimant contested that the Disciplinary Committee of the Football Association of country D had dealt with an employment related matter between the parties.

7. Having said this, the Single Judge then referred to art. 3 par. 1 and 2 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, he is competent to deal with the matter at stake which concerns an employment-related dispute of an international dimension between a coach from country B and a club from country D.

8. His competence and the applicable regulations having been established, and entering into the substance of the matter, the Single Judge started his analysis by acknowledging the facts of the case and the arguments of the parties as well as the documents contained in the file.

9. In doing so and first of all, the Single Judge noted that, on 1 July 2013, the Claimant and the Respondent had concluded an employment contract (hereinafter: the contract) which was originally valid from 1 July 2013 until 30 June 2015 and which provided that the Claimant would receive from the Respondent a monthly salary of 500,000.

10. In continuation, the Single Judge remarked that, on the one hand, the Claimant had argued that the Respondent terminated the contract without just cause in written on 11 February 2014 and had consequently requested from the latter the payment of inter alia 8,500,000 as compensation representing the residual value of the contract, whereas, and on the other hand, the Respondent had claimed to have had had just cause to terminate the contract on the basis of the alleged mistreatment and physical assault of players by the Claimant.

11. In light of the above, the Single Judge deemed that he had to address the question of whether the contract was terminated by the Respondent and whether such termination had occurred with or without just cause.

12. In this respect, the Single Judge recalled that the Respondent had never contested having dismissed the Claimant and entered into negotiations in order to reach an amicable solution.

13. Considering the aforementioned and, in particular, bearing in mind that it remained undisputed that the contract was terminated by means of a written notification on 11 February 2014, the Single Judge resolved that, in casu, it could be safely assumed that the contractual relationship has de facto ended on the aforementioned date.

14. Having said this, the Single Judge went on to establish whether the contract was terminated by the Respondent with or without just cause.

15. In doing so, the Single Judge noted that the Respondent had argued in its reply to the claim that the termination of the contract was a necessity due to mistreatments and physical assaults towards the players by the Claimant. Furthermore, the Single Judge acknowledged two witness testimonies provided by the Respondent, which confirmed the aforementioned allegations.

16. Equally, the Single Judge recalled that the Claimant had contested the Respondent’s allegations in its entirety and consequently the latter’s entitlement to prematurely terminate the contract.

17. In light of the above, the Single Judge pointed out once again that, according to 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”, the witness testimonies submitted by the Respondent in support of the alleged physical assaults of players by the Claimant had been made by employees of the Respondent (i.e. an assistant coach and a registered player of the Respondent) and not by an independent witness.

18. In continuation, the Single Judge was eager to emphasise that only a breach or a misconduct of a certain severity may justify 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 with immediate effect. 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 must always only be an ultima ratio.

19. Bearing in mind the aforementioned, the Single Judge held that the witness testimonies provided by the Respondent could not be considered as sufficient evidence which would prove that the Claimant had effectively assaulted some players. Furthermore and in the event such fact could have been proven by the Respondent, the Single Judge deemed anyway that the latter could have taken more lenient measures other than the premature termination of the contractual relationship with the Claimant.

20. In view of the above and, in particular, bearing in mind that the Respondent had justified the termination of the contract on the basis of the mistreatment of the players by the Claimant, the Single Judge concluded that the dismissal of the Claimant had occurred without just cause. Consequently, the Single Judge decided that the contract had been breached by the Respondent.

21. Having established the above-mentioned, the Single Judge went on to assess the potential financial consequences of the breach of the contractual relationship by the Respondent.

22. In this respect and first of all, the Single Judge analysed the Claimant’s claim, i.e. his request of 8,500,000 corresponding to the remaining value of the contract.

23. In continuation, the Single Judge observed that the contract did not contain a clause related to compensation in the event that the Respondent would breach the contract. Equally, the Single Judge recalled that, pursuant to the contract, the Claimant was entitled to receive from the Respondent a total salary of 12,000,000, i.e. a monthly salary of 500,000, for the months between 1 July 2013 and 30 June 2015. Furthermore, the Single Judge stressed that it was undisputed that the Claimant had already received from the Respondent a sum of USD 3,500,000 at the time the latter had terminated its contractual relationship with the Claimant, i.e. on 11 February 2014.

24. Therefore, the Single Judge observed that, at the time the Respondent had unilaterally terminated the contract with the Claimant, the Respondent had already paid to the Claimant all the outstanding remuneration.

25. In continuation, the Single Judge went on to consider the amount of compensation that the Claimant was requesting following the Respondent’s premature termination of the contract without just cause.

26. In this respect, the Single Judge referred to his well-established jurisprudence and pointed out that, as a general rule, when establishing the amount of compensation payable to a coach by a club for having terminated their contractual relationship without just cause, any amount earned by the coach in question between the relevant termination and the date of expiry of the contract as originally concluded between the parties in their contract has to be taken into account and underlined that, although the Claimant was, in principle, entitled to receive compensation from the Respondent, the Claimant was also under the obligation to mitigate the loss he suffered as a result of said termination without just cause.

27. Therefore, the Single Judge held that the amount of 2,100,000 should be deducted ex aequo et bono from the residual value of his contract with the Respondent which amounted to 8,500,000 as the Claimant was in the obligation to mitigate the loss suffered from the termination of the contract without just cause. Consequently, the Single Judge came to the conclusion that the Respondent has to pay to the Claimant the total amount of 6,400,000 as compensation, i.e. the amount of 8,500,000 less the sum of 2,100,000.

28. Finally, the Single Judge referred to art. 25 par. 2 of the Regulations in combination with art. 18 par. 1 of the Procedural Rules, according to which, in proceedings before the Players’ Status Committee, including its Single Judge, costs in the maximum amount of CHF 25,000 are levied. The relevant provision further states that the costs are to be borne in consideration of the parties’ degree of success in the proceedings.

29. In respect of the above and taking into account that the claim of the Claimant has been partially accepted, the Single Judge concluded that the Respondent to bear the costs of the current proceedings before FIFA. Furthermore and according to Annexe A of the Procedural Rules, the costs of the proceedings are to be levied on the basis of the amount in dispute. On that basis, the Single Judge held that the amount to be taken into consideration in the present proceedings is below CHF 50,000. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 5,000.

30. In conclusion, in view of the circumstances of the present matter and taking into account that the matter did not pose any particular factual difficulty, the Single Judge determined the costs of the current proceedings to the amount of CHF 4,000. Consequently, the Single Judge of the Players’ Status Committee decided that the amount of CHF 4,000 has to be paid by the Respondent in order to cover the costs of the present proceedings.

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

1. The claim of the Claimant, Coach A, is admissible.

2. The claim of the Claimant, Coach A, is partially accepted.

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 6,400,000.

4. If the aforementioned total amount 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 A, are rejected.

6. The final costs of the proceedings in the amount of CHF 4,000 are to be paid by the Respondent, Club C, within 30 days as from the date of notification of the present decision as follows:

6.1. The amount of CHF 3,000 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 1,000 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 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. 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

For the Single Judge of the

Players’ Status Committee

Markus Kattner

Acting Secretary General

Encl. CAS directives