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 28 September 2016

Decision of the Single Judge of the

Players´ Status Committee

passed in Zurich, Switzerland, on 28 September 2016,

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 17 June 2015, the Coach of Country B, Coach A (hereinafter: the Claimant) and the Club of Country D, Club C (hereinafter: the Respondent), concluded an employment contract (hereinafter: the contract), valid from 19 June 2015 until 17 June 2017, according to which the Claimant was hired as “head coach”.

2. Article 2 of the contract stated inter alia that, the Claimant was entitled to receive from the Respondent a “net monthly amount of EUR 13,750 (thirteen thousand seven hundred and fifty Euro) which equivalence in Currency E according to the official fixed exchange rate of the National Bank of Country D for the Currency E to the Euro 1.95583 = EUR 1 is 26 892.66 and the Parties hereto agree that the PLAYER shall receive the specified equivalence in Currency E.

The basic monthly remuneration under this clause is determined on the basis of the official fixed exchange rate of the National Bank of Country D for the Currency E to the EURO 1.95583 = EUR 1. In case of a change of the official fixed exchange rate for the Currency E to the Euro remuneration will be altered accordingly (clause 2.4).

During the term of this agreement the CLUB [i.e. the Respondent] shall be obliged to pay to the OFFICER [i.e. the Claimant] bonuses as follows:

- net bonus in the amount of EUR 50 000 (fifty thousand Euro) payable within 5 (five) business days after signing of this agreement to a bank account in EURO notified by the OFFICER to the EMPLOYER [i.e. the Respondent];

- net bonus in the amount of EUR 50 000 (fifty thousand Euro) payable not later than 15 July 2016 provided that this agreement has not been terminated as of such date (clause 2.5).

The OFFICER shall be entitled to receive premiums and/or bonuses as per the CLUB’s Internal Regulations, and the CLUB shall be obliged to pay the OFFICER such premiums and/or bonuses under the conditions of the said regulations (clause 2.6).

The monthly remuneration shall be paid by the 15th day of the month following for which such remuneration is due. Remunerations shall be paid in cash or via bank transfer, as explicitly specified by the OFFICER” (clause 2.7).

3. In accordance with clause 4 of said contract, the Claimant was also entitled to receive from the Respondent an apartment for the duration of the contract at the expense of the employer with a monthly rent price up to 500, two air tickets City

F – City G - City F per each calendar year of the term of this contract at a maximum price of EUR 500 each and a car at the expense of the employer terms for a monthly rent price up to 700.

4. Moreover, article 2.9 of the contract stipulated that, “[t]he period of the notice of termination in case of termination of this contract of employment for both parties is in accordance with Art. 326 of the Labour Code [i.e. Law of Country D]”.

5. Finally, according to article 5 of the contract, “[f]or all matters that are not stipulated herein the provisions of the Labour Code, its application regulations and the effective legislation shall apply, as well as the respective FIFA, UEFA and Football Association of Country D regulations”.

6. On 13 November 2015, the Claimant lodged a claim with FIFA against the Respondent for having allegedly breached the contract without just cause and prior notice. In this regard, the Claimant alleged having been dismissed orally during a meeting held on 13 August 2015 by the General Director and the Sports Director of the Respondent and that on the same day, his apartment was assaulted at night by supporters who tried to break into the house and fireworks were thrown, what made him leave his apartment and City F.

7. In continuation, the coach explained that the parties failed to reach an amicable settlement for the early termination of the contract regarding compensation in the amount of EUR 90,000 to be paid immediately to the Claimant.

8. Moreover, the Claimant claimed that, subsequently to his dismissal, the Respondent hired a new coach, as of 14 August 2015 in order to replace him after his dismissal, which was contested by the Respondent.

9. The Claimant also explained, that by means of a letter dated 24 August 2015, it reminded the Respondent of the allegedly compensation amount of EUR 90,000 to be paid, setting a time limit of 2 days to remedy the default, although no written settlement agreement was concluded by the parties.

10. Consequently, the Claimant requested from the Respondent compensation for breach of contract as follows: EUR 137,500 corresponding to the salaries for the first season from mid-September 2015 to mid-June 2016 (10 months); EUR 50,000 corresponding to the net bonuses until the end of the contract; EUR 165,000 corresponding to the outstanding salaries until the end of the contract; EUR 3,252.40 corresponding to the sum of 4 airplanes return tickets to Country B; EUR 5,632 corresponding to 22 months of rent (22 x EUR 256); EUR 7,854 corresponding to 22 months of car rental (22 x EUR 357); EUR 82,500 as additional compensation corresponding to 6 monthly salaries (according to Swiss law) and the gross up of all the above mentioned net amounts and the payment of its difference (in order for the coach to be able to comply with the future requests of the competent tax authorities).

11. In its reply to the claim, the Respondent rejected the allegations made by the Claimant in its entirety. In this respect, firstly, the Respondent contested the competence of FIFA over the present dispute alleging that the parties accepted the exclusive jurisdiction of the Civil Courts of Country D to decide upon any employment-related dispute arisen between them, in accordance with article 19 para. 1 of the Code of Civil procedure in conjunction with art. 360 para. 1 of the Labour Code.

12. In continuation, the Respondent rejected all amounts requested by the Claimant arguing that only a termination of the contract by mutual consent was proposed to the latter, subject to his acceptance.

13. In this regard, the Respondent contested the fact that the contract had been unilaterally terminated without just cause and with immediate effect as it [i.e. the Respondent] has “never manifested such behaviour, nor has produced any instruments in this regard” and held that, the employment relationship was not terminated and the contract was still valid, binding and ongoing after 13 August 2015.

14. Notwithstanding the above, the Respondent alleged that it would retain 24 August 2015 as the official date of the unilateral termination of the contract by the Claimant, as the latter was the party who breached the contract by leaving the country, being absent from work as of 17 August 2015 and in violation with his contractual duties.

15. Therefore, the Respondent deemed that the Claimant was not entitled to any compensation whatsoever and alleged that it had no other option than to employ Mr H, an acting head coach, among the assistant coaches until the Respondent could find a new head coach and in order to facilitate the communication between the coaching staff and the players.

16. On 20 April 2016, the Claimant presented his replica in the matter at hand. On this occasion, he rejected the allegations made by the Respondent, reiterated his initial claim and requested an additional amount of EUR 208,544 as a gross up amount based on the Income Tax of Country B.

17. In its duplica, the Respondent maintained its previous allegations, reiterated its position and requested, in addition, the costs of proceedings to be borne by the Claimant.

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 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: Procedural Rules) were applicable to the matter at hand. In this respect, considering that the present matter was submitted to FIFA on 13 November 2015, the Single Judge concluded that the 2015 edition of the Procedural Rules is applicable in 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 (hereinafter: “the Regulations”) should be applicable as to the substance of the matter. In this respect, he confirmed that the present matter was submitted to FIFA on 13 November 2015 and, therefore, concluded that the 2015 edition of the Regulations is applicable in the matter at hand as to the substance (cf. art. 26 par. 1 and par. 2 of the Regulations).

3. With regard to his competence, the Single Judge confirmed that on the basis of art. 3 par. 1 and 2 of the Procedural Rules in connection with art. 23 par. 1 and 3 as well as art. 22 lit. c) of the 2015 edition of the Regulations, he was competent to deal with the present matter since it concerned an employment-related dispute between a club or an association and a coach of an international dimension.

4. However, the Single Judge remarked that in its statements of defence, the Respondent contested the competence of FIFA. On account of the above, it invoked a lack of jurisdiction of FIFA over the present dispute and was of the opinion that the parties, while signing the contract, accepted the exclusive jurisdiction of the Civil Courts of Country D to decide upon any employment-related dispute arisen between them, in accordance with art. 19 para. 1 of the Code of Civil procedure in conjunction with art. 360 para. 1 of the Labour Code.

5. Nevertheless, the Single Judge wished to emphasize that, in accordance with article 5 of the contract, FIFA’s competence regarding the present dispute and the applicability of FIFA’s Regulations were confirmed and that the Respondent’s objection to the competence of FIFA to deal with the present matter has to be rejected.

6. 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. However, the Single Judge emphasised that in the following considerations he will refer only to the facts, arguments and documentary evidence that he considered pertinent for the assessment of the matter at hand.

7. In doing so and to begin with, the Single Judge acknowledged that, on 17 June 2015, the parties concluded an employment contract, valid from 19 June 2015 until 17 June 2017, according to which the Claimant was hired as “head coach”.

8. In continuation, the Single Judge noted that, on the one hand the Claimant alleged having been dismissed orally during a meeting held on 13 August 2015 with the General Director and the Sports Director of the Respondent without prior notice and with immediate effect. On account of the above, the Claimant deemed that he was entitled to compensation for early termination of contract.

9. On the other hand, the Single Judge noticed that, for the purpose of its defence, the Respondent claimed that only a termination of the contract by mutual consent was proposed to the Claimant, subject to his acceptance. Furthermore, the Respondent was of the opinion that eventually the Claimant terminated the contract unilaterally by leaving the country on 24 August 2015.

10. Having duly examined the argumentation and documentation put forward by both parties, the Single Judge first of all turned his attention to the meeting evidently held between the parties on 13 August 2015. In this regard, the Single Judge recalled that the Claimant alleged having been dismissed orally and unilaterally, which was contested by the Respondent.

11. At this stage, the Single Judge referred to art. 12 par. 3 of the Procedural Rules according to which any party claiming a right on the basis of an alleged fact shall carry the burden of proof.

12. In doing so, the Single Judge thoroughly analyzed the documents on file and, in particular, the contents of the documentation submitted by the Claimant. In this regard, the Single Judge deemed that in casu the Claimant did not provide any conclusive evidence in order to establish the circumstances of the early termination of the contract by the Respondent.

13. In continuation, the Single Judge emphasized that, for its part, the Respondent claimed that the Claimant left his apartment and City F on 24 August 2015 without prior notice to the Respondent. Nonetheless, the Single Judge equally took note that the Claimant held having been assaulted by supporters of the club in the night of 13 August 2013. In this regard, the Claimant provided photos apparently documenting the alleged assault, however, he did not provide any further convincing evidence indicating such assault and even less a level of severity which would cause an intolerable situation for the Claimant to fulfil his contractual duties.

14. As a result, considering the legal principle of burden of proof as well as the argumentation and documentation presented by both parties, the Single Judge deemed that the Claimant terminated the contract unilaterally by leaving the country on 24 August 2014.

15. Having said that, 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. A unilateral premature termination of an employment contract can always only be an ultima ratio.

16. In view of the above, the Single Judge was of the opinion that the Claimant, despite the undisputed fact that the parties negotiated to terminate the contract by mutual agreement, did not have just cause to prematurely terminate the contract with the Respondent and that, therefore, the Claimant had breached such contract without just cause.

17. Therefore, the Single Judge decided to reject the claim of the Claimant.

18. Lastly, the Single Judge referred to art. 30 par. 5 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.

19. In this respect, the Single Judge reiterated that the claim of the Claimant is rejected. Therefore, the Single Judge decided that the Claimant has to bear the entire costs of the current proceedings in front of FIFA.

20. 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 exceeding CHF 200,000, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000.

21. In conclusion and in view of the circumstances of the present matter, the Single Judge determined the costs of the current proceedings to the amount of CHF 5,000, which shall be borne by the Claimant.

***

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

1. The claim lodged by the Claimant, Coach A, is rejected.

2. The final costs of the proceedings in the amount of CHF 5,000 are to be paid by the Claimant, Coach A. Given that the latter already paid an advance of costs in the amount of CHF 5,000 at the start of the present proceedings, the Claimant, Coach A, is exempted to pay the cited amount.

***

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