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 8 May 2017

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

passed in Zurich, Switzerland, on 8 May 2017,

by

Mr Raymond Hack (South Africa),

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 18 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 22 July 2015 until 30 June 2016 according to which the latter hired the Claimant as “Assistant Coach”.

2. According to article 5 of the contract, the Claimant was entitled to receive from the Respondent 12 monthly salaries of EUR 15,000 for the period from July 2015 to June 2016.

3. Moreover, clause 8 lit. a) of the contract stipulated that in case of termination of the contract without just cause and/or breach of the contract, “the first six months of the contract are guaranteed. The party breaching the contract during the first six months (20 July 2015 – 31 December 2015) shall pay the remainder of the value of the first year’s contract.

[…]

Payment of the indemnity shall be paid by the breaching party within 21 days of such breach occur. If the party fails to pay the compensation a 5% interest p.a. will be added until the final payment is made”.

4. On 30 November 2015, the Respondent and the Claimant concluded an agreement for termination of the contract (hereinafter: the termination agreement), according to which the Claimant was entitled to receive from the Respondent the following amounts :

“ – EUR 15,000 only corresponding to the outstanding salary of [the Claimant] for the month of October, payable upon signature of this Agreement;

- EUR 15,000 only corresponding to compensation for the early termination of the employment contract, payable until 29 February 2016;

- EUR 15,000 only corresponding to compensation for the early termination of the employment contract, payable until 30 March 2016;

- EUR 30,000 only corresponding to compensation for the early termination of the employment contract, payable until 30 April 2016”.

5. Furthermore, article 3 of the termination agreement stated that, “in the event that any of the aforementioned payments is not made by [the Respondent] to [the Claimant] on time or in full, [the Respondent] will be in breach of its obligations under this Agreement [i.e. the termination agreement] and [the Claimant] will have the right to request from [the Respondent] for the payment of all the unpaid salaries for the full period of the contract ending 30 June 2016. [The Claimant] will have the right to refer the matter to FIFA competent bodies for a formal decision after 30 days from the agreed payment date which is listed in the agreement”.

6. Finally, in accordance with clause 4 of the termination agreement, “any dispute arising from or related to the present Agreement shall be governed by the FIFA regulations and shall be submitted exclusively to the FIFA competent bodies for a formal decision”.

7. On 12 May 2016, the Claimant lodged a claim in front of FIFA against the Respondent, alleging that the latter had partially breached the termination agreement without just cause.

8. In this respect, the Claimant alleged that the Respondent had failed to pay the second and the third instalments in accordance with the termination agreement in the total amount of EUR 30,000.

9. In continuation, the Claimant explained that, by means of a letter dated 11 April 2016, he reminded the Respondent of the allegedly outstanding payment setting a time limit of ten days to remedy the default, but that no reply or payment was received.

10. Consequently, the Claimant requested from the Respondent the total amount of EUR 120,000 pertaining to 8 monthly salaries, plus interest at a rate of 5% p.a. in accordance with article 3 of the termination agreement as well as legal and proceeding costs to be borne by the Respondent.

11. In its reply to the claim lodged against it, the Respondent acknowledged having paid the Claimant the first instalment in the amount of EUR 15,000 in accordance with the termination agreement and contested the allegations of the Claimant in its entirety.

12. Firstly, the Respondent contested the applicable law to the present dispute invoking that Swiss law shall be applicable to the extent that it is not covered by FIFA regulations as the termination agreement does not specify if any national law applies in the international matter at hand.

13. Secondly, the Respondent alleged that all amounts claimed by the Claimant on the basis of the termination agreement are incorrect and that in the case a compensation should be allegedly due to the Claimant, the starting date of the calculation of the interest should be 30 April 2016, i.e. the date of breach of the termination agreement.

14. Finally, the Respondent provided FIFA with a different version of the termination agreement.

15. In its replica, the Claimant contested all the allegations of the Respondent and reiterated its initial claim. In this respect, the Claimant claimed that the Respondent provided FIFA with a fabricated and falsified version of the termination agreement and, therefore, submitted to FIFA the original version.

16. In its duplica, the Respondent accepted the original version of the termination agreement provided by the Claimant, however, maintained all its previous arguments.

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) was applicable to the matter at hand. In this respect, considering that the present matter was submitted to FIFA on 12 May 2016, the Single Judge concluded that the 2015 edition of the Procedural Rules is applicable in the matter at hand (cf. art. 21 of the 2015 and 2017 editions 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 12 May 2016 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 2015 and 2016 editions 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 4 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 and a coach of an international dimension.

4. 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.

5. In doing so and to begin with, the Single Judge noted that, on 18 June 2015, the Respondent and the Claimant concluded the contract valid from 22 July 2015 until 30 June 2016, by means of which the latter was entitled to receive a monthly salary of EUR 15,000.

6. Subsequently, the Single Judge acknowledged that on 30 November 2015, the above-mentioned parties concluded the termination agreement for early termination of the contract, by means of which, the Claimant was entitled to receive from the Respondent as compensation, the following amounts:

“ – EUR 15,000 only corresponding to the outstanding salary of [the Claimant] for the month of October, payable upon signature of this Agreement;

- EUR 15,000 (…) payable until 29 February 2016;

- EUR 15,000 (…) payable until 30 March 2016;

- EUR 30,000 (…) payable until 30 April 2016”.

7. In continuation, the Single Judge focussed his attention to the content of article 3 of the termination agreement which stated inter alia that, “in the event that any of the aforementioned payments is not made by [the Respondent] to [the Claimant] on time or in full, [the Respondent] will be in breach of its obligations under this Agreement [i.e. the termination agreement] and [the Claimant] will have the right to request from [the Respondent] for the payment of all the unpaid salaries for the full period of the contract [i.e. the contract] ending 30 June 2016”.

8. On the one hand, the Single Judge recalled that it remained undisputed that the Respondent paid the first instalment in the amount of EUR 15,000. However, the Claimant maintained being entitled to receive the outstanding compensation corresponding to his salaries for the remainder of the full period of the contract in accordance with article 3 of the termination agreement, indicating that the Respondent had not yet paid the second, third and fourth instalments that fell due respectively on 29 February 2016, 30 March 2016 and 30 April 2016 in accordance with the termination agreement.

9. On the other hand, the Single Judge remarked that the Respondent, for its part, had challenged the applicable law to the present dispute and contested all amounts claimed by the Claimant. However, the Single Judge referred to clause 4 of the termination agreement and considered that the Respondent did not put forward any valid arguments in support of its position, and decided to reject such arguments. Furthermore, the Single Judge noted that the Respondent initially provided FIFA with a different version of the termination agreement but finally acknowledged the validity of the copy submitted by the Claimant.

10. Turning his attention to the content of article 3 of the termination agreement and taking into account the above-mentioned circumstances, the Single Judge highlighted that this provision and its effects are applicable to the matter at hand since the Respondent failed to pay on time and in full the amounts stipulated in the termination agreement to the Claimant.

11. In other words, the Single Judge considered that the Respondent had breached its contractual obligations towards the Claimant, who was therefore contractually entitled to receive from the Respondent the salaries for the remaining period of the contract, i.e. until 30 June 2016, in accordance with article 3 of the termination agreement.

12. Bearing in mind the aforementioned and the basic legal principle of pacta sunt servanda, which in essence means that agreements must be respected by the parties in good faith as well as bearing in mind the content of the above-mentioned clause and the fact that the condition for the payment of the remaining salaries had in casu been met, the Single Judge decided that the Respondent had breached its contractual obligations towards the Claimant and should, as a consequence, be liable to pay to the Claimant the amount corresponding to his remaining salaries in accordance with article 3 of the termination agreement. Furthermore, the Single Judge considered that the payment of EUR 15,000 that had already been made by the Respondent had to be deducted from the total amount.

13. In conclusion, the Single Judge decided that the claim of the Claimant is partially accepted and held that the Respondent has to pay to the Claimant the total amount of EUR 105,000 as compensation and that any further claims lodged by the Claimant are rejected.

14. In addition, with regard to the Claimant’s request related to the payment of interest at a rate of 5% p.a. on the amount claimed, the Single Judge decided that the Respondent must pay to the Claimant interest at a rate of 5% p.a. over the outstanding amount of EUR 105,000 as from 12 May 2016 until the date of effective payment.

15. Finally, as regards to the claimed legal costs, the Single Judge referred to art. 18 par. 4 of the Procedural Rules as well as to its longstanding and well-established jurisprudence, in accordance with which no procedural compensation shall be awarded in proceedings in front of the Players’ Status Committee. Consequently, the Single Judge decided to reject the Claimant’s request relating to legal costs.

16. 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, including its 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 (cf. art. 18 par. 1 of the Procedural Rules).

17. In respect of the above, and taking into account that the Claimant’s claim was partially accepted, the Single Judge concluded that both the Claimant as well as the Respondent have to bear a part of the costs of the current proceedings before FIFA.

18. 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 100,001 the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 15,000.

19. In conclusion, and considering the particularities of the present matter, the Single Judge determined the costs of the current proceedings to the amount of CHF 15,000. Furthermore, and in line with his aforementioned considerations and taking into account the degree of success, the Single Judge decided that the amount of CHF 5,000 has to be paid by the Claimant and the amount of CHF 10,000 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 EUR 105,000 as compensation as well as 5% interest p.a. on the said amount as from 12 May 2016 until the date of effective payment.

3. If the aforementioned sum, plus interest, is not paid within the stated time limit, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.

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

5. The final costs of the proceedings in the amount of CHF 15,000 are to be paid by both parties to FIFA, within 30 days as from the date of notification of the present decision, as follows:

5.1 The amount of CHF 5,000 has to be paid by the Claimant, Coach A. Given that the latter has already paid the amount of CHF 3,000 as advance of costs at the start of the present proceedings, the Claimant, Coach A, shall pay an additional amount of CHF 2,000 as costs of proceedings.

5.2 The amount of CHF 10,000 has to be paid by the Respondent, Club C to FIFA.

5.3 The abovementioned amounts in points 5.1 and 5.2 have to be paid to FIFA to the following bank account with reference to case nr.: XXX

UBS Zurich

Account number 366.677.01U (FIFA Players’ Status)

Clearing number 230

IBAN: CH27 0023 0230 3666 7701U

SWIFT: UBSWCHZH80A

6. The Claimant, Coach A, is directed to inform the Respondent, Club C, immediately and directly of the account number to which the remittance under point 2 above is to be made and to notify the Single Judge of 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

Omar Ongaro

Football Regulatory Director

Encl. CAS directives