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 11 October 2016

Decision of the Single Judge of the Players’ Status Committee

passed in Zurich, Switzerland, on 11 October 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 7 January 2014, 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 1 January 2014 until 31 December 2016.

2. In accordance with points 2 and 3 of the contract, the Claimant was entitled to receive from the Respondent a monthly remuneration of 3,500 (= approx. EUR 815) net payable until the 10th day of each month.

3. In accordance with point 4.3 of the contract the Claimant was entitled to a bonus amounting to 60 for each point that the team would achieve during the 2013/2014 season.

4. According to point 4.4 of the contract the Respondent was obliged to provide to the Claimant “necessary funds to cover travel expenses”.

5. According to point 4.5 of the contract the Respondent was obliged to cover the Respondent´s travel expenses for commuting in order to perform his duties as main coach.

6. In accordance with point 7 of the contract the Claimant would coordinate his work with the Respondent´s executive committee and a Private Company of Country B.

7. In accordance with point 8 of the contract the Respondent had the possibility to terminate the employment relationship until 30 June 2014 in case the team would not stay in 2nd division.

8. On 6 October 2014, the Claimant lodged a claim in front of FIFA against the Respondent requesting the payment of the total amount of EUR 8,402.75 which was composed as follows:

(1) 14,000 (=EUR 3,371.20) as 4 monthly outstanding salaries corresponding to March, April, May and June 2014;

(2) 1,140 (=EUR 274.51) as bonus for 19 points that the team achieved (cf. point 4.2 of the contract);

(3) 4,915.92 (=EUR 1,183.75) corresponding to 3 flight tickets;

(4) 400 (=EUR 96.32) as travel expenses to go to training and to meetings with the club´s officials;

(5) 10,000 (=EUR 2,405.10) as moral damages;

(6) EUR 71,87 as other expenses (post and translations);

(7) EUR 1,000 as legal fees.

9. In this respect, the Claimant explained that after the conclusion of the contract and after a short period of time the Respondent stopped fulfilling its financial obligations. Moreover, the Claimant argued that the Respondent hired a new coach even though the contract between the Claimant and the Respondent was still in force.

10. Furthermore, the Claimant further alleged that the Respondent terminated the contract, by means of an undated letter, with effect from 30 May 2014 and based on point 7 of the contract.

11. Notwithstanding the above, the Claimant stated having sent a letter to the Respondent, on 30 June 2014, by means of which he ended the employment relationship and requested the payment of the allegedly outstanding amount of EUR 7,330.88.

12. In its reply to the claim, the Respondent claimed that the Claimant´s requests are unfounded since it had already paid to him all its contractual obligations.

13. The Claimant reacted rejecting the Respondent´s position and stating that the latter did not present any documentary proof supporting its allegations. The Claimant reiterated all his previous statements and in particular that the Respondent did not pay him any of the outstanding amounts.

14. The Respondent did not present any further position or comments.

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 6 October 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 in principal competent body to decide on the present dispute involving a Coach of Country B and a club affiliated to the Football Association of Country D regarding outstanding remuneration and compensation based on an employment contract.

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 6 October 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 7 January 2014, the Claimant and the Respondent concluded the contract which was valid from 1 January 2014 until 31 December 2016.

6. Moreover, the Single Judge took note that the Claimant argued that, on 30 May 2014 the Respondent terminated the contract without just cause by means of an undated letter sent by the latter to the Claimant. Furthermore, the Claimant alleged that the Respondent replaced him by a new coach and failed to fulfil its financial obligations towards him.

7. Equally, the Single Judge observed that the Respondent did not contest having terminated the contract on 30 May 2014, however, alleged that the Claimant´s requests are unfounded since it fulfilled all of its contractual obligations without providing further specifications.

8. In this regard, the Single Judge noted that during the course of the investigation of this matter, the Respondent did not present any evidence proving the alleged payments of outstanding remuneration as agreed in the contract.

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 keen to underline that in accordance with the general legal principle of pacta sunt servanda, which in essence means that agreements must be respected by the parties in good faith, the Respondent should have paid to the Claimant his remuneration as agreed in the contract.

11. 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 undated letter sent by the Respondent to the Claimant.

12. 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.

13. 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 points 2 and 3 of the contract, the salaries of March, April, May and June 2014 were outstanding. On the other hand, the Single Judge reiterated that the Respondent limited itself to state having paid all of its contractual obligations without clarifying which remuneration or amounts and without presenting any documentary evidence to support its allegation.

14. In this regard, the Single Judge referred to the content of point 3 of the contract, pursuant to which the parties established that monthly salaries would be paid until the 10th day of each month.

15. 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 10,500 related to the salaries of the months of March, April and May 2014.

16. Furthermore, the Single Judge focused his attention to the Claimant´s request for bonuses amounting to 1,140. In this respect, the Single Judge referred to point 4.3 of the contract which provides a bonus amounting to 60 for each point that the team would achieve during the 2013/2014 season.

17. At this stage, the Single Judge reiterated that the Respondent did not present any evidence of having paid the bonuses request by the Claimant. Therefore, the Single Judge concluded that the Claimant´s request for bonuses should be accepted.

18. In continuation, the Single Judge focused his attention to the Claimant´s request for three flight tickets amounting to 4,915.92. In this regard, the Single Judge acknowledged that according to point 4.4 of the contract the Respondent agreed to provide the Claimant with the necessary amounts to cover travel expenses.

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

20. In view of the above, the Single Judge accepted the Claimant´s request for an amount of 4,915.92.

21. The Single Judge focused his attention to the Claimant´s request for 400 as travel expenses.

22. Following the same line of the previous considerations, the Single Judge decided to accept such request since it was contractually agreed (i.e. point 4.5 of the contract) and the Respondent did not present evidence proving its payment to the Claimant.

23. At this stage, the Single Judge noted that the Claimant requested an amount of EUR 71.87 as other expenses (i.e. translation and post). In this respect, the Single Judge decided to reject such request since the requested expenses were not contractually agreed.

24. In continuation, the Single Judge turned his attention to the Claimant’s request for the monthly salary of June 2014 amounting to 3,500 in accordance with the salary agreed by the parties in point 2 of the contract.

25. In this respect, the Single Judge observed that the termination of the contract by the Respondent without just cause occurred on 30 May 2014 and that in principle the Claimant would be entitled to a compensation equivalent to the residual value of the contract. However, the Single Judge pointed out that in accordance with the legal principle “ultra petita” the Claimant is not entitled to perceive an amount higher than the one requested.

26. Moreover, the Single Judge observed that the Claimant did not work for any other team within the duration of the contract with the Respondent.

27. Consequently, the Single Judge decided that the Respondent must pay the amount of 3,500 to the Claimant as compensation for breach of contract.

28. Furthermore, the Single Judge took note that the Claimant requested an amount of 10,000 as moral damages.

29. In this respect, the Single Judge analysed the documentary evidence presented by the Claimant and concluded that there were insufficient to grant the requested amount as moral damages.

30. Finally and with regard to the Claimant’s request for legal costs, the Single Judge decided to reject such request in accordance with article 18 par. 4 of the Procedural Rules as well as the Players’ Status Committee longstanding jurisprudence.

31. 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 16,955.92 as outstanding remuneration as well as the amount of 3,500 as compensation for breach of contract.

32. 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.

33. 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 up to CHF 50,000. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 5,000.

34. 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 5,000 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 amount of 16,955.92 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 this decision, the amount of 3,500 as compensation.

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

5. If the aforementioned amount is 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.

6. The final costs of the proceedings in the amount of CHF 5,000 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 4,000 has to be paid to FIFA to the following bank account:

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 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 article 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