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 22 November 2016

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

passed in Zurich, Switzerland, on 22 November 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 dispute arisen between the parties.

I. Facts of the case

1. On 26 October 2015, the Coach A from country B (hereinafter: the Claimant) and the Club C from country D (hereinafter: the Respondent) signed an employment contract (hereinafter: the contract) valid as of the date of signature until 25 June 2016, for the position of assistant coach of the club.

2. As per art. III of the contract, the Respondent had to cover the costs of the international American school for the Claimant’s children and to provide the Claimant and his family with a maximum of four Business class flight tickets.

3. Pursuant to article IV of the contract, the Claimant was entitled to receive a monthly salary of USD 18,100 net, payable at the end of each month.

4. Article V (General Provisions) of the contract provided a “penalty for the termination of this contract, by the club [i.e. the Respondent], during the next 8 (Eight) months is established in the amount remaining to be paid until the end of the contract.

In case of non-payment by the 1st party [i.e. the Respondent] of 3 or more months’ salary the 2nd party [i.e. the Claimant] will be entitled to cancel the contract but he will maintain the right to receive the payment of the remaining amounts.

If the 1st party [i.e. the Respondent] terminates the contract before its due date then it shall provide a Business class air tickets for the 2nd party [i.e. the Claimant] and his family back to his country.

In case the 2nd party [i.e. the Claimant] terminates the contract prematurely, then he shall bear air-ticket cost for himself and his family unless the contract was terminated for a breach of the contract due to the 2nd party [i.e. the Respondent].”

5. The contract stated that “In case of any dispute between the two parties (Football Association of country D) and Federation International Football Association (FIFA) are the appropriate governing body to settle the dispute”.

6. On 11 February 2016, the Respondent announced on its official Twitter account that the head coach, Coach E, together with his team of assistant coaches, and the Respondent agreed to put an end to the contract, and subsequently, on 18 February 2016, that Mr F was named new head coach of the Respondent.

7. On 13, 18, 19, 20 and 21 February 2016, the Claimant wrote to the Respondent in order to underline that he was still bound by a valid employment contract with it, that no termination agreement had been signed by the parties yet, nor the Respondent had sent any termination letter to the Claimant, and that the message posted on its official Twitter account was not correct and was misleading. Moreover, the Claimant reminded the Respondent that he remained at its disposal as per the contract as well as that he reserved his rights to seek compensation because of the damages caused by his current situation. Finally, the Claimant urged the Respondent to comply with its contractual and economic obligations as per the contract, failing which the Claimant would terminate the contract and refer the matter to the relevant judicial body of FIFA.

8. On 22 February 2016, the parties concluded a termination agreement, which stipulated inter alia the following:

“C. The coach [i.e. the Claimant] has fulfilled all his contractual duties and obligations to the Club [i.e. the Respondent] (…). There are no contestations or complaints against the coach, his behaviour and his conduct in and off the pitch”;

“D. The club is in breach of its financial obligations vis-à-vis the coach. In fact, with reference to art. IV of the employment contract, the sole salary of the month of November 2015 (i.e. 18.100 $) was paid to the coach”.

9. The termination agreement further stipulated that “the club [i.e. the Respondent] expressly acknowledges that it has to pay to the coach [i.e. the Claimant]:

- A remaining amount of 18,100 $ NET related to the overdue salary of the month of December 2015;

- A compensation for the premature termination of the Employment Contract considering the serious image damages suffered by the coach [i.e. the Claimant] for loss of sport opportunities which is mutually established by the Parties in 108,600 $ NET.

Therefore, the club [i.e. the Respondent] shall pay the total amount of 126,700 $ NET to the coach [i.e. the Claimant], as follows:

- 63,350 $ NET no later than 30 March 2016;

- 63,350 $ NET no later than 15 May 2016.”

10. Art. 6 of the termination agreement provided that “Each party confirms and acknowledges that it has read and understood the present termination agreement, and that this agreement is signed voluntarily and by its duly authorised representatives”.

11. Art. 11 of the termination agreement stated that “In case of delay or non-payment of any of the amounts due under [point I.9 above], the coach [i.e. the Claimant] shall be entitled to claim all the remaining amounts indicated in article 5 of the Employment Contract before the relevant sports and ordinary judicial bodies.”

12. As per art. 15 of the termination agreement, “This Agreement shall be governed by, and construed and interpreted in accordance with the FIFA regulations and, additionally, Swiss law in order to fill any gap”.

13. The termination agreement also foresaw that the “club [i.e. the Respondent] shall provide the coach [i.e. the Claimant] and his family with Business class air tickets in order to go back to their home country”.

14. According to the termination agreement, “Disputes arising out of this termination agreement shall be subject, in first instance, to the exclusive jurisdiction of the relevant FIFA competent body, namely the FIFA Players Status Committee, pursuant to the relevant provisions of FIFA Regulations on the Status and Transfer of Players, or of the Court of Arbitration for Sport (CAS) in Lausanne, Switzerland”.

15. On 4 April 2016, the Claimant put the Respondent in default of payment of the first instalment of USD 63,650 as foreseen in the termination agreement, as well as the balance for the four flight tickets which were not booked in business class, thus granting the Respondent ten days to remedy the default, the failure of which would lead the coach to take legal actions.

16. On 1 June 2016, the Claimant lodged a complaint against the Respondent before FIFA, claiming that the latter did not comply with its contractual obligations insofar as the Claimant only received one monthly salary out of eight. Moreover, the Claimant sustained that the amount foreseen in the termination agreement had not been paid either.

17. Furthermore, the Claimant argued that the incorrect announcement of the mutual termination of the contract by the Respondent on its Twitter account and in the media, the appointment of the new head coach on 18 February 2016, as well as the non-payment of his salary for more than three months (i.e. December 2015, January and February 2016), entitled the Claimant to terminate the contract with just cause. However, despite the alleged repeated contractual breaches by the Respondent, the Claimant stressed out that he remained at the Respondent’s disposal to perform his duties.

18. In addition, the Claimant underlined that he agreed to sign the termination agreement, subject to the Respondent complying with the schedule of payment foreseen in the said agreement (cf. point I.9 above). In this regard, the Claimant maintained that the Respondent’s alleged failure to pay the instalments as set forth in the termination agreement resulted in the application of art. 11 of such agreement which, according to the Claimant, granted him the right to claim, in addition to the amounts indicated in the termination agreement, all the remaining amounts as stipulated in art. V of the contract.

19. With regard to the flight tickets in business class to be provided by the Respondent as per the termination agreement, the Claimant alleged that, on 22 February 2016, the Respondent sent four flight tickets via e-mail. However, the Claimant argued that the relevant flight tickets were booked in economy class, amounting to 4,314 for him and his wife and to 3,560 for both of his children. In this respect, the Claimant referred to the flight tickets paid to the head coach, Coach E, and his family in business (i.e. 10,093 per ticket) in order to substantiate the relevant amounts and to calculate the balance to claim to the club.

20. Consequently, the Claimant requested the total amount of USD 136,000, plus 5% interest p.a. as of 1 June 2016, broken-down as follows:

 USD 126,700 as the “remaining amount” of the contract corresponding to the outstanding salaries from December 2015 to February 2016 as well as the remaining salaries from March to June 2016, as per art. V of the contract and art. 11 of the termination agreement;

 32,498 as balance for the flight tickets in business class for the Claimant and his family.

The Claimant further requested that the Respondent bore the full costs of the present proceedings according to FIFA Procedural Rules.

21. On 2 August 2016, the Respondent’s reply was received, i.e. after the expiration of the time limit set by FIFA.

22. Upon FIFA’s request, the Claimant confirmed that, on 10 June 2016, he signed a contract with the club from country G, Club H, valid as of the date of signature until 31 December 2018, i.e. 30 months. The contract stated that the Claimant is entitled to a fixed-remuneration of EUR 20,000 per month, equivalent to USD 22,700.

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 1 June 2016. Consequently, the Single Judge concluded that the 2015 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. Subsequently, the Single Judge referred to art. 3 par. 1 and 2 of the Procedural Rules and confirmed that in accordance with art. 23 par. 1 and 4 in combination with art. 22 lit. c) of the 2016 edition of the Regulations on the Status and Transfer of Players, he is competent to deal with the matter at stake.

3. Furthermore, 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 2016 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 1 June 2016. In view of the foregoing, the Single Judge concluded that the 2016 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 (cf. art. 26 par. 1 and 2 of the Regulations).

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. At this stage, the Single Judge observed that the Respondent, in spite of having been invited to do so, had, for its part, failed to present its response to the claim of the Claimant within the relevant time limit set by FIFA, i.e. 29 July 2016. In fact, the reply of the Respondent was only received on 2 August 2016. As a result, bearing in mind the Players’ Status Committee’s constant jurisprudence in this regard and in application of art. 9 par. 3 of the Procedural Rules, the Single Judge decided not to take into account the reply of the Respondent and established that, in accordance with the aforementioned provision, he shall take a decision on the basis of those documents on file that were provided prior to the deadline set by FIFA, in casu, on the statements and documents presented by the Claimant.

6. In this respect and in a first instance, the Single Judge acknowledged that, on 26 October 2015, the Claimant and the Respondent concluded an employment contract valid as from the date of signature until 25 June 2016.

7. Equally, the Single Judge took note that, on 22 February 2016, the parties signed an agreement regarding the termination of the contract and, in particular, agreed upon the payment by the Respondent of the total amount of USD 126,700 payable in two instalments of USD 63,350, respectively due by 30 March 2016 and 15 May 2016.

8. Furthermore, the Single Judge observed that it had remained uncontested by the Respondent that the amount set forth in the termination agreement had remained unpaid. The Single Judge also noted that, on 4 April 2016, the Claimant put the Respondent in default for the non-payment of the first instalment, default notice which remained unanswered by the Respondent.

9. In view of the above, the Single Judge concluded that he did not find any valid reason or any sufficient evidence for the non-payment of the total amount of USD 126,700 and, therefore, it could be established that the Respondent had failed to pay to the Claimant the amount as agreed upon between the parties in the termination agreement. At this point, the Single Judge went on to deliberate the consequences of the failure of payment by the Respondent.

10. To this end, the Single Judge referred to art. 11 of the termination agreement which stipulates that “In case of delay or non-payment of any of the amounts due under [point I.9 above], the [Claimant] shall be entitled to claim all the remaining amounts indicated in article 5 of the Employment Contract before the relevant sports and ordinary judicial bodies.”

11. In this regard, the Single Judge was of the opinion that such clause implied that in case of a breach of the supplementary agreement, i.e. in case of non-payment of the relevant instalments within the stated time-limit, the employment contract becomes enforceable again and, therefore, the Claimant should be entitled to claim amounts, however solely based on the employment contract.

12. As a consequence, the Single Judge decided that the Claimant’s request for amounts deriving from the termination agreement should be rejected.

13. Subsequently, the Single Judge concurred that the Respondent had first of all to fulfil its obligations as per the employment contract, in accordance with the general legal principle of pacta sunt servanda. Consequently, the Single Judge decided that the Respondent must pay to the Claimant the remuneration that was outstanding at the time of the termination, i.e. 22 February 2016.

14. Based on the allegations and the documentation provided by the Claimant, and in the absence of the contrary by the Respondent, the Single Judge came to the conclusion that the Respondent was liable for the payment of USD 36,200, corresponding to the outstanding salary for December 2015 and January 2016.

15. In addition, taking into consideration the Claimant’s claim for interest and in accordance with his well-established jurisprudence, the Single Judge decided to award the Claimant interest at the rate of 5% p.a. as of 1 June 2016 over the said outstanding remuneration.

16. In continuation, the Single Judge decided that, taking into consideration the longstanding jurisprudence of the Players’ Status Committee, the Claimant was entitled to receive compensation for the Respondent’s breach in the contractual relationship with the Claimant.

17. In application of the relevant jurisprudence, the Single Judge held that it first of all had to clarify whether the pertinent employment contract contained any clause, by means of which the parties had beforehand agreed upon a compensation payable by the contractual parties in the event of breach of contract. In this respect, the Single Judge acknowledged that the contract contained the following provision, in its art. V, establishing that in case of repeated default of payment by the Respondent or in case of early termination of the contract by the Respondent, the Claimant was entitled to claim the residual value of the contract.

18. As a consequence to the above, the Single Judge was of the opinion that the calculation of any potential compensation would have to be assessed taking into consideration the jurisprudence of the Players’ Status Committee’s.

19. In doing so, the Single Judge first turned his attention to the remuneration and other benefits due to the Claimant under the existing contract. The Single Judge pointed out that the contract signed between the Claimant and the Respondent was to run for another 5 months, i.e. until 25 June 2016, after the termination of the contract occurred. Furthermore, the Single Judge understood that for this relevant period, the Claimant was entitled to receive a total salary of USD 90,500. Consequently, the Single Judge concluded that the amount of USD 90,500 served as the basis for the final determination of the amount of compensation for breach of contract.

20. In continuation, the Single Judge remarked that the Claimant had found new employment on 10 June 2016, for which he earned a monthly fixed-remuneration in the amount of EUR 20,000, equivalent to USD 22,700.

21. Consequently, in accordance with the constant practice of the Players’ Status Committee and the general obligation of the coach to mitigate his damages, the remuneration as indicated in the new employment contract shall be taken into account, on a pro rata basis, in the calculation of the amount of compensation for breach of contract.

22. In view of all of the above, the Single Judge decided that the Respondent had to pay the amount of USD 79,150 to the Claimant, which was considered by the Single Judge to be a reasonable and justified amount as compensation for breach of contract.

23. Furthermore, the Single Judge went on to examine the Claimant’s petition for the payment of the balance for the flight tickets in business class for the Claimant and his family members. Referring to art. III of the contract as well as the documentation submitted by the Claimant, the Single Judge decided to award the Claimant the balance for the flight tickets in business class for him, his wife and both of his children, amounting to 32,498.

24. In addition, as per the Claimant’s claim for interest and in accordance with his longstanding jurisprudence, the Single Judge granted the Claimant interest at the rate of 5% p.a. as of 1 June 2016 on the respective amount of USD 79,150 and 32,498.

25. 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.

26. 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 both parties had 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 was between CHF 100,001 and CHF 150,000. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 15,000.

27. As a conclusion, in view of the circumstances of the present matter, the Single Judge determined the costs of the current proceedings amounting to CHF 15,000. Consequently, considering that the claim had been partially accepted, the Single Judge of the Players’ Status Committee decided that the amount of CHF 5,000 had to be paid by the Claimant and the amount of CHF 10,000 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 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, outstanding remuneration amounting to USD 36,200, plus 5% interest p.a. on the said amount as from 1 June 2016 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 the present decision, compensation for breach of contract in the respective amount of USD 79,150 and 32,498, plus 5% interest p.a. on the said amounts as from 1 June 2016 until the date of effective payment.

4. If the aforementioned amounts, plus interests as established 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.

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

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

6.1 The amount of CHF 5,000 by the Claimant, Coach A, to FIFA. Given that the Claimant, Coach A, 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 the additional amount of CHF 2,000 as costs of the proceedings.

6.2 The amount of CHF 10,000 by the Respondent, Club C, to FIFA.

6.3 The abovementioned amounts as foreseen in points 6.1 and 6.2 have 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

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. and 3. 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