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

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 26 October 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 its date of signature until 30 May 2016, according to which the latter hired the Claimant as “Professional Football Coach”.

2. According to the annexe of the contract entitled “Football Coach Employment Contract Schedule”, the Claimant was entitled to receive from the Respondent a monthly salary of USD 118,750 until 30 May 2016.

3. On 1 June 2016, the Respondent and the Claimant concluded a settlement agreement (hereinafter: the settlement agreement) in order for the parties to settle the outstanding remuneration and according to which the Claimant was entitled to receive from the Respondent a total amount of USD 592,380, payable as follows:

- “USD 150,000 due on 1 June 2016 (bank transfer);

- USD 242,380 due on 1 September 2016 and not later than 8 September 2016. The payment will be against cheque no 226 drawn on the National Bank of Country D;

- USD 200,000 due on 10 November 2016 and not later than 17 November 2016. The payment will be against cheque no 227 drawn on the National Bank of Country D”.

4. Furthermore, article 4.1 of the settlement agreement stated that “[i]n the event [the Respondent] fails to pay any of the instalments within the agreed due dates as set out in clause 4 above [i.e. point I.3 above], the overdue amount shall be immediately considered payable and [the Claimant] shall immediately accomplish with the payment of the total remuneration due in such occasion. In this case, a fine of 10%, plus interest will accrue on the full amount outstanding at 12% annual rate from the due date until the date of payment”.

5. On 20 January 2017, the Claimant lodged a claim in front of FIFA against the Respondent, alleging that the latter had partially breached the settlement agreement without just cause.

6. In this respect, the Claimant alleged that, on 1 June 2016 he received from the Respondent the amount of USD 150,000, however, the latter had failed to pay both outstanding instalments in the amounts of USD 242,380 and USD 200,000 respectively.

7. In continuation, the Claimant explained that, by means of a letter dated 28 August 2016, the Respondent requested from the Claimant a deadline extension until 5 October 2016 in relation with the payment of the second instalment in the amount of USD 242,380 initially due on 8 September 2016, which the Claimant accepted to grant. However, according to the Claimant, the Respondent failed to comply with the new deadline.

8. Consequently, the Claimant requested from the Respondent the amounts of USD 242,380 and USD 200,000, plus interest at a rate of 5% p.a. on the said amounts as from the relevant due dates until the date of effective payment, the amount of USD 44,238 as penalty, plus interest at a rate of 5% p.a. as from the date of issuance of the decision rendered by FIFA.

9. In spite of having been invited to do so, the Respondent did not reply to the claim lodged against it.

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 20 January 2017, the Single Judge concluded that the 2017 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 20 January 2017 and, therefore, concluded that the 2016 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 4 as well as art. 22 lit. c) of the 2016 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 26 October 2015, the Claimant and the Respondent concluded the contract valid from the date of its signature until 30 May 2016, according to which the Claimant was hired by the Respondent as “Professional Football Coach”.

6. Subsequently, the Single Judge acknowledged that on 1 June 2016, the above-mentioned parties concluded the settlement agreement by means of which in its article 4, they agreed upon remuneration to be paid to the Claimant in the total amount of USD 592,380, as follows:

a. “USD 150,000 due on 1 June 2016 (bank transfer);

b. USD 242,380 due on 1 September 2016 and not later than 8 September 2016. The payment will be against cheque no 226 drawn on the National Bank of Country D;

c. USD 200,000 due on 10 November 2016 and not later than 17 November 2016. The payment will be against cheque no 227 drawn on the National Bank of Country D”.

7. In continuation, the Single Judge focused his attention to the content of article 4.1 of the settlement agreement which stated inter alia that if, “[the Respondent] fails to pay any of the instalments within the agreed due dates as set out in clause 4 above [i.e. point II. 6 above], the overdue amount shall be immediately considered payable and [the Claimant] shall immediately accomplish with the payment of the total remuneration due in such occasion. In this case, a fine of 10%, plus interest will accrue on the full amount outstanding at 12% annual rate from the due date until the date of payment”.

8. At this stage, the Single Judge recalled that it remained undisputed that the Respondent paid the first instalment in the amount of USD 150,000 in accordance with article 4 lit. a) of the settlement agreement. However, the Claimant maintained being entitled to receive the outstanding amounts of USD 242,380 and USD 200,000 respectively, plus interest at a rate of 5% p.a. on the said amounts as from the relevant due dates, indicating that the Respondent had not yet paid the second and third instalments of the outstanding remuneration that fell due respectively on 9 September 2016 and 18 November 2016.

9. Equally, the Single Judge noted that the Claimant deemed that in accordance with article 4.1 of the settlement agreement, he was entitled to a penalty fee corresponding to 10% of the amount of USD 442,380 as well as interest at a rate of 5% p.a. as from the date of issuance of the decision rendered by FIFA.

10. Moreover, the Single Judge remarked that the Respondent, for its part, had never submitted its position to the claim lodged against it by the Claimant, in spite of having been invited to do so. In this way, the Single Judge held that the Respondent renounced to its right of defence and, thus, accepted the allegations of the Claimant.

11. Furthermore, as a consequence of the aforementioned considerations, the Single Judge concurred that in accordance with art. 9 par. 3 of the Procedural Rules he shall take a decision upon the basis of the documents already on file, in other words, upon the statements presented and documents provided by the Claimant.

12. Turning his attention to the settlement agreement, the Single Judge emphasised that, in accordance with its article 4, it remained undisputed that the Claimant is contractually entitled to receive from the Respondent the remaining amount of USD 442,380 as outstanding remuneration.

13. Equally, the Single Judge concluded that, considering the single payment of the first instalment in the amount of USD 150,000 made to the Claimant, the Respondent had partially breached its contractual obligations towards the Claimant and should, as a consequence, be liable to pay the amount of USD 42,380 corresponding to the penalty fee in accordance with article 4.1 of the settlement agreement.

14. 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 contents of the above-mentioned provisions and the fact that the conditions for the payment of the outstanding remuneration had in casu been met, the Single Judge decided that the Respondent must pay the Claimant the amount of USD 442,380 as outstanding remuneration and the amount of USD 44,238 as penalty fee in accordance with articles 4 and 4.1 of the settlement agreement.

15. In relation with the Claimant’s request for interest at a rate of 5% p.a. on the outstanding amounts of USD 242,380 and USD 200,000 as well as on the amount of USD 42,380 corresponding to the penalty fee, the Single Judge decided to grant 5% interest on the outstanding remuneration as of the relevant due dates until the date of effective payment. In addition, in regards to the Claimant’s request for a 5% interest rate p.a. on the amount corresponding to the penalty fee, the Single Judge highlighted that such contractual interest is to be rejected, as he finds that no interest is due over a late payment penalty.

16. In this respect, the Single Judge deemed appropriate to emphasise that an interest rate on a penalty fee, although it has been contractually agreed between the parties, is considered, in accordance with the longstanding practice of the Player’s Status Committee, as a double punishment.

17. 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 USD 442,380 as outstanding remuneration, plus interest as follows :

- 5% p.a. over the amount of USD 242,380 as from 9 September 2016 until the date of effective payment;

- 5% p.a. over the amount of USD 200,000 as from 18 November 2016 until the date of effective payment,

as well as the amount of USD 44,238 as penalty.

18. 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).

19. 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.

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 over CHF 200,001, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000.

21. 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 25,000. 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 10,000 has to be paid by the Claimant and the amount of CHF 15,000 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 USD 442,380 as outstanding remuneration, plus interest as follows:

- 5% p.a. over the amount of USD 242,380 as from 9 September 2016 until the date of effective payment;

- 5% p.a. over the amount of USD 200,000 as from 18 November 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 this decision, the amount of USD 44,238 as penalty.

4. If the aforementioned sums (points 2 and 3) are 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.

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

6. The final costs of the proceedings in the amount of CHF 25,000 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 10,000 has to be paid by the Claimant, Coach A, to FIFA. Given that the Claimant, Coach A, has already paid the amount of CHF 5,000 as advance of costs at the start of the present proceedings, the Claimant, Coach A, shall pay an additional amount of CHF 5,000 as costs of proceedings.

6.2 The amount of CHF 15,000 has to be paid by the Respondent, Club C, to FIFA.

6.3 The abovementioned amounts in points 6.1 and 6.2 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

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 above are 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