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 26 January 2016

Decision of the Single Judge of the

Players´ Status Committee

passed in Zurich, Switzerland, on 26 January 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 a contractual dispute between the parties

I. Facts of the case

1. On 1 January 2013, the Coach A from country B (hereinafter: the Claimant) and the Club C from country D (hereinafter: the Respondent) concluded an employment contract (hereinafter: the contract), valid from the date of its signature until 30 June 2015 and under the terms of which the coach was hired as “coach”.

2. Clause 1.2 of the contract stipulated that “the coach [i.e. the Claimant] performs his activity as a coach, which consists in organising the training sessions with the players, under the supervision of the head coach”.

3. According to clause 2 of the contract, the Claimant has the following obligations among others:

“2.1.6 Strictly carry on the requirements of the statutory documents and other documents from FIFA, UEFA, Football Association of country D, league of country D;

2.1.7 The coach [i.e. the Claimant] is obliged to take part in the games, trainings, meetings, practices, conferences, analysis of the games, and other activities with the participation of the team and the team coaches;

2.1.10 Get certified; […]”.

4. According to clause 6 of said contract, the Claimant was entitled to receive from the Respondent a monthly remuneration of 200,000, payable “in two instalments, the first at the end of the first half of the month, and the second one at the end of each month”.

5. On 1 January 2013, the parties signed an annex to the contract (hereinafter: the annex), according to which the salary stipulated in clause 6 of the contract was net and fixed in the annual amount of EUR 360,000, payable in 12 monthly instalments. Moreover, the Claimant was entitled to receive bonuses and other benefits among others.

6. Clause 7.2 of the contract called “Termination“, stipulated the following: “[T]he parties agree that in case the coach [i.e. the Claimant] does not obtain the sport license corresponding to his UEFA category that proves his necessary qualification for the club´s [i.e. the Respondent] purposes, the contract will be terminated in accordance with art. 77 of the Labour Code of country D and the coach will not be entitled to any compensation”.

7. Clause 8.4 of the contract in combination with clause 8.2 of the annex specified that in case of unilateral termination of the contract by the Respondent without one of the reasons stipulated in the contract and while considering that the Claimant was in compliance with his obligations, the Claimant will be entitled to a compensation equivalent to the remuneration stipulated in the annex until the expiry of the contract.

8. Finally, according to clause 9.2 of the contract, “in case of dispute between the parties, the Dispute Resolution Chamber of the Football Association of country D will be the competent body, and can subsequently be heard by other bodies in accordance with the Football Association of country D and FIFA”.

9. On 21 February 2014, the Claimant lodged a claim in front of FIFA against the Respondent for breach of contract, claiming the total amount of EUR 720,000.

10. In this respect, the Claimant explained that on 23 January 2014 the Respondent communicated to the Claimant the termination of the contract with effect as from 31 January 2014, in accordance with clause 7.2 of the contract, maintaining that the Claimant had “no valid UEFA license”. Further to his dismissal, the Claimant maintained to have tried to solve the matter amicably and, in this respect, to have sent to the Respondent two letters on 24 January 2014 as well as on 30 January 2014 respectively. According to the Claimant, his lawyer also sent to the Respondent a copy of his UEFA Coach license, as well as a copy of the Certificate issued by the Football Association of country B (hereinafter: the Football Association of country B).

11. Therefore and according to the Claimant, the Respondent unilaterally breached the contract without just cause and, as a consequence, in accordance with clause 8.2 of the annex, the Respondent must pay compensation from the alleged date of the breach until 30 June 2015, in the total amount of EUR 540,000. Additionally, the Claimant also requested as compensation and in line with the FIFA Regulations and art. 337 of the Swiss Code of Obligations, the payment of the amount of EUR 180,000, equivalent to 6 monthly salaries as well as the reimbursement of the legal fees.

12. In its response to the claim lodged against it, the Respondent firstly alleged the lack of competence of FIFA to decide on the present dispute as the Claimant was employed by the Respondent since 2009 as a “fitness trainer”. In this respect, although the wording of the contract did not specify the activities of the Claimant, the latter was hired by the Respondent as a fitness trainer. The Respondent further argued that after the termination of the contract, the latter found a new employment contract with the club from country E, Club F, exactly for the same position as “fitness trainer”.

13. Furthermore, the Respondent claimed the incompetence of FIFA to hear the present dispute, arguing that the Football Association of country D’s National Dispute Resolution (hereinafter: the Football Association of country D’s National Dispute Resolution) was the competent body to hear the matter at hand as stipulated in clause 9.2 of the contract.

14. The Respondent provided a copy of the Football Association of country D’s National Dispute Resolution Regulations which was approved by a decision of the Executive Committee of the Football Association of country D on 2 December 2013.

15. In this regard, article 3.1 of the Football Association of country D’s National Dispute Resolution Regulations established the competence of the Football Association of country D’s National Dispute Resolution for disputes involving coaches: “clubs, players, coaches, players’ agents and other football subjects, in accordance with Football Association of country D’s Regulations on the status and transfer of players, can lodge a complaint to DRC”. Additionally, article 13 of the Football Association of country D’s National Dispute Resolution provided that “[T]he Chamber shall consider and resolve the following disputes: a) on violation of the procedure and conditions of football player´s and coach´s registration, transfer contracts, employment contracts with the football players and coaches”.

16. Moreover, article 7 and article 8 of the Football Association of country D’s National Dispute Resolution Regulations established the DRC composition:

“Art. 7 Chamber Composition

1. The Chamber consists of:

a) Chairman, Vice-Chairman elected by the rules of art. 8 of the present regulations;

b) 10 representatives of professional football players proposed by the players unions by the rules set in article 8 of the present regulations;

c) 10 representatives of professional football clubs recommended by the Leagues in accordance with article 8 hereof.

Art. 8 The Procedure for the Chamber Constitution by the Representatives of Professional Football Players and Football Clubs

1. Ten seats for the representatives of the football clubs shall be distributed as follows: 5 seats for the representatives of football clubs of the country D’s first division, 2 seats for the representatives of football clubs of the National Football League, 1 seat for the representatives of football clubs of the Professional Football League, 1 seat for representative futsal and 1 seat for the representative of women football;

2. The representatives of professional football clubs to the Chamber are nominated by the decision of the highest governance body of the correspondent League or by approval of the Football Association of country D’s President by the decision of full-time acting collegial body of administration;

4. The representatives of the football players to the Chamber may be recommended by the decision of the superior body of the association (union) of the professionals union, registered as a legal entity in the territory of country D’s Federation subject to any of the following conditions: - Entering to such an association (union) of country D’s professional union and professional union, recognized by FIFPro; - Recognition of such a Union by FIFPro.

Art. 8.1 Procedure of elections of the Chambers´ Chairman and the Chambers´ Vice-Chairman

1. The list of candidates for the position of the Chambers´ Chairman in the amount of 5 persons and the candidates for the position of the Chambers´ Vice Chairman in the amount of 5 persons are confirmed by the Football Association of country D’s Executive Committee taking into consideration the opinion of the football subjects”.

17. Furthermore, article 46 provided that: “The Chamber makes its decisions by a simple majority vote at the premise (…) In the event of a tie vote, the chairman shall have the casting vote”.

18. With regard to the possibility of appealing decisions, article 53 of the Football Association of country D’s National Dispute Resolution Regulations provided that:

1. “The decision of the DRC can only be appealed to PSC within 5 working days following the receipt of the decision in full;

2. The decision of the PSC can be appealed to the Court of Arbitration for Sports in Lausanne within 21 calendar days following the receipt of the decision”.

19. As to the substance of the matter at hand, the Respondent maintained that the Claimant failed to provide a valid UEFA coaching license as indicated in clause 2.1.6 and clause 2.1.10 of the contract, art. 81 of the country D’s Labour Code, UEFA Club Licensing Regulations as well as Football Association of country D’s Club Licensing Regulations. Therefore, according to clause 7.2 of the contract, it was essential for the Respondent to be provided with such certification. The Respondent also referred to the fact that in the previous employment agreements concluded with the Claimant, there was no reference to this obligation to be in possession of a UEFA license for the Claimant and it was not stipulated as a valid reason to terminate the relevant employment agreements. Furthermore, the Respondent argued that the Claimant was not in possession of said license since the beginning of the season and therefore was not allowed to be in the technical zone during the games. In this regard, the Claimant provided a letter sent to the Football Association of country D on 19 September 2013 emphasising that “due to the fact that the coaches only have the certificates for the coaching activity they are not allowed to the technical zone during the official matches, and as a result the coaches cannot be near the team neither during the match nor in the breaks, and they are force to be on the tribunes like ordinary spectators”.

20. Consequently, the Respondent was of the opinion that the Claimant only provided the required UEFA license after the termination of the contract, as established in the certification sent by the Football Association of country B dated 27 January 2014. The Respondent also considered suspicious that the Claimant´s license number was“2333” and the one corresponding to the other coaches of the staff that lodged also a claim against the Respondent were number “2334” and “2335”. As a result, the Respondent considered that he terminated the contract with just cause according to clause 7.2 of the contract and therefore that the Claimant was not entitled to any compensation.

21. Alternatively, the Respondent argued that, in the unlikely event that the FIFA PSC would come to the conclusion that the Respondent terminated the contract with just cause, the penalty clause included in the contract shall be applied excluding the possibility to add further amounts or penalty whatsoever. Additionally, the Respondent maintained that the amount set in the penalty clause should be reduced considering the unilateral nature of the penalty clause, the negligence of the Claimant and the reduction of the alleged damage due to the signature of a new employment contract of the Claimant with the Club F from country E.

22. On 22 July 2015, the Claimant submitted his comments regarding the Respondent’s reply and firstly stated, that in accordance with the wording of the contract it was clearly stipulated that the Claimant was acting as a coach. Furthermore, the Claimant explained that the competence of the Football Association of country D’s National Dispute Resolution was not mandatory for the parties and did not grant a fair procedure in accordance with the FIFA Regulations. Therefore, the Claimant deemed that FIFA was competent to hear the present dispute. Additionally, the Claimant held that the position of the Respondent was not consistent, having alleged the termination of the contract due to the lack of the UEFA Coach license.

23. With regard to the supposed lack of the UEFA license, the Claimant maintained that he was in possession of said license as proved in his initial claim. The Claimant also deemed that the Respondent acted in bad faith as it never informed the Claimant of this alleged breach of the contractual obligations before terminating the contractual relationship. Moreover, the Claimant provided an email from the Respondent dated 28 January 2014 confirming the reception of the requested UEFA license and in which it explained to seek for a confirmation from the Football Association of country B regarding the veracity of the documents before paying any compensation. Finally, according to the Claimant, the true reasons for his dismissal was mainly the dismissal of the entire staff.

24. In its final comments on 2 November 2015, the Respondent reiterated its previous allegations and emphasised that FIFA was not competent to hear the present dispute. In this respect, the Respondent enclosed an additional witness statement from an interpreter working for the Respondent during the contractual relationship with the Claimant, and confirming that the Claimant was acting as a “Fitness Coach”.

25. The Respondent reiterated that the Football Association of country D’s National Dispute Resolution should be the competent body to decide on the present dispute.

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 21 February 2014. Consequently, the Single Judge concluded that the 2012 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. article 21 of the Procedural Rules).

2. Subsequently, the Single Judge referred to article 3 par. 1 and 2 of the Procedural Rules and confirmed that in accordance with article 23 par. 1 and 3 in combination with article 22 lit. c) of the 2015 edition of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations), he would be, in principle, competent to deal with employment-related disputes between a club or an association and a coach of an international dimension.

3. In this regard, the Single Judge was eager to underline that the question of his competence to hear the present case must be examine in view of the fact that the Respondent argued that the Claimant was employed as a “fitness trainer”.

4. At this stage, the Single Judge paid close attention to the terms of the contract and, in particular, to the content of clause 1.2 which stipulates the following: “the coach [i.e. the Claimant] performs his activity as a coach, which consists in organising the training sessions with the players, under the supervision of the head coach”.

5. The Single Judge was eager to stress that the duties as described above are clearly the ones of a coach. In light of the above, the Single Judge had no doubt that the contract at the basis of the present dispute was concluded in order to acquire the services of the Claimant as a coach as a consequence, he would be, in principle, competent to deal with the matter at stake, which concerns an employment dispute between a coach from country B and a club from country D.

6. However, the Single Judge acknowledged that the Respondent, with reference to the second part of article 22 lit. c) of the Regulations, deemed that the Football Association of country D’s National Dispute Resolution (hereinafter: the Football Association of country D’s National Dispute Resolution) arbitration tribunal was competent to deal with the present case and not FIFA. In this respect, the Single Judge took note that the Respondent argued that the Football Association of country D’s National Dispute Resolution complied with the requirements of FIFA in terms of constitution, independency and fair proceedings, and that the parties had agreed in article 9.2 of the contract that, “in case of dispute between the parties, the Dispute Resolution Chamber of the Football Association of country D will be the competent body, and can subsequently be hear by other bodies in accordance with the Football Association of country D and FIFA”.

7. In this regard, the Single Judge also observed that the Claimant argued that the arbitration tribunal in question did not comply with the requirements provided in article 22 lit. c) of the Regulations and therefore that FIFA was competent to decide on the present dispute.

8. As a consequence, the Single Judge started by acknowledging that, despite being entitled to seek redress before an ordinary national court of law, the parties did not dispute that the matter at hand was brought to an alternative dispute resolution process within football.

9. Taking into account the above, the Single Judge emphasised that it was necessary to ascertain who is competent to decide on the issue within the football-related dispute resolution system. In other words, the competence of a national deciding body on the one side and FIFA on the other must be determined.

10. In this regard, the Single Judge referred to article 22 c) of the Regulations, according to which he is competent to deal with a matter such as the one at hand unless an independent arbitration tribunal, guaranteeing fair proceedings exists at national level.

11. In view of the above, the Single Judge went on to examine the documentary evidence presented by the Respondent, i.e. the copy of the Football Association of country D’s National Dispute Resolution Regulations which were approved by a decision of the Executive Committee of the Football Association of country D on 2 December 2013.

12. In this regard, the Single Judge acknowledged that according to article 3.1 and article 13 of the Football Association of country D’s National Dispute Resolution Regulations, coaches are allowed to lodge complaints in front of the Football Association of country D’s National Dispute Resolution in the event of employment related disputes.

13. Furthermore, and referring to the composition of the Football Association of country D’s National Dispute Resolution, the Single Judge noted that in accordance with article 7 of the Football Association of country D’s National Dispute Resolution, the chamber is composed of a Chairman, Vice-Chairman, 10 representatives of professional football players proposed by the players unions, and 10 representatives of professional football clubs recommended by the leagues. In this regard, according to article 8 of the Football Association of country D’s National Dispute Resolution, the representatives shall be distributed as follows:

a. For the football clubs: 5 seats for the representatives of football clubs of the country D’s first division, 2 seats for the representatives of football clubs of the National Football League, 1 seat for the representatives of football clubs of the Professional Football League, 1 seat for representative futsal and 1 seat for the representative of women football; The representatives of professional football clubs to the Chamber are nominated by the decision of the highest governance body of the correspondent League or by approval of the Football Association of country D’s President by the decision of full-time acting collegial body of administration;

b. For the representatives of the football players: to the Chamber may be recommended by the decision of the superior body of the association (union) of the professionals union, registered as a legal entity in the territory of country D’s Federation subject to any of the following conditions: (1) Entering to such an association (union) of country D’s professional union and professional union, recognized by FIFPro; (2) Recognition of such a Union by FIFPro.

14. Moreover, the Single Judge remarked that according to article 46 of the Football Association of country D’s National Dispute Resolution, the chamber takes its decisions by a simple majority vote at the premise. Only in the event of a tie, the chairman’s vote shall break a tie. Finally, according to article 53 of the Football Association of country D’s National Dispute Resolution, the decisions can be appealed to the Court of Arbitration for Sport in Lausanne.

15. Consequently, and taking into consideration the entire structure and functioning of the Football Association of country D’s National Dispute Resolution, the Single Judge deemed that the Respondent was able to prove that the Football Association of country D’s National Dispute Resolution meets the minimum procedural standards for independent arbitration tribunals guaranteeing fair proceedings as laid down in article 22 c) of the Regulations.

16. Finally, the Single Judge was eager to emphasise that the contract at the basis of the present dispute contains an arbitration clause in favour of national arbitration. In particular, article 9.2 of the said contract makes explicit reference to the Football Association of country D’s National Dispute Resolution (cf. point II. 3. above).

17. In view of all the above, the Single Judge came to the conclusion that the Respondent’s objection to the competence of FIFA to deal with the present matter has to be accepted and that the Single Judge of the Players´ Status Committee is not competent, on the basis of article 22 lit. c) of the Regulations, to consider the present matter as to the substance.

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

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

2. The final costs of the proceedings in the amount of CHF 12,500 are to be paid by the Claimant, Coach A within 30 days as from the date of notification of the present decision. 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, has to pay the amount of CHF 7,500 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

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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