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 27 July 2016

Decision of the Single Judge of the Players’ Status Committee

passed in Zurich, Switzerland, on 27 July 2016,

by

Geoff Thompson (England)

Single Judge of the Players’ Status Committee,

on the claim presented by the coach

Coach X, from country X

as “Claimant”

against the club

Club A, from country A

as “Respondent”

regarding an employment-related contractual dispute

arisen between the parties.

I. Facts of the case

1. On an unspecified date, the Coach X, from country X (hereinafter: the Claimant) and the Club A, from country A (hereinafter: the Respondent) entered into an employment contract (hereinafter: the employment contract) valid for one year from 1 July 2013, according to which the Respondent hired the Claimant as “Head Coach of the First Football Team”. In this respect, the employment contract stipulated in clause IV that the Claimant was entitled to receive from the Respondent a signing fee of USD 880,000, payable in one instalment of USD 550,000 by 15 August 2013 as well as one instalment of EUR 330,000 by 1 January 2014. Furthermore, the employment contract entitled the Claimant to a monthly salary of USD 85,000 “for the entire duration of the contract (12 months)”. Lastly, according to clause IV “the 2nd Party [i.e. the Claimant] shall receive match victory bonus according to Club regulations”.

2. In addition, the employment contract stipulated that “[I]n case of dispute on this contract [i.e. the employment contract] or misinterpretation of its provision, both parties are committed to submit the matter to the Football Federation of country A and FIFA governing bodies. Decisions issued in this case shall be binding and irrevocable”.

3. On 1 July 2013, the parties concerned concluded an annex of employment contract (hereinafter: the annex), by means of which the Respondent agreed to pay a late payment penalty for the late payment of any instalment of the signing fee in the amount of USD 3,000 per day.

4. Equally, the parties concluded a bonus schedule (hereinafter: the bonus schedule), in accordance with which the Claimant was entitled to receive, inter alia, the following bonus payments:

“The League:

First place US$ 500.000 wining the league […]

Qualification for Championship: US$ 100.000 […]

The Cup

First place: US$ 200.000 wining The Cup”.

5. On 7 November 2014, the Claimant lodged a claim in front of FIFA against the Respondent, arguing that the latter had failed to pay the total amount of USD 1,961,000 as stipulated in the employment contract. In this regard, the Claimant explained that the Respondent allegedly failed to pay 8 monthly salaries amounting to USD 680,000 as well as outstanding remuneration for winning the League and qualifying for the Championship in accordance with the bonus schedule, in the amount of USD 600,000. Moreover, the Claimant requested “outstanding penalty payments of (USD 534.000 and USD 147.000) totalling USD 681.000”.

6. Consequently, the Claimant requested the total amount of USD 1,961,000 as well as interest at a rate of 5% per year, “where the due date are to be set at 15 March 2014, as this was the last date that a payment in relation to the salary was received, and the due date for the payment of the other outstanding amount based on the fine is 30 June 2014, being the end date of the contract between Mr X [i.e. the Claimant] and Club A [i.e. the Respondent]”.

7. In its reply to the claim, the Respondent argued that, in accordance with the employment contract, the Football Federation of country A was competent to deal with the matter in “first instance” and that FIFA was only competent in “second instance”. Moreover, the Respondent claimed that the Claimant had the obligation to seek for an amicable solution in the matter before lodging a claim.

8. In continuation, the Respondent argued having paid to the Claimant the total sum of USD 1,419,809.00, as follows:

“On 20 January 2014 […] USD 300,000 […] first part of first payment of the signing fee

On 9 February 2014 […] USD 335,000 […] second part of first payment of the signing fee & July 2013 Salary

On 19 February 2014 […] USD 330,000 […] second payment of the signing fee

On 24 November 2013 […] USD 85,000 […] August 2013 Salary

On 22 December 2013 […] USD 169,809 […] September and October 2013 Salaries

On 28 February 2014 […] USD 200,000 […] November and December 2013 Salary plus additional 30,000 USD as advance payment of January 2014”.

9. Furthermore, the Respondent alleged that the annex as well as the bonus schedule had been “falsified by the counsel of the claimant”. With regards to the bonus schedule, the Respondent provided a document entitled “Reward Regulations for Club A First and Olympic Football Teams 2013/2014” (hereinafter: the reward regulations), in accordance with which a head coach of the Respondent “in case of winning a championship, they will get rewards equal to players whose percentage of participation is 75% or higher”. In this respect, the Respondent claimed that the Claimant was only entitled to receive 119,500 (i.e. in dollar counter value of USD 31,780) with default interest of 5% as from the decision”. Equally, the Respondent acknowledged that the team had won the “Professional League and the Cup”.

10. Additionally, the Respondent claimed that according to the jurisprudence of the Players’ Status Committee, a penalty for late payment cannot be requested together with default interest.

11. On account of all the above, the Respondent deemed that the matter shall be declared inadmissible or, alternatively, that the Claimant is only entitled to receive the total amount of USD 480,000 as outstanding salaries as well as 119,5000 as bonus payments, plus interest as from the date of “the decision of the claim”.

12. In his replica, the Claimant reiterated his position. In this respect, the Claimant argued that FIFA is not an appeal court and deemed that FIFA is competent to deal with the matter at hand. In particular, the Claimant requested interest at a rate of 5% per year as from the relevant due dates of the instalments. Furthermore, the Claimant explained that the payment in the amount of USD 200,000 and allegedly

paid by the Respondent on 28 February 2014 referred to the bonus payment for the win of the Cup.

13. In its last position in the matter at hand, the Respondent reiterated its allegations.

***

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 7 November 2014. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2014; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 of the Procedural Rules). .

2. At this stage, the Single Judge remarked that in its statements, the Respondent referred to the employment contract, which stipulated inter alia that any arising disputes between the parties shall “submit the matter to the Football Federation of country A and FIFA governing bodies” and that “Decisions issued in this case shall be binding and irrevocable” and, hence, argued that the matter at hand should be remitted to the Football Federation of country A (hereinafter: the FF).

3. In this respect, and regardless of the fact that the relevant employment contract contains a reference to dispute resolution at national level, which reference, was worded in a rather vague manner in the sense that it merely refers to the Football Federation of country A and not to a specific national deciding body, the Single Judge referred to the content of art. 22 b) of the Regulations on the Status and Transfer of Players as well as to the respective well-established jurisprudence of the Players’ Status Committee according to which, in general, in employment-related disputes between a club and a coach that have an international dimension, i.e. the parties do not belong to the same country, both parties were entitled to refer the dispute to FIFA’s deciding bodies, unless an independent arbitration tribunal respecting the principle of equal representation of coaches and clubs with an independent chairman has been established at national level.

4. The Single Judge acknowledged that in the case at hand the Respondent had failed to prove that an independent arbitration tribunal in compliance with the requirements of the FIFA regulations has been established in Country A.

5. Therefore, and considering that no clear and specific arbitration clause was included in the relevant employment contract as well as taking into account the Respondent’s failure to provide any evidence proving that an independent arbitration tribunal which would comply with the requirements of the FIFA regulations has been established, the Single Judge held that the Respondent’s objection to the competence of FIFA to deal with the present matter has to be rejected.

6. 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 sake which concerns an employment-related dispute of an international dimension between a coach from country X and a club affiliated to the Football Federation of country A.

7. 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 recalled that the present claim was lodged with FIFA on 7 November 2014. In view of the foregoing, the Single Judge concluded that 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 (cf. art. 26 par. 1 and 2 of the Regulations).

8. 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.

9. In doing so, the Single Judge first noted that, on an unspecified date, the Claimant and the Respondent concluded an employment contract valid for one year from 1 July 2013 and which provided for the Claimant to receive from the Respondent a signing fee of USD 880,000, payable in one instalment of USD 550,000 by 15 August 2013 as well as one instalment of EUR 330,000 by 1 January 2014. Furthermore, the employment contract entitled the coach to a monthly salary of USD 85,000 “for the entire duration of the contract (12 months)”. Lastly, according to clause IV “the 2nd Party [i.e. the Claimant] shall receive match victory bonus according to Club regulations”.

10. In continuation, the Single Judge noted that, in his claim to FIFA, the Claimant alleged having concluded the bonus schedule with the Respondent, in accordance with which he was entitled to receive from the Respondent, inter alia, USD 500,000 for winning the league, USD 100,000 for qualifying for the Championship and USD 200,000 for winning the Cup. Moreover, the Claimant maintained that he was entitled to receive from the Respondent 8 monthly salaries amounting to USD 680,000 in accordance with the employment contract as well as USD 600,000 as bonus payments in accordance with the bonus schedule.

11. Equally, the Single Judge observed that, in its reply, the Respondent contested having concluded such bonus schedule and having already paid to the coach the total amount of USD 1,419,809 in accordance with the employment contract.

12. Having duly examined the argumentation and documentation put forward by both parties, the Single Judge analysed the agreements in question and emphasised that the employment contract as well as the bonus schedule contained the Respondent’s official logo well as the signatures of the same representatives. Even more, considering that the Respondent acknowledged having paid the amount of USD 200,000 to the Claimant on 28 February 2014, and the fact that it remained uncontested that the team won the “Cup” on 1 February 2014, the Single Judge deemed evident that such payment had been made on the basis of the bonus schedule.

13. At this stage, the Single Judge recalled, on the one hand, the Claimant’s allegation that the amounts of USD 680,000 corresponding to 8 monthly salaries as well as USD 600,000 corresponding to the bonus payments for winning the league and qualifying for the Championship remained outstanding. On the other hand, the Single Judge analysed once again the payment receipt as provided by the Respondent, by means of which the latter was not able to conclusively proof having paid such remedies in accordance with the employment contract and the bonus schedule.

14. Therefore, referring to art. 12 par. 3 of the Procedural Rules according to which any party claiming a right on the basis of an alleged fact shall carry the burden of proof, the Single Judge ruled that the claimed amounts remained outstanding and determined that in accordance with the basic legal principle of pacta sunt servanda, which in essence means that agreements must be respected by the parties in good faith, the Respondent has to pay to the Claimant the aforementioned amount of USD 680,000 and USD 600,000, respectively.

15. Turning his attention to the Claimant’s request for penalty payments amounting to USD 3,000 per day, the Single Judge deemed that such continuous interest for delayed payments amounting to USD 1,095,000 per year shall be considered excessive and, therefore, in accordance with the long-standing jurisprudence of the Players’ Status Committee, decided to award default interest at a rate of 5% p.a. on the amount of USD 680,000 as well as on the amount of USD 600,000 as from the date of claim.

16. As a consequence of all the above, the Single Judge ruled that the claim of the Claimant is admissible, partially accepted and that the Respondent has to pay to the Claimant outstanding remuneration in the amount of USD 1,280,000 together with 5% interest per year on the relevant amount as from 7 November 2014.

17. 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 and the 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 and are normally to be paid by the unsuccessful party.

18. On account of the above, and considering that the claim of the Claimant had been partially accepted, the Single Judge concluded that both parties had to bear the costs of the current proceedings before FIFA.

19. 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 in dispute in the present matter was over CHF 200,000, the Single Judge concluded that the maximum amount of costs of the proceedings corresponded to CHF 25,000.

20. In conclusion, and in view of the particular circumstances of the present matter, the Single Judge determined the costs of the current proceedings to the amount of CHF 20,000 which shall be borne by both parties.

***

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

1. The claim of the Claimant, Coach X, is admissible.

2. The claim of the Claimant, Coach X, is partially accepted.

3. The Respondent, Club A, has to pay to the Claimant, Coach X, within 30 days as from the date of notification of this decision, the amount of USD 1,280,000 as outstanding remuneration, plus interest at a rate of 5% per year on the said amount as from 7 November 2014 until the date of effective payment.

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

5. 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.

6. The final costs of the proceedings in the amount of CHF 20,000 are to be paid by both parties to FIFA, within 30 days as from the date of notification of the present decision, as follows:

a. The amount of CHF 5,000 has to be paid by the Claimant, Coach X. Given that the latter has already paid the amount of CHF 5,000 as advance of costs at the start of the present proceedings, the Claimant, Coach X, is exempted from such payment.

b. The amount of CHF 15,000 has to be paid by the Respondent, Club A, to the following bank account with reference to case nr.:

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 X, is directed to inform the Respondent, Club A, immediately and directly of the account number to which the remittance under point 3. above is 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