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

Mr Geoff Thompson (England),

Single Judge of the Players’ Status Committee,

on the claim presented by

Fitness Coach A

as “Claimant”

against the club

Club B, Country C

as “Respondent”

regarding an employment-related contractual dispute

arisen between the parties.

I. Facts of the case

1. On 1 January 2012, the Fitness Coach A (hereinafter: the Claimant) and the club of Country C, Club B (hereinafter: the Respondent) entered into a contract (hereinafter: the 1st contract) valid from the date of its signature until 31 December 2012, according to which the Respondent hired the Claimant as a “Fitness Coach”.

2. The 1st contract stipulated in clause fourth c) that the Claimant had to “prepare the football team physical fitness to play in the competitions that the first party [i.e. the Respondent] decides”.

3. Pursuant to the 1st contract, the Claimant was entitled to receive from the Respondent a monthly salary of “USD 4,000 + USD 100” as well as “the salary of December 2012 after signing the contract”.

4. On 1 January 2013, the Claimant and the Respondent concluded another employment contract called “CONTRACT OF PROFESSIONAL FOOTBALL FITNESS COACH” (hereinafter: the 2nd contract) valid from the date of its signature until 31 December 2013 and under the terms of which the parties decided to extend their relationship for another football season.

5. According to art. 1 “OBJECT OF THE CONTRACT” of the 2nd contract, the Respondent committed the Claimant as “Fitness Coach”. Equally, art. 2 “FUNCTIONS” of the 2nd contract provided that the Respondent engaged the Claimant as “Fitness Coach […] under the responsibility of the Head Coach”.

6. The 2nd contract stipulated in art. 5 that the parties “agreed for an amount of USD 80,000 (US Dollars eighty thousands) as a total Contract Amount to be paid as follows

- An advance payment of USD 15,000 (USD Fifteen thousands) to be paid up on the signature of the Contract [i.e. the 2nd contract];

- An amount of USD 15,000 (USD Fifteen thousands) to be paid on May 1st, 2013;

- The remaining balance of USD 50,000 to be paid on monthly instalments of USD 5.000 (USD five thousands) per month effective January 2013 for 10 (ten) months”.

Furthermore, the 2nd contract stipulated that the monthly salary of USD 5,000 had to be paid “before 7th of the month”.

7. The 2nd contract stipulated that “the club [i.e. the Respondent] will take in charge the totality of the expenses of accommodation and of the cost whish [sic!] shall not exceed 800 USD per mon4h [sic!]”.

8. Furthermore and according to art. 10 of the employment contract, the parties agreed that ”the early break of the contract […] will have the effect of returning the indebted club of damages […] compencations [sic!] corresponding to he mnntlhy [sic!] fixed salary multiplied by sic (6) months of contract […] Coverage of the airplane ticket return for 2 person3 [sic!] on the airplane company of Fitness Coach A [i.e. the Claimant] choic [sic!]”.

9. On 27 March 2014, the parties concluded another agreement (hereinafter: the agreement) according to which the Respondent was obliged to pay to the Claimant the total sum of USD 51,000 in four equal instalments of USD 12,750 on 15 April, 15 May, 15 June and 15 July 2014, respectively. Also in the agreement, the Claimant is identified as “Fitness Coach”.

10. On 9 December 2014, the Claimant lodged a claim in front of FIFA against the Respondent, arguing that the latter had breached their contractual relationship. In this respect, the Claimant argued that the Respondent terminated the 2nd contract on 18 April 2013, by means of a letter of termination.

11. The Claimant explained that the Respondent neither paid the salary of November 2012 in accordance with the 1st contract nor the salaries of the 2nd contract. The Claimant further stated that the Respondent did not comply with the agreement and, therefore, that the Respondent was obliged to respect the 2nd contract.

12. Consequently, the Claimant requested from the Respondent outstanding salary of November 2012 in the amount of USD 4,000 based on the 1st contract, the amount of USD 80,000 corresponding to the residual value of the 2nd contract, the reimbursement in USD of Currency D 3,500 for the rent of March 2013, the reimbursement in USD of Currency D 2,725 for his return flight, the reimbursement of EUR 100,50 for his train ticket as well as USD 6,000 as damages for late payment.

13. On 24 February 2015, FIFA referred the coach to the content of art. 6 par. 1 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) and informed him that “FIFA does not appear to be competent to deal with claims lodged by fitness coaches”.

14. However, the Claimant insisted on 8 April 2015 to have a formal decision from FIFA in this matter. In particular, the Claimant deemed that he was a party in the sense of art. 6 par. 1 of the Procedural Rules since he held an UEFA “B” coach diploma. The Claimant was also of the opinion that the Procedural Rules refers to the term “coach” without specifying if it refers specifically to “head, assistant or fitness coach”. As a result of the aforementioned, the Claimant deemed that FIFA is competent to deal with the present dispute.

15. In its reply dated 26 January 2016, the Respondent requested FIFA to suspend the matter as they were willing to solve the issue amicably with the Claimant.

16. On 8 February 2016, the Claimant underlined that the parties did not reach any amicable settlement and requested FIFA to pass a decision.

17. In spite of having been asked to do so by FIFA, the Respondent did not provide its last position in the matter at hand.

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 referred to art. 21 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2015). Consequently, and since the present matter was submitted to FIFA on 9 December 2014, the Single Judge concluded that the 2014 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the Procedural Rules).

2. Subsequently, the Single Judge remarked that according to art. 3 par. 1 of the Procedural Rules in combination with art. 23 par. 1 and art. 22 lit. c) of the Regulations on the Status and Transfer of Players (edition 2016; hereinafter: the Regulations) he is in principle competent to deal with employment-related disputes between a club or an association and a coach of an international dimension. In this regard, the Single Judge was eager to underline that the question of his competence to hear the present matter must however be tackled in view of the fact that the contracts at the basis of the dispute were concluded between, on the one hand, the Claimant, who is referred to as a “Fitness Coach” under both the relevant employment contracts, and, on the other hand, the club of country C, Club B.

3. With the foregoing in mind, the Single Judge also recalled the provisions of art. 6 par. 1 of the relevant applicable Procedural Rules, which establishes that “[P]arties are members of FIFA, clubs, players, coaches or licensed match and players’ agents”. Thus, in neither art. 6 par. 1 of the Procedural Rules nor art. 22 c) of the Regulations or any other provision in any of FIFA’s regulations is there a basis to establish FIFA’s competence to hear disputes involving fitness trainers.

4. Having said that, the Single Judge paid close attention to the argumentation of the Claimant, who had alleged that in spite of the terms of the relevant employment contracts which provided that he was employed as a fitness trainer, he had in fact been hired by the Respondent as a coach.

5. In this regard, the Single Judge determined that in accordance with the rule of burden of proof mentioned under art. 12 par. 3 of the Procedural Rules which provides that “any party claiming a right on the basis of an alleged fact shall carry the burden of proof”, it undoubtedly fell upon the Claimant to prove that he was in fact exercising the duties of a coach and that he could thus be considered as a party in front of FIFA in the sense of art. 6 par. 1 of the Procedural Rules. Moreover, the Single Judge found that the Claimant had not provided any evidence whatsoever proving that he was working as a coach in the sense of art. 6 par. 1 of the Procedural Rules for the Respondent. Therefore, the Single Judge had no other alternative than to rely on the contents of the relevant employment contracts, where the Claimant is referred to as a fitness coach responsible to “prepare the football team physical fitness […] under the responsibility of the Head Coach”.

6. In this regard, the Single Judge was eager to note that the duty as described above is clearly not the one of a coach in the sense of art. 6 of the Procedural Rules and rather refer to the position of fitness trainer with solely physical tasks to enhance the players’ physical condition. Even more, the Single Judge stressed that art. 2 of the 2nd contract clearly established that the Claimant had to report directly to the head coach of the Respondent.

7. In light of the above, the Single Judge had no doubt that the relevant contracts at the basis of the present dispute were concluded in order to acquire the services of the Claimant as a fitness trainer and not as a coach.

8. Finally, the Single Judge was keen to underline that it is the longstanding practice of the Players’ Status Committee to interpret the term coach as described in art. 22 c) of the Regulations in line with the functions of a head or assistant coach to a club or association.

9. In view of all of the above, the Single Judge, referring once again to art. 6 par. 1 of the Procedural Rules in combination with art. 22 c) of the Regulations, decided that the claim of the Claimant is not admissible in view of the fact that the latter, being a fitness trainer, cannot be viewed as a party who is entitled to seek redress in front of the decision-making bodies of FIFA, in accordance with art. 6 par. 1 of the Procedural Rules. In any case, the dispute is based on employment contracts signed by and between a fitness trainer and a Club of Country C and also therefore does not fall within the competence of the decision-making bodies of FIFA.

*****

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

The claim of the claimant, Fitness Coach A, is inadmissible.

*****

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