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

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 a contractual dispute arisen between the parties.

I. Facts of the case

1. On 28 July 2012, 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”).

2. Article three of the contract stated that “The period of this contract is (2 years) started from 28/07/2012 until expires on 27/07/2014 and is it automatically renewed for one or more similar periods, unless one party notifies the other of his intention not to renew it and that is before one month from the original period of contract, and the notice should be in written and delivered by hand or by email or any agreed and acceptable means”.

3. Article four of the contract stated that the Claimant was entitled to receive from the Respondent a monthly salary of USD 4,000 to be paid at the end of each month.

4. According to article five of the contract “The Second Party [i.e. “the Claimant”] is entitled for an annual fully advanced paid vacation of (30 days) if the First Party [i.e. “the Respondent”] was willing to renew the contract, which is paid in the end of each sport season, and the Second Party [i.e. “the Claimant”] should specify time of vacation, and the First Party [i.e. “the Respondent”] has the right to postpone it fully or partially according the work requirements”.

5. In accordance with article six of the contract, the Claimant would be entitled to two annual air tickets for him, his wife and their two children “when he avails of his annual leave”.

6. Article twelve of the contract stated that “In case of termination the contract by the second party [i.e. “the Claimant”] during the contract period shall pay a penalty clause for the first party [i.e. “the Respondent”] (two months’ salary) and he shall pay all costs of travel to his country”.

7. Article twenty-one provided that “Each party selects its address shown on introduction of this contract as home address. Any notices or correspondences delivered by hand, registered mail, express mail or fax or e-mail sent by either party to the other to its address shown above shall be considered served and effective”.

8. On 27 January 2015, the Claimant lodged a claim in front of FIFA against the Respondent requesting the payment of the total amount of USD 99,600 plus a 5% annual interest applicable since the reception of this claim by the Respondent. The cited amount was composed as follows:

(1) USD 96,000 as compensation corresponding to 24 monthly salaries (USD 4,000 per month) from 28 July 2014 until 27 July 2016;

(2) USD 3,600 as outstanding remuneration corresponding to 27 days of the month of July 2014.

9. In this respect, the Claimant explained that after the end of the sporting season 2013/2014, the Respondent authorized him to travel to Country B for his annual vacation (cf. article five of the contract). The Claimant travelled to his home country on 15 May 2014 with the authorization of the Respondent.

10. The Claimant added that before his departure, he planned the next sport season and agreed with the Respondent that he would return to Country D on 15 June 2014 to reassume his duties.

11. Notwithstanding the above, the Claimant argued that the Respondent failed to send him the return air ticket. Even though, the Claimant allegedly reminded the Respondent several times both orally and in writing of its duties.

12. Moreover, the Claimant alleged that on 2 July 2014, the Respondent replied to his email stating that a notice was sent to him via email on 26 June 2014 (cf. article three of the contract) notifying him about its intention not to renew the contract. In this respect, the Claimant contested having ever received such termination notice from the Respondent.

13. Therefore, the Claimant deemed that the contract was renewed for two more years (cf. article three of the contract). Furthermore, the Claimant argued that the Respondent hired a new coach even though they have a valid contract in force.

14. In reply to the claim, the Respondent alleged that on 26 June 2014 it sent an email to the coaching staff included the Claimant informing that the Respondent “intended and purposed to terminate the contract”. The Respondent enclosed a copy of the relevant email.

15. Moreover, the Respondent stated that in response to the Claimant´s email dated 1 July 2015 requesting the return ticket, the Respondent answered also by email on 2 July 2014 clarifying about the termination of the contract on 26 June 2014 and requested the Claimant his account number for transferring the bonus of the team for the last season. Subsequently, on 7 July 2014, the Claimant provided his bank details.

16. In its replica, the Claimant rejected the Respondent´s position and reiterated his opinion that in accordance with article twenty-one of the contract any correspondence or notice that the Respondent wanted to send to him should be sent to the contact information indicated at the beginning of the contract. The Respondent did not send the e-mail to the Claimant’s e-mail address and thus he never took note of the Respondent’s e-mail dated 26 June 2014.

17. Despite the aforementioned, the Claimant added that in any case “From the content of the above referred document we cannot read, implicitly or explicitly, any intention or communication from the respondent to oppose to the contract renovation. And such communication should clear, explicit and distinct”.

18. Furthermore, the Claimant explained that the amount paid by the Respondent as bonus was an item contractually agreed and it was not damage compensation.

19. In sum, the Claimant stated that the contract was renewed for another period of 2 years and the Respondent terminated it without just cause.

20. The Respondent referred to its previous allegations and did not present any further comment.

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 27 January 2015. Consequently, the Single Judge concluded that the 2014 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. Furthermore, the Single Judge confirmed that, on the basis of art. 3 par. 1 of the Procedural Rules in connection with art. 23 par. 1 and 3 as well as art. 22 c) of the 2015 edition of the Regulations on the Status and Transfer of Players, he shall adjudicate on an employment-related dispute between a club or an association and a coach that have an international dimension. As a consequence, the Single Judge confirmed that he was the competent body to decide on the present employment-related dispute involving a Coach of Country B and a club affiliated to the Football Federation of Country D.

3. Subsequently, 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 confirmed that in accordance with the art. 26 par. 1 and 2 of the edition 2016 of the Regulations and taking into account the fact that the present claim was lodged in front of FIFA on 27 January 2015, 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.

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. Having said this, the Single Judge took note that it remained undisputed that, on 28 July 2012, the Claimant and the Respondent concluded the contract which was valid from the date of its signing until 27 July 2014.

6. In this regard, the Single Judge acknowledged that article three of the contract foresaw a possibility to automatically renew the contract for “one or more similar periods”.

7. At this stage, the Single Judge pointed out that the parties had antagonistic positions in relation to the validity of the contract.

8. On the one hand, the Claimant argued that the contract was automatically renewed for a new period of two years and that it was terminated by the Respondent without just cause. On the other hand, the Single Judge acknowledged that the Respondent argued having terminated the contract on 26 June 2014 by sending an email to the coaching staff.

9. In continuation, the Single Judge went on to establish whether the contract was renewed automatically on 28 July 2014 for two more years, as alleged by the Claimant and contested by the Respondent.

10. To start with, the Single Judge took note that the email dated 26 June 2014 enclosed by the Respondent did not have the Claimant among the recipients.

Therefore, the Single Judge concluded that the Claimant was not informed about the contractual termination alleged by the Respondent.

11. Notwithstanding the above, the Single Judge deemed appropriate to recall article three of the contract which reads “The period of this contract is (2 years) started from 28/07/2012 until expires on 27/07/2014 and is it automatically renewed for one or more similar periods, unless one party notifies the other of his intention not to renew it and that is before one month from the original period of contract, and the notice should be in written and delivered by hand or by email or any agreed and acceptable means”.

12. In this context, the Single Judge stated that as a general rule the period of validity of a contract is a crucial element for the parties involved in a contractual relationship. Therefore, the wording of a contract with regard, in particular, to its period of validity should be clear and precise.

13. In addition, the Single Judge deemed that, in principle, contracts which provide for an automatic renewal without granting the parties the possibility to re-negotiate its terms are questionable. Indeed the parties to a contract should, in principle, always have the possibility to discuss the terms of their labour relationship at any point in time. In this regard, in the Single Judge view, article three of the contract effectively banned the parties of such possibility. In other words, automatic renewal clauses should always allow the parties to discuss or negotiate new conditions since they are compromising themselves for a new contractual term.

14. With the aforementioned principles in mind and referring to the contract at basis of this dispute, the Single Judge underlined that the wording of its article three is neither clear nor precise since it apparently gives the possibility to renew its validity automatically without any limit in time.

15. In view of the foregoing and considering the above-mentioned, the Single Judge concluded that article three of the contract cannot be considered as a valid clause since it did not offer the parties the possibility of consultation of new conditions and it was applicable endlessly. In this context, the Single Judge felt comforted with his conclusion considering that the Respondent clearly and unequivocally expressed its intention not to continue with the labour relationship, in spite of the conflicting positions between the parties or when this will was exactly communicated to the Claimant.

16. Therefore, the Single Judge decided that said clause is invalid and therefore cannot serve as basis for the contract to be extended.

17. As a consequence, the Single Judge decided that the contractual relationship between the parties naturally ended on 27 July 2014 and therefore the request of the Claimant for compensation (i.e. USD 96,000) should be rejected.

18. In continuation, the Single Judge acknowledged that the Claimant requested the amount of USD 3,600 as outstanding salary corresponding to 27 days of July 2014.

19. In this regard, the Single Judge referred to the content of article four of the contract, pursuant to which the parties agreed on a monthly salary amounting to USD 4,000.

20. Equally, the Single Judge noted that the Respondent did not contest the Claimant´s request for 27 days of salary related to the month of July 2014.

21. Consequently, the Single Judge concluded that the Claimant was entitled to receive from the Respondent the amount of USD 3,600 as outstanding salary related to the month of July 2014.

22. In addition, the Single Judge took note that the Claimant had requested a 5% annual interest since the reception of his claim by the Respondent, i.e. on 18 March 2015 over the relevant outstanding amount, which the Single Judge saw no reason not to grant.

23. In view of all the above-mentioned considerations, the Single Judge decided that the claim of the Claimant is partially accepted and that the Respondent has to pay to the Claimant the amount of USD 3,600 as outstanding salary plus a 5% annual interest from 18 March 2015 until the date of effective payment.

24. Having concluded the above, the Single Judge then 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 the 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.

25. 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. The amount in dispute to be taken into consideration in the present proceedings is USD 99,600.

Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 10,000.

26. With the above in mind, the degree of success of the claim and taking into account the particular circumstances of the present matter, the Single Judge determined the costs of the current proceedings in the amount of CHF 7,000 and held that such costs have to be borne by the Claimant.

27. Finally, the Single Judge concluded that any other claim lodged by the Claimant is rejected.

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 amount of USD 3,600 as outstanding remuneration plus interest at a rate of 5% per year from 18 March 2015 until the date of effective payment.

3. 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.

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

5. The final costs of the proceedings in the amount of CHF 7,000 are to be paid by the Claimant to FIFA. Taking into account that the latter has already paid the amount of CHF 2,000 as advance of procedural costs at the beginning of the present proceedings, the Claimant, Coach A, should pay to FIFA the remaining amount of CHF 5,000, within 30 days as from the date of notification of this decision, 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

6. The Claimant, Coach A, is directed to inform the Respondent, Club C, immediately and directly of the account number to which the remittance under point 2. above is 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 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

Chief Legal & Integrity Officer

Encl. CAS directives