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/Counter-Respondent”

against the club

Club C, Country D

as “Respondent/Counter-Claimant”

regarding a contractual dispute arisen between the parties.

I. Facts of the case

1. On 1 August 2013, the Coach of Country B, Coach A (hereinafter: “the Claimant/Counter-Respondent” or “the Coach”), and the Club of Country D, Club C (hereinafter: “the Respondent/Counter-Claimant” or “the Club”), concluded an employment contract (hereinafter: “the contract”), valid from 28 July 2013 until 27 July 2015.

2. Article three of the contract stated that “The period of this contract is (2 years) started from 28/07/2013 and expires on 27/07/2015 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 stipulated that the Coach was entitled to receive from the Club a monthly salary of EUR 11,000 at the end of each month.

4. Article ten of the contract reads “The First party [i.e. the Club] shall not hold responsibility in relation to penalties imposed on the Second party [i.e. the Coach] by the any local, regional, or international union, and in particular the financial penalties that the First Party [i.e. the Club] has the right to deduct from the Second Party´s [i.e. the Coach] entitlements and transfer it to the account of the concerned union”.

5. Article eleventh of the contract provided, inter alia, that “This contract is terminated in the following conditions: … 4) Dismissing for public interest”.

6. Article twelve of the contract stated “In the case of termination of the contract of a first party [i.e. the Club] undermines the first party [i.e. the Club] to give the second full monthly salaries remainder till the end of contract and he shall pay all costs of travel to his country. In the case of termination of the contract of the second party [i.e. the Coach], the second party [i.e. the Coach] has to give the first party [i.e. the Club] full monthly salaries remainder till the end of contract and he shall pay all costs of travel to his country”.

7. Article thirteenth of the contract stated “This contract shall be governed by all applicable rules of sport in Country D, issued by the Football Association of Country D of by the General Presidency of Youth Welfare or the Olympic Commitee of Country D”.

8. On 13 February 2015, the Coach lodged a claim in front of FIFA against the Club requesting the payment of a compensation amounting to EUR 143,000, corresponding to 13 monthly salaries of EUR 11,000, plus a 5% annual interest applicable since the reception of his claim by the Club.

9. In this respect, the Coach explained that after the end of the sporting season 2013/2014, the Club authorized him to travel to Country B for his annual vacation, he travelled to his home country on 15 May 2014. The Coach added that before his departure, he planned the next sport season and agreed with the Club that he would return to City E on the last week of June or first of week of July to reassume his duties.

10. The Coach further stated that on 12 June 2014, the Club sent an email to him terminating the employment relationship retroactively, i.e. from 16 May 2014 invoking problems to get entrance visas due to his alleged bad health.

11. In this regard, the Coach rejected categorically the Club´s allegation about his health situation and clarified that he “only suffers congenital hepatitis B in a non-contagious state”. The Coach enclosed a medical health certificate and a witness declaration from the medical department of the club which was his former employer.

12. Moreover, the Coach alleged that the Club had been aware about his health situation at least since October 2013 when the Club performed blood tests and got his residence visa renewed.

13. The Coach further stated that on 16 July 2014, the Club sent a letter to him notifying the immediate termination of the contract (cf. articles ten, eleven and thirteen of the contract) based on the results of the medical test performed on 2 December 2013 and holding that the Coach was not fulfilling the legal requirements in different applicable regulations.

14. In sum, the Coach alleged that denial of a working visa under the FIFA Regulations is not a cause for termination of a contract. Therefore, the Coach deemed that the Club terminated the contract without just cause and that he is entitled to a compensation equivalent to the residual value of the contract.

15. In reply to the claim, the Club confirmed having terminated the contract due to the Coach´s illness (hepatitis B, contagious) “in accordance with the rules and regulations of the state and the public interest which was expressly stated in article 11. 4) of the contract”.

16. Moreover, the Club lodged a counterclaim against the Coach requesting the payment of EUR 143,000 plus a 5% interest from the date of termination until the date of effective payment.

17. In particular, the Club stated that on 28 July 2013 the Coach arrived in Country D to start his duties for the Club and got a visiting visa for 90 days. After said period, the visa was renewed twice for total period of 6 months without need to a medical examination. Nevertheless, when the Club requested a medical examination for the Coach, the latter examination showed that he was infected with Hepatitis B. The Club enclosed copy of the medical report dated 2 December 2013.

18. Finally, the Club alleged that, according to the procedures for obtaining residence in Country D, the applicant has to be free from certain illnesses including hepatitis B.

19. The Coach reacted referring to his previous allegations and stated “since the Club does not present any arguments as a base of such, the counterclaim must be dismissed… and it is not based on any facts or on legal regulations”.

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 13 February 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 at 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 2016 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 13 February 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. His competence 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 1 August 2013, the Coach and the Club concluded the contract which was valid from 28 July 2013 until 27 July 2015.

6. Moreover, the Single Judge acknowledged that it also remained uncontested by both parties that on 12 June 2014 the Club sent an email to the Coach terminating the employment relationship as from 16 May 2014 invoking problems to obtain his working visa due under the light of certain domestic provisions regarding health.

7. Therefore, the Single Judge concluded that on 12 June 2014 (i.e. 10 months and a half after the signature of the contract), the Club terminated the contract. In continuation, the Single Judge turned his attention to analyse whether or not the contract was terminated by the Club with justified reasons.

8. On the one hand, the Single Judge observed that the Coach maintained that denial of a working visa is not a valid reason to terminate an employment contract under the light of the FIFA´s Regulations and in addition, the Coach argued that the Club was aware about his non-contagious illness.

9. On the other hand, the Single Judge took note that the Club stated that due to domestic rules a person who wishes to work in Country D has to be free from certain illnesses, including Hepatitis B, that only on 2 December 2013 (i.e. date of medical´s report) the Club got to know about the Coach´s medical status however, it was only 6 months later (i.e. on 12 June 2014) when the Club terminated the contract.

10. At this stage, the Single Judge underlined that, as a general rule, it is the duty and responsibility of an employer to take care of an employee´s work permit; being aware about the requisites and ensuring that all the necessary steps in order to obtain the relevant work permit are fulfilled.

11. Consequently, the Single Judge concluded that it was the exclusive responsibility of the Club to secure the relevant work permit for the Coach.

12. In this context, the Single Judge was keen to underline that the conduct of the Club was totally contradictory during the period of time in which the coach was registered in Country D as a tourist and that the Club only started the procedure to request the official work permit for the Coach, 5 months after the conclusion of the contract.

13. For the sake of good order, the Single Judge pointed out that as a general rule, employers should be diligent at the moment of signing an employment contract with an employee, in particular, being exhaustively informed about the necessary requirements to fulfil at the moment of hiring a foreign employee.

14. In addition, the Single Judge outlined that, in any case, the Club terminated the contract almost 11 months after its celebration and 6 months after the Club allegedly received the information about the Coach´s illness.

15. What is more, the Single Judge emphasised that, in accordance with the well-established jurisprudence of the Players´ Status Committee, an injury or health condition of a coach cannot be considered a valid reason to terminate an employment contract.

16. Therefore the Single Judge held that on 12 June 2014 the Club terminated the contract with the Coach without just cause.

17. Subsequently, the Single Judge entered into the analysis of the consequences of such unjustified breach of the contract by the Club and started by acknowledging the financial demands of the Coach.

18. In this respect, the Single Judge took note that the Coach was claiming a total amount of EUR 143,000 as compensation equivalent to the residual value of the contract, i.e. from 1 July 2014 until 27 July 2015.

19. In this regard, the Single Judge referred to the content of article twelve of the contract which stated that “In the case of termination of the contract of a first party [i.e. the Respondent] undermines the first party [i.e. the Respondent] to give the second full monthly salaries remainder till the end of contract and he shall pay all costs of travel to his country. In the case of termination of the contract of the second party [i.e. the Coach], the second party [i.e. the Coach] has to give the first party [i.e. the Respondent] full monthly salaries remainder till the end of contract and he shall pay all costs of travel to his country”.

20. The Single Judge pointed out that since the amount of compensation was contractually agreed by the parties, said amount of compensation should therefore be awarded to the Coach as per article twelve of the contract which expressly provided for an amount equivalent to the remaining value of the contract.

21. Consequently, and taking into account that the contract was valid until 27 July 2015, the Single Judge decided that the Coach was entitled to his salary for the period from 1 July 2014 until 27 July 2015 as compensation for the unilateral termination of the contract without just cause by the Club.

22. In this respect, the Single Judge remarked that the Coach informed FIFA having concluded an employment contract on 21 May 2015 with the Club of Country F, Club G valid until 31 May 2016, in accordance with which the Coach was entitled to receive a monthly salary amounting to EUR 4,116.14.

23. Therefore, the Single Judge deemed that the damage compensation should be mitigated during the period from 1 June 2015 and 31 July 2015 (end of validity of the contract) for an amount of EUR 8,333.

24. Consequently, the Single Judge decided that the Club must pay the amount of EUR 134,667 to the Coach as compensation for breach of contract.

25. Having established the above-mentioned, the Single Judge acknowledged the Coach ´s request for interest at a rate of 5% p.a. over the compensation from 7 July 2015 (i.e. date in which the Club received this claim) and decided to accept such request.

26. Subsequently, the Single Judge referred to the Club´s counterclaim for an amount of EUR 143,000 as compensation.

27. In this respect, the Single Judge reiterated his previous considerations, in particular, that it was the exclusive responsibility of the Club to obtain the Coach´s work permit. As a consequence, the Single Judge decided that the Club´s counterclaim should be rejected.

28. In view of all the above-mentioned considerations, the Single Judge decided that the claim of the Coach is accepted and that the Club has to pay to the Coach the amount of EUR 134,667 as compensation plus a 5% annual interest from 7 July 2015 until the date of effective payment.

29. 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.

30. 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 EUR 143,000. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 20,000.

31. 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 20,000 and held that such costs have to be borne by the Club.

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

1. The claim of the Claimant/Counter-Respondent, Coach A, is accepted.

2. The Respondent/Counter-Claimant, Club C, has to pay to the Claimant/Counter-Respondent, Coach A, within 30 days as from the date of notification of this decision, the total amount of EUR 134,667 as compensation plus interest at a rate of 5% per year from 7 July 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. The counterclaim of the Respondent/Counter-Claimant, Club C, is rejected.

5. The final costs of the proceedings in the amount of CHF 15,000 are to be paid by the Respondent/Counter-Claimant, within 30 days as from the date of notification of this decision, as follows:

5.1 The amount of CHF 12,000 has to be paid by the Respondent/Counter-Claimant, Club C, to FIFA. Taking into account that the latter has already paid the amount of CHF 4,000 as advance of costs at the beginning of the present procedure, the Respondent/Counter-Claimant, Club C, should pay to FIFA the amount of CHF 8,000 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

5.2 The amount of CHF 3,000 has to be paid by the Respondent/Counter-Claimant, Club C, to the Claimant/Counter-Respondent, Coach A.

6. The Claimant/Counter-Respondent, Coach A, is directed to inform the Respondent/Counter-Claimant, Club C, immediately and directly of the account number to which the remittances under point 2. and 5.2 above are to be made and to notify the Players’ Status Committee of every payment received.

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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

Omar Ongaro

Football Regulatory Director

Encl. CAS directives