F.I.F.A. – Players’ Status Committee / Commissione per lo Status dei Calciatori – coach disputes / controversie allenatori (2017-2018) – fifa.com – atto non ufficiale – Decision of the Single Judge of the Players’ Status Committee passed in Zurich, Switzerland, 27 September 2017

Decision of the Single Judge

of the Players’ Status Committee

passed in Zurich, Switzerland, on 27 September 2017,

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 an employment-related contractual dispute

arisen between the parties

I. Facts of the case

1. On 8 May 2014, 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 employment contract), valid from 1 June 2014 until 30 June 2016 and by means of which the latter hired the Claimant as “Assistant Coach”.

2. According to articles 5.1 and 5.2.1 of the employment contract, the Claimant was entitled to receive from the Respondent a monthly salary of EUR 24,000, payable on or before the end of each calendar month from June 2014 until June 2016 as well as a bonus at the discretion of the Respondent for any match victory by the Respondent in the Asian Champion’s League, UFL League or League E.

3. In addition, in accordance with articles 5.3, 5.4 and 5.6, during the length of the employment contract, the Claimant was also entitled to other benefits :

- 8 return flight tickets (economy class) from Country B to Country D for the Claimant himself or for his family (clause 5.3);

- a suitable 3-bedroom furnished accommodation in City F including utilities (clause 5.4);

- a suitable motor vehicle (clause 5.6).

4. Article 8.1 (ii) of the employment contract stated inter alia that, “Notwithstanding anything to the contrary, this [employment contract] may be terminated in any of the following ways:

[…]

(ii) by [the Respondent], immediately, upon the head coach, Head Coach G terminating his employment contract with [the Respondent]”.

5. Moreover, in accordance with article 8.4 of the employment contract, “in the event that [the Respondent] terminates this [employment contract] during the TERM without just cause, [the Respondent] shall pay to [the Claimant], as full and final breach of contract compensation, an amount equivalent to the lesser of: (I) remaining value of the [employment contract], calculated by reference to the outstanding amounts payable under clause 5.1 of this [employment contract], until the expiration of the TERM; or (ii) Euro 50,000 (fifty thousand Euros). Notwithstanding anything to the contrary, in the event that [the Respondent] terminates this [employment contract] pursuant to clause 8.1 (ii) of this [employment contract], [the Respondent] shall not be liable to pay any compensation to [the Claimant], under this clause 8.4 of this [employment contract], or otherwise, for such termination”.

6. Furthermore, article 10 of the employment contract stated inter alia that, the latter shall be governed and interpreted in accordance with the laws of Country D and that the parties agreed to submit any dispute arising from or related to the employment contract to the non-exclusive jurisdiction of the courts of City F, Country D.

7. Finally, according to article 11 of the employment contract, any amendment to the latter shall only be effective if done in writing and signed by both parties.

8. By means of a letter dated 15 June 2015, the Respondent terminated the employment contract with immediate effect.

9. On 18 May 2016, the Claimant lodged a claim in front of FIFA against the Respondent, alleging that the latter had terminated the employment contract on 15 June 2015 in writing, with immediate effect and without prior notice.

10. Furthermore, the Claimant provided FIFA with an unsigned document entitled “Settlement Agreement” (hereinafter: the settlement agreement) dated 18 November 2015 by means of which he was entitled to receive from the Respondent the total amount of EUR 109,926.83 on or before 31 January 2016.

11. Article 8 par. 1 and 2 of the settlement agreement stated that, “this SETTLEMENT AGREEMENT shall be governed by and interpreted in accordance with its provisions and the laws of Country D. Any dispute arising from or related to this SETTLEMENT AGREEMENT will be submitted to courts of City F”.

12. Moreover, according to article 10 par. 1 of the settlement agreement, “ [t]his SETTLEMENT AGREEMENT is the complete understanding between the PARTIES in relation to the subject matter of this SETTLEMENT AGREEMENT, and supersedes any and all previous correspondence between the PARTIES in relation to the subject matter of this SETTLEMENT AGREEMENT”.

13. In this respect, the Claimant alleged that the Respondent failed to pay his outstanding remuneration in accordance with the settlement agreement, however, he based his claim on the employment contract deeming that the settlement agreement became null and void.

14. Furthermore, the Claimant explained that, by means of a letter dated 29 March 2016, he reminded the Respondent of the allegedly outstanding amount of EUR 417,300 setting a time limit of 8 days to remedy the default.

15. In addition, the Claimant provided FIFA with a document entitled “Confirmation of payment by Club C in due time” which stated that the Respondent could not confirm whether the amount of EUR 109,927 had been paid to the Claimant on or before 25 April 2016.

16. Consequently, basing his claim on the employment contract, the Claimant requested from the Respondent the total amount of EUR 415,800 detailed as follows:

- the amount of EUR 72,000 (3 x EUR 24,000) as outstanding salaries for the season 2014/2015;

- the amount of EUR 1,600 (2 x EUR 800) corresponding to the allocation allegedly due for the flight tickets during the season 2014/2015;

- the amount of EUR 3,000 (3 x EUR 1,000) corresponding to the allocation allegedly due for the use of the vehicle during the season 2014/2015;

- match bonuses;

- the amount of EUR 288,000 (12 x EUR 24,000) as compensation until the residual value of the contract;

- the amount of EUR 3,200 (4 x EUR 800) corresponding to the allocation allegedly due for the flight tickets during the season 2015/2016;

- the amount of EUR 12,000 (12 x EUR 1,000) corresponding to the allocation allegedly due for the use of the vehicle during the season 2015/2016;

- the amount of EUR 36,000 (12 x EUR 3,000) corresponding to the allocation allegedly due for the use of the apartment during the season 2015/2016;

as well as all legal and proceeding costs to be borne by the Respondent.

17. In its reply to the claim lodged against it, the Respondent acknowledged having concluded the employment contract with the Claimant as well as having terminated it by a written notice on 15 June 2015. However, the Respondent contested the other allegations of the Claimant.

18. In support of its reply, the Respondent submitted to FIFA a signed version of the settlement agreement dated 18 November 2015 and concluded by the parties on 22 November 2015.

19. Firstly, the Respondent contested the competence of FIFA invoking that the present dispute shall be governed and resolved by the laws of Country D in accordance with article 8 of the settlement agreement concluded by the parties on 22 November 2015, as well as submitted to the courts of City F.

20. The Respondent further alleged that, if FIFA was nevertheless competent to hear the present dispute despite the aforementioned clause, the Single Judge of the Players’ Status Committee would still not be in a position to hear the claim as the Claimant was hired by the Respondent as physical trainer and, therefore, does not fulfil the conditions of articles 22 and 23 of the Regulations on the Status and Transfer of Players.

21. Secondly, the Respondent alleged that all amounts claimed by the Claimant on the basis of the employment contract are incorrect as the parties expressively agreed on a total amount of EUR 109,926 in accordance with article 3 of the settlement agreement. Therefore, according to the Respondent, the Claimant could only be entitled to the amount of EUR 109,926 as compensation.

22. Finally, the Respondent explained that it did not pay the amount of EUR 109,926 invoking its difficult financial situation and expressed its willingness to fulfil its contractual obligation.

23. In his replica, the Claimant contested all the allegations of the Respondent and reiterated his initial claim. In this respect, the Claimant maintained that FIFA had jurisdiction to deal with the present dispute. Secondly, the Claimant alleged that according to the reply, the Respondent acknowledged being contractually obliged to pay the amount of EUR 109,926 but as it did not respect its engagement, the settlement agreement should not be taken into account in the present dispute.

24. In its duplica, the Respondent contested the replica of the Claimant in its entirety and maintained all its previous arguments. In this respect, the Respondent alleged that all obligations arising from the employment contract were replaced by the obligations set out in the settlement agreement which became fully valid and enforceable on the date of signature by both parties, i.e. 22 November 2015.

25. On 23 June 2017, after the closure of the investigation, the Claimant submitted to FIFA unsolicited additional comments and amended his claim.

II. Considerations of the Single Judge of the Players’ Status Committee

1. First of all, the Single Judge of the Players’ Status Committee (hereinafter: the Single Judge) analysed which edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: Procedural Rules) was applicable to the matter at hand. In this respect, considering that the present matter was submitted to FIFA on 18 May 2016, the Single Judge concluded that the 2015 edition of the Procedural Rules is applicable in the matter at hand (cf. art. 21 of the 2015 and 2017 editions of the Procedural Rules).

2. Subsequently, the Single Judge analysed which edition of the Regulations on the Status and Transfer of Players (hereinafter: “the Regulations”) should be applicable as to the substance of the matter. In this respect, he confirmed that the present matter was submitted to FIFA on 18 May 2016 and, therefore, concluded that the 2015 edition of the Regulations is applicable in the matter at hand as to the substance (cf. art. 26 par. 1 and par. 2 of the 2015 and 2016 editions of the Regulations).

3. Having said that, the Single Judge stated that on the basis of art. 3 par. 1 and 2 of the Procedural Rules in connection with art. 23 par. 1 and 4 as well as art. 22 lit. c) of the 2016 edition of the Regulations, he would, in principle, be competent to deal with the present matter since it concerned an employment-related dispute between a coach and a club of an international dimension.

4. However, the Single Judge acknowledged that the Respondent contested his competence to deal with the present case, alleging that according to article 8 of the settlement agreement concluded by the Claimant and the Respondent on 22 November 2015, any dispute arisen between the parties in the present matter should be submitted to the courts of City F and governed by and interpreted in accordance with the Laws of Country D.

5. The Single Judge equally noted that the Claimant rejected such position and maintained that FIFA had jurisdiction to deal with the present matter due to the international dimension of the latter between a coach and a club.

6. While analysing whether he was competent to hear the present matter, the Single Judge considered that he should first analyse whether the employment contract and/ or the settlement agreement at the basis of the present dispute actually contained a jurisdiction clause and secondly, whether it should be considered binding upon the parties.

7. On the one hand, the Single Judge took note that according to article 10 of the employment contract concluded by the parties on 8 May 2014, they agreed to submit any dispute arising from or related to the latter to the non-exclusive jurisdiction of the courts of City F, Country D.

8. On the other hand, the Single Judge recalled the content of article 8 par. 2 of the settlement agreement concluded by the parties on 22 November 2015 which stated that, “[a]ny dispute arising from or related to this SETTLEMENT AGREEMENT will be submitted to courts of City F”.

9. After having carefully analysed the two jurisdiction clauses of both agreements concluded between the parties, the Single Judge referred to the content of article 10 of the settlement agreement which provides that, “t]his SETTLEMENT AGREEMENT is the complete understanding between the PARTIES in relation to the subject matter of this SETTLEMENT AGREEMENT, and supersedes any and all previous correspondence between the PARTIES in relation to the subject matter of this SETTLEMENT AGREEMENT”.

10. With those considerations in mind, the Single Judge recalled that the Claimant and the Respondent validly concluded two agreements, the employment contract on 8 May 2014 and the settlement agreement on 22 November 2015. Moreover, the Single Judge acknowledged that both agreements were concluded freely by the same parties to the present dispute and related to the same contractual object and resulted from the common will of the parties.

11. In continuation, the Single Judge noted that the Claimant maintained to base his claim on the employment contract, alleging that the settlement agreement should not be taken into account in the present dispute as he deems it became null and void due to the non-payment of the amounts stipulated therein.

12. In view of the above, the Single Judge considered that according to the clear and unambiguous content of article 10 of the settlement agreement, the said agreement concluded on 22 November 2015 by the parties extinguishes the rights and obligations that were in effect under the old agreement, i.e. the employment contract. In other words, the Single Judge confirmed that the settlement agreement concluded by the Claimant and the Respondent replaced the initial contract and became fully valid and enforceable on the date of its signature by both parties, i.e. on 22 November 2015.

13. Consequently, the Single Judge concluded that the settlement agreement was the only contract binding the two parties in the present dispute.

14. As a result, the Single Judge referred to the content of article 8 par. 2 of the settlement agreement and outlined that said clause clearly and unambiguously identified the courts of City F as exclusively competent to deal with disputes arising out of the settlement agreement.

15. In light of the above, the Single Judge decided that the present claim is inadmissible.

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

1. The claim of the Claimant, Coach A, is inadmissible.

2. The final costs of the proceedings in the amount of CHF 20,000 are to be paid by the Claimant, Coach A, to FIFA. Considering that the Claimant, Coach A, already paid the amount of CHF 5,000 as advance of costs at the start of the present proceedings, the latter has to pay the remaining amount of CHF 15,000 within 30 days as from the date of notification of the present 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

*****

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