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, 11 July 2017

Decision of the Single Judge

of the Players’ Status Committee

passed in Zurich, Switzerland, on 11 July 2017,

by

Mr Geoff Thompson (England),

Single Judge of the Players’ Status Committee,

on the claim presented by the coach

Coach A, country A

as “Claimant”

against the club

Club O, country O

as “Respondent”

regarding an employment-related contractual dispute

arisen between the parties

I. Facts of the case

1. On 15 July 2015, the Coah A, from country A (hereinafter: the Claimant) and the Club O, from country O (hereinafter: the Respondent) concluded an employment contract (hereinafter: the contract), valid from 1 June 2015 until 31 May 2018, according to which the Claimant was hired by the Respondent as “Co-Trainer”.

2. According to articles 1.2, 1.3 and 1.4 of the contract, the Claimant was entitled to receive from the Respondent a fixed compensation for the season 2015/2016 in the amount of EUR 35,000 divided in 10 instalments of EUR 3,500 from August 2015 until May 2016, for the season 2016/2017 the amount of EUR 35,000 divided in 10 instalments of EUR 3,500 from August 2016 until May 2017 as well as for the season 2017/2018 the amount of EUR 35,000 divided in 10 instalments of EUR 3,500 from August 2017 until May 2018.

3. Moreover, article 5 of the contract stated that, “[the Respondent] will pay the 50% of the bonus to [the Claimant] according to the Professional team’s bonus system”.

4. On 7 November 2016, the Claimant lodged a claim in front of FIFA against the Respondent, alleging that the latter had terminated the contract without just cause and prior notice.

5. In this respect, the Claimant alleged that the Respondent had partially failed to pay his salaries and bonuses in accordance with the contract and that the latter employed another co-trainer neither informing the Claimant nor terminating his contract by mutual consent.

6. In continuation, the Claimant explained that, by means of a letter dated 7 July 2016, he reminded the Respondent of the allegedly outstanding payment in the amount of EUR 85,000 setting a time limit of three days to remedy the default. The Claimant further alleged that he did not receive any reply or payment from the Respondent.

7. Consequently, the Claimant requested from the Respondent the total amount of EUR 167,000 detailed as follows:

a) EUR 14,000 as outstanding salaries for March, April, May and June 2016;

b) EUR 71,000 corresponding to match bonuses allegedly due;

c) EUR 82,000 as damages for early termination of the contract

as well as to forbid the Respondent to register players during two registration periods and to open disciplinary proceedings against the latter.

8. In its reply to the claim lodged against it, the Respondent acknowledged that the parties concluded a contract, however, rejected the allegations of the Claimant in their entirety.

9. Firstly, the Respondent alleged that, in December 2015 the Claimant left the country without informing the Respondent and without permission.

10. In continuation, the Respondent explained that, by means of two warning letters dated 18 and 31 March 2016, it invited the Claimant to contact and to come to the Respondent, setting a deadline of three days, which apparently all remained answered by the Claimant.

11. Finally, the Respondent alleged that it terminated the contract on 6 April 2016 with just cause and immediate effect, not having any other choice due to the absence of the Claimant.

12. In his replica, the Claimant contested all the allegations of the Respondent and reiterated his initial claim.

13. In spite of having been invited to submit its duplica, the Respondent did not provide FIFA with its last comments.

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 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 7 November 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 7 November 2016 and, therefore, concluded that the 2016 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 2016 edition of the Regulations).

3. With regard to his competence, the Single Judge confirmed 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 was 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. 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.

5. In doing so and to begin with, the Single Judge noted that, on 15 July 2015, the Respondent and the Claimant concluded the contract valid as from 1 June 2015 until 31 May 2018, according to which the latter was hired by the Respondent as “Co-Trainer”.

6. In continuation, the Single Judge noted that, on the one hand the Claimant maintained being entitled to receive from the Respondent outstanding salaries and bonuses as well as compensation for breach of contract, alleging that the Respondent had unilaterally terminated the contract on 6 April 2016 without just cause and prior notice. In view of the above, the Claimant deemed being entitled to receive from the Respondent the amounts of EUR 14,000 as outstanding salaries for March, April, May and June 2016, EUR 71,000 corresponding to match bonuses allegedly due and EUR 82,000 as damages for early termination of the contract.

7. On the other hand, the Single Judge remarked that, for the purpose of its defence, the Respondent contested the allegations of the Claimant, invoking that it terminated the contract on 6 April 2016 with just cause and immediate effect. Furthermore, the Respondent was of the opinion that the Claimant left the country in December 2015 without informing the latter and without permission, reason why it had no other choice than unilaterally terminating the contract before its natural expiry date, i.e. 31 May 2018.

8. Having duly examined the argumentation and documentation put forward by both parties, the Single Judge first of all turned his attention to the early termination of the contract and its circumstances.

9. At this stage, the Single Judge referred 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.

10. In doing so, the Single Judge thoroughly analyzed the documents on file and, in particular, the content of the documentation submitted by the Respondent. In this regard, first of all, the Single Judge recalled that the Respondent alleged having terminated the contract on 6 April 2016 with just cause and with immediate effect.

11. Secondly, the Single Judge deemed that in casu the Respondent did not provide any conclusive evidence in order to establish the circumstances prior to the early termination of the contract, as it provided FIFA with documentation and statements in the country O language only. In this respect, the Single Judge referred to article 9 par. 1 of the Procedural Rules which stipulates that petitions shall be submitted in one of the four official FIFA languages (French, German, English or Spanish) via the FIFA general secretariat. Thus, the Single Judge considered that, for its part, the Respondent did not put forward any valid arguments in support of its position, and decided to reject such documentation and arguments.

12. As a result, considering the legal principle of burden of proof as well as the argumentation and documentation presented by both parties, the Single Judge deemed that the Respondent terminated the contract concluded with the Claimant prior to the natural expiry date of said contract, i.e. on 6 April 2016, without just cause and with immediate effect.

13. Having said that, the Single Judge was eager to emphasise that only a breach or misconduct which is of a certain severity justifies the termination of a contract without prior warning. In other words, only when there are objective criteria which do not reasonably permit to expect a continuation of the employment relationship between the parties, a contract may be terminated prematurely. A unilateral premature termination of an employment contract can always only be an ultima ratio.

14. In view of the above, the Single Judge was of the opinion that, despite the undisputed fact that the Respondent unilaterally terminated the contract on 6 April 2016, the latter did not allege any valid reason to prematurely terminate the latter and thus, terminated such contract without just cause.

15. Having established the aforementioned, the Single Judge went on to deal with the consequences of the termination of the contract by the Respondent and, in particular, whether the latter should compensate the Claimant for having terminated the contract prematurely and without just cause.

16. First of all, the Single Judge focussed his attention to the content of articles 1.2, 1.3 and 1.4 of the contract, which stated inter alia that, the Claimant was entitled to receive from the Respondent a fixed compensation for the season 2015/2016 in the amount of EUR 35,000 divided in 10 instalments of EUR 3,500 from August 2015 until May 2016, for the season 2016/2017 the amount of EUR 35,000 divided in 10 instalments of EUR 3,500 from August 2016 until May 2017 as well as for the season 2017/2018 the amount of EUR 35,000 divided in 10 instalments of EUR 3,500 from August 2017 until May 2018.

17. In this respect, the Single Judge remarked that the Claimant alleged that the Respondent failed to pay him the salaries of March 2016, April 2016, May 2016 and June 2016 and requested from the latter the amount of EUR 14,000 as outstanding salaries.

18. Furthermore, the Single Judge stated that it is uncontested that the Respondent did not fulfil its contractual obligation to pay to the Claimant his monthly salary corresponding to the month of March 2016 in the amount of EUR 3,500, i.e. the monthly salary to be considered in the present matter as outstanding remuneration since the termination of the contract occurred on 6 April 2016.

19. Bearing in mind the aforementioned and the basic legal principle of pacta sunt servanda, which in essence means that agreements must be respected by the parties in good faith, the Single Judge decided that the Respondent had breached its contractual obligations towards the Claimant and should, as a consequence, be liable to pay to the Claimant the amount of EUR 3,500 as outstanding salary in accordance with art. 1 of the contract.

20. With regard to the bonuses requested by the Claimant, the Single Judge pointed out that, the Claimant maintained being entitled to receive bonuses in accordance with the content of article 5 of the contract which stipulated that “[the Respondent] will pay the 50% of the bonus to [the Claimant] according to the Professional team’s bonus system”.

21. In this regard, the Single Judge took note that during the investigation of the matter at stake, the Claimant did not provide any documentary evidence to support his claim for payment of an amount of EUR 71,000 as outstanding bonuses. In view of the above, with reference to art. 12 par. 3 of the Procedural Rules, the Single Judge was of the opinion that the Claimant had not been able to establish his entitlement to any bonuses and therefore, decided to reject the Claimant’s request in this regard.

22. After having established the aforementioned, the Single Judge went on to deal with the third part of the Claimant’s claim, i.e. his request for payment in the amount of EUR 82,000 for compensation for breach of contract, i.e. as from 7 April 2016 until 31 May 2018.

23. In this respect, the Single Judge referred to article 1 of the contract by means of which the Claimant was entitled to receive from the Respondent a fixed compensation for the season 2015/2016 in the amount of EUR 35,000 divided in 10 instalments of EUR 3,500 from August 2015 until May 2016, for the season 2016/2017 the amount of EUR 35,000 divided in 10 instalments of EUR 3,500 from August 2016 until May 2017 as well as for the season 2017/2018 the amount of EUR 35,000 divided in 10 instalments of EUR 3,500 from August 2017 until May 2018 and thus established that the Claimant was entitled to receive compensation until the residual value of the contract, i.e. 31 May 2018. With regard to the amount requested, the Single Judge decided that the Respondent, should as a consequence, be liable to pay to the Claimant the amount of EUR 80,500 as compensation corresponding to the period from the end of season 2015/2016, i.e. April 2016 until the last month of season 2017/2018, i.e. 31 May 2018.

24. Notwithstanding the above, the Single Judge pointed out that an injured party has an obligation to mitigate the loss he or it might have suffered as a result of the non-fulfilment and/or breach of a contract. In this respect, the Single Judge verified whether the Claimant had signed an employment contract with another club or association during the relevant period of time, by means of which he would have been enabled to reduce his loss of income. According to the constant practice of the PSC, such remuneration under a new employment contract shall be taken into account in the calculation of the amount of compensation for breach of contract in connection with the coach’s general obligation to mitigate his damages.

25. Indeed, the Single Judge noted that the Claimant had signed a new employment contract on 11 July 2016 valid until 30 June 2017 with the Club X, from country X. In accordance with the pertinent contract, the Claimant received the total amount of 54,000 (approximately EUR 22,242) corresponding to his remuneration for the period from 11 July 2016 until 30 June 2017.

26. In view of this, the Single Judge held that the amount of EUR 22,242 should thus be deducted from the residual value of the contract as mentioned above.

27. In conclusion, the Single Judge decided that the claim of the Claimant is partially accepted and held that the Respondent has to pay to the Claimant the amount of EUR 3,500 as outstanding remuneration, the amount of EUR 58,258 as compensation for breach of contract and that any further claims lodged by the Claimant are rejected.

28. 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, including its 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 (cf. art. 18 par. 1 of the Procedural Rules).

29. In respect of the above, and taking into account that the Claimant’s claim was partially accepted, the Single Judge concluded that both the Claimant as well as the Respondent have to bear a part of the costs of the current proceedings before FIFA.

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. Consequently and taking into account that the total amount at dispute in the present matter is under CHF 200,000 the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 20,000.

31. In conclusion, and considering the particularities of the present matter, the Single Judge determined the costs of the current proceedings to the amount of CHF 20,000. Furthermore, and in line with his aforementioned considerations and taking into account the degree of success, the Single Judge decided that the amount of CHF 5,000 has to be paid by the Claimant and the amount of CHF 15,000 by the Respondent.

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 O, has to pay to the Claimant, Coach A, within 30 days as from the date of notification of this decision, the total amount of EUR 3,500 as outstanding remuneration.

3. The Respondent, Club O, has to pay to the Claimant, Coach A, within 30 days as from the date of notification of this decision, the total amount of EUR 58,258 as compensation for breach of contract.

4. If the aforementioned amounts are not paid within the aforementioned deadlines, an interest rate of 5% per year will apply as of the expiry of the fixed time limits and the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.

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

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

6.1 The amount of CHF 5,000 has to be paid by the Claimant, Coach A, to FIFA. Given that the Claimant, Coach A, has already paid the amount of CHF 3,000 as advance of costs at the start of the present proceedings, the Claimant, Coach A, shall pay an additional amount of CHF 2,000 as costs of proceedings.

6.2 The amount of CHF 15,000 has to be paid by the Respondent, Club O, to FIFA.

6.3 The abovementioned amounts in points 6.1 and 6.2 have to be paid to FIFA 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 A, is directed to inform the Respondent, Club O, immediately and directly of the account number to which the remittances under points 2 and 3 above are 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 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

Omar Ongaro

Football Regulatory Director

Encl. CAS directives