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, 29 August 2017

Decision of the Single Judge

of the Players’ Status Committee

passed in Zurich, Switzerland, on 29 August 2017,

by

Mr Geoff Thompson (England),

Single Judge of the Players’ Status Committee,

on the claim presented by the club

Club A , Country B

as “Claimant / Counter-Respondent”

against the coach

Coach C, Country D

as “Respondent / Counter-Claimant”

regarding an employment-related contractual dispute

arisen between the parties

I. Facts of the case

1. On 8 October 2014, the Club of Country B, Club A (hereinafter: the Claimant / Counter-Respondent) and the Coach of Country D, Coach C (hereinafter: the Respondent / Counter-Claimant) concluded an employment contract (hereinafter: the contract), valid from its date of signature until “the end of the Premier League of Country B 2014/2015, [and] if the premier team of the [Claimant / Counter-Respondent] is still qualified in the Champions’ league after the league, this contract shall extend with all rights and obligation arising on both parties until the elimination of the champions’ league in 2015”. In this respect, according to the information contained in the Transfer Matching System (TMS), the end date of the season was 15 July 2015.

2. According to article 5 of the contract, the Claimant / Counter-Respondent hired the Respondent / Counter-Claimant as “Trainer” and the latter was entitled to receive from the Claimant / Counter-Respondent a monthly salary of USD 29,440.

3. Furthermore, article 9 of the contract stated inter alia that, “[s]hall the Trainer [i.e. Respondent / Counter-Claimant] breach any of the obligations, subject to the sole discretionary power of the [Claimant / Counter-Respondent], arising out because of this agreement [i.e. the contract] or any other written agreement completing this agreement, the [Claimant / Counter-Respondent] shall have the authority to terminate this [i.e. contract] automatically and without any need of any legal procedure or warning. The [Claimant / Counter-Respondent] shall be also entitled to liquid damages of two months’ salary. Such damages shall not be subjected any judicial supervision”.

4. On 30 January 2015, the Claimant / Counter-Respondent lodged a claim in front of FIFA against the Respondent / Counter-Claimant, alleging that the latter had failed to perform his contractual duties.

5. In this respect, the Claimant / Counter-Respondent further alleged that on 11 January 2015 it terminated the contract with just cause and immediate effect by a written notice handed over to the Respondent / Counter-Claimant, invoking the lack of results achieved by the latter and his behaviour while performing his duties.

6. Subsequently, the Claimant / Counter-Respondent explained that “[t]he [Respondent / Counter-Claimant] has been given the letter in own hand, signed the document to acknowledge that he has received it but have, by a mention hand written on the same, indicated that he disagreed with the reasons given for the contract termination, without taking in any way position on the request made by the [Claimant / Counter-Respondent]”.

7. Lastly, the Claimant / Counter-Respondent alleged that, “[a]s far as the [Claimant / Counter-Respondent] is able to assess at the moment this complaint is sent, the [Respondent / Counter-Claimant] does not put in question the termination of the contract as such but refuses to recognize the validity of the reasons to that effect, thus implicitly refuses to pay his former employer the penalty the [Claimant / Counter-Respondent] is entitled to”.

8. Consequently, the Claimant / Counter-Respondent requested from the Respondent / Counter-Claimant the amount of USD 58,880 as compensation (i.e. 2 monthly salaries) in accordance with article 9 of the contract as well as legal and proceeding costs to be borne by the latter.

9. On 11 August 2015, in his reply to the claim lodged against him, the Respondent / Counter-Claimant rejected the Claimant / Counter-Respondent’s allegations and lodged a counter-claim against it. Firstly, the Respondent / Counter-Claimant acknowledged having been dismissed on 11 January 2015 with immediate effect and without just cause, however, alleged that the Claimant / Counter-Respondent had already employed a new coach as from 10 January 2015 in order to replace him and that the reasons invoked by the latter in order to terminate the contract had not been notified to him.

10. Furthermore, the Respondent / Counter-Claimant argued that he was not contractually submitted to an obligation of result and alleged that on 10 January 2015, the Claimant / Counter-Respondent failed to reach an amicable settlement with him in order to terminate the contract.

11. As a consequence, the Respondent / Counter-Claimant requested from the Claimant / Counter-Respondent the amount of USD 58,880 (i.e. 2 monthly salaries) as compensation and the amount of EUR 20,000 as damages.

12. In its replica, the Claimant / Counter-Respondent contested the allegations of the Respondent / Counter-Claimant and reiterated its position. In this respect, the Claimant / Counter-Respondent acknowledged that it had employed a new coach as from 8 January 2015.

13. In his duplica, the Respondent / Counter-Claimant rejected the replica of the Claimant / Counter-Respondent and maintained his previous allegations and reiterated his position.

14. On 23 November 2016, i.e. before the closing of the investigation phase, the Respondent / Counter-Claimant amended his counter-claim and requested the total amount of EUR 137,861 (i.e. 5 monthly outstanding salaries of USD 29,440 plus the exchange rate USD-EUR) as compensation and the amount of EUR 20,000 as damages.

15. With regard to the amendment of the counter-claim, the Claimant / Counter-Respondent contested the reopening of the investigation phase and requested FIFA to disregard the amendment of the Respondent / Counter-Claimant in this sense.

16. Finally, the Respondent / Counter-Claimant informed FIFA that he received from Agency E the amount of EUR 1,616 (approx. USD 1,800) as unemployment benefit for the period between 8 July 2015 until 15 July 2015.

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 30 January 2015, the Single Judge concluded that the 2014 edition of the Procedural Rules is applicable in the matter at hand (cf. art. 21 of the 2014, 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 30 January 2015 and, therefore, concluded that the 2014 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 2014, 2015 and 2016 editions 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 2014 edition of the Regulations, he was competent to deal with the present matter since it concerned an employment-related dispute between a club and a coach 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 8 October 2014, the Respondent / Counter-Claimant and the Claimant / Counter-Respondent concluded the contract valid from its date of signature until “the end of the Premier League of Country B 2014/2015” and by means of which the latter was entitled to receive from the Claimant / Counter-Respondent a monthly salary of USD 29,440.

6. In continuation, the Single Judge noted that, on the one hand, the Claimant / Counter-Respondent maintained being entitled to receive from the Respondent / Counter-Claimant compensation for breach of contract, alleging that it had unilaterally terminated the contract on 11 January 2015 with just cause and immediate effect by a written notice handed over to the Respondent / Counter-Claimant, invoking the lack of results achieved by the latter and his behavior while performing his duties. In view of the above, the Claimant / Counter-Respondent deemed being entitled to receive from the Respondent / Counter-Claimant the amount of USD 58,880 (i.e. 2 monthly salaries) as compensation according to article 9 of the contract as well as legal and proceeding costs to be borne by the latter.

7. Furthermore, the Claimant / Counter-Respondent explained that “[t]he [Respondent / Counter-Claimant] has been given the letter in own hand, signed the document to acknowledge that he has received it but have, by a mention hand written on the same, indicated that he disagreed with the reasons given for the contract termination, without taking in any way position on the request made by the [Claimant / Counter-Respondent]”.

8. On the other hand, the Single Judge remarked that, for the purpose of his defence, the Respondent / Counter-Claimant firstly contested the allegations of the Claimant / Counter-Respondent, but acknowledged having been dismissed on 11 January 2015 by the latter with immediate effect and without just cause, invoking that the latter had already employed a new coach as from 10 January 2015 in order to replace him. Furthermore, the Respondent / Counter-Claimant was of the opinion that he was not contractually submitted to an obligation of result and that the reasons invoked by the Claimant / Counter-Respondent in order to terminate the contract had not been notified to him. In view of the above, after having amended his claim, the Respondent / Counter-Claimant maintained being entitled to receive from the Claimant / Counter-Respondent the amounts of EUR 137,861 as compensation and EUR 20,000 as damages.

9. 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.

10. 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.

11. In doing so, the Single Judge thoroughly analyzed the documents on file and, in particular, the content of the documentation submitted by the Claimant / Counter-Respondent. In this regard, first of all, the Single Judge recalled that the Claimant / Counter-Respondent provided FIFA with a copy of the letter dated 11 January 2015 which was handed over to the Respondent / Counter-Claimant in order to terminate with immediate effect the contractual relationship between the parties in the matter at stake.

12. Secondly, the Single Judge took into account that, for its part, the Respondent / Counter-Claimant acknowledged his dismissal, but contested the reasons invoked by the Claimant / Counter-Respondent in this respect. On account of the aforementioned considerations, the Single Judge considered that the termination of the contractual relationship between the Claimant / Counter-Respondent and the Respondent / Counter-Claimant, which invoked a lack of results of the Respondent / Counter-Claimant, had occurred on 11 January 2015 on the Claimant / Counter-Respondent’s own initiative and that said termination had put an end to the contract concluded by the parties.

13. 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 came to the conclusion that the Claimant / Counter-Respondent terminated the contract concluded with the Respondent / Counter-Claimant prior to the natural expiry date of said contract, i.e. on 11 January 2015, with immediate effect.

14. 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.

15. Having established the above, the Single Judge went on to address the question of whether the contract was terminated by the Claimant / Counter-Respondent with just cause or not. In doing so, the Single Judge pointed out the reasons invoked by the Claimant / Counter-Respondent in order to terminate the contract, “the lack of results” achieved by the Respondent / Counter-Claimant.

16. In this regard, the Single Judge was also eager to recall the well-established jurisprudence of the Player’s Status Committee according to which the absence of sporting results cannot, as a general rule, constitute per se a reason to terminate a contractual relationship with just cause.

17. On account of the aforementioned considerations, the Single Judge deemed that the contract had been unilaterally terminated by the Claimant / Counter-Respondent on 11 January 2015 with immediate effect and without just cause, as unsatisfactory results could not justify the unilateral termination of the contract.

18. Therefore, as a preliminary conclusion, considering the fact that the Claimant / Counter-Respondent had unilaterally terminated the contract on 11 January 2015 with immediate effect and without just cause, the Single Judge decided to reject the claim of the Claimant / Counter-Respondent in its entirety.

19. Having established the aforementioned, the Single Judge continued his deliberations by examining the content of the counter-claim of the Respondent / Counter-Claimant.

20. First of all, the Single Judge went on to deal with the consequences of the termination of the contract without just cause by the Claimant / Counter-Respondent and, in particular, whether the latter should compensate the Respondent / Counter-Claimant for having terminated the contract prematurely and without just cause.

21. With regard to the compensation payable for unilateral termination without just cause by the Claimant / Counter-Respondent, the Single Judge firstly referred to the content of article 5 of the contract which stated inter alia that the Respondent / Counter-Claimant was entitled to receive from the Claimant / Counter-Respondent a monthly salary of USD 29,440.

22. In addition, the Single Judge referred to article 1 of the contract, according to which the latter was valid from its date of signature until “the end of the Premier League of Country B 2014/2015, [and] if the premier team of the [Claimant / Counter-Respondent] is still qualified in the Champions’ league after the league, this contract shall extend with all rights and obligation arising on both parties until the elimination of the champions’ league in 2015”.

23. In this respect, the Single Judge recalled in particular that in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in the Transfer Matching System (TMS).

24. In this regard, the Single Judge considered that according to the information provided by the Claimant / Counter-Respondent as well as the information contained in the Transfer Matching System (TMS), the contract was valid until the end of the Premier League of Country B 2014/2015, i.e. until 15 July 2015.

25. Taking into account the fact that the contract was valid until 15 July 2015 in accordance with TMS and the request of the Respondent / Counter-Claimant for payment of EUR 137,861 as compensation corresponding to 5 monthly salaries, i.e. from 1 February 2015 until 30 June 2015, the Single Judge decided that the latter was entitled to receive from the Claimant / Counter-Respondent as compensation the remaining value of his salary for the unilateral termination without just cause of his contract, amounting to 5 monthly salaries of USD 29,440, i.e. a total of USD 147,200 in accordance with article 5 of the contract.

26. 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 Respondent / Counter-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 Players’ Status Committee, 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.

27. Indeed, the Single Judge noted that the Respondent / Counter-Claimant received the amount of EUR 1,616 (approx. USD 1,800) from Agency E as unemployment benefit for the period between 8 July 2015 until 15 July 2015.

28. In view of this, the Single Judge held that the amount of USD 1,800 should thus be deducted from the residual value of the contract as mentioned above, i.e. USD 147,200.

29. Finally and for the sake of completeness, the Single Judge reverted to the second point of the counter-claim of the Respondent / Counter-Claimant, i.e. his request for damages in the amount of EUR 20,000. In this respect, the Single Judge considered that there is no legal basis for damages and thus, decided to reject it.

30. In conclusion, the Single Judge decided that the claim of the Claimant / Counter-Respondent is rejected, the counter-claim of the Respondent / Counter-Claimant is partially accepted and held that the Claimant / Counter-Respondent has to pay to the Respondent / Counter-Claimant the amount of USD 145,400 as compensation and that any further claims lodged by the Respondent / Counter-Claimant are rejected.

31. 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).

32. In respect of the above, and taking into account that the claim of the Claimant / Counter-Respondent was rejected and that the counter-claim of the Respondent / Counter-Claimant was partially accepted, the Single Judge concluded that both, the Claimant / Counter-Respondent as well as the Respondent / Counter-Claimant, have to bear a part of the costs of the current proceedings before FIFA.

33. 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 over CHF 151,000 the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 20,000.

34. 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 18,000. 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 13,000 has to be paid by the Claimant / Counter-Respondent and the amount of CHF 5,000 by the Respondent / Counter-Claimant.

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

1. The claim of the Claimant / Counter-Respondent, Club A, is rejected.

2. The counter-claim of the Respondent / Counter-Claimant, Coach C, is partially accepted.

3. The Claimant / Counter-Respondent, Club A, has to pay to the Respondent / Counter-Claimant, Coach C, within 30 days as from the date of notification of this decision, the total amount of USD 145,400 as compensation for breach of contract.

4. If the aforementioned amount (point 3) is not paid within the aforementioned deadline, an interest rate of 5% per year will apply as of the expiry of the fixed time limit 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 Respondent / Counter-Claimant, Coach C, are rejected.

6. The final costs of the proceedings in the amount of CHF 18,000 are to be paid within 30 days as from the date of notification of the present decision, as follows:

6.1 The amount of CHF 13,000 has to be paid by the Claimant / Counter-Respondent, Club A, to FIFA. Given that the Claimant / Counter-Respondent, Club A, has already paid the amount of CHF 2,000 as advance of costs at the start of the present proceedings, the latter shall pay an additional amount of CHF 11,000 as costs of proceedings.

6.2 The amount of CHF 5,000 has to be paid by the Respondent / Counter-Claimant, Coach C, to FIFA. Given that the Respondent / Counter-Claimant, Coach C, has already paid the amount of CHF 3,000 as advance of costs at the start of the present proceedings, the latter shall pay an additional amount of CHF 2,000 as costs of proceedings.

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. XXX:

UBS Zurich

Account number 366.677.01U (FIFA Players’ Status)

Clearing number 230

IBAN: CH27 0023 0230 3666 7701U

SWIFT: UBSWCHZH80A

7. The Respondent / Counter-Claimant, Coach C, is directed to inform the Claimant / Counter-Respondent, Club A, immediately and directly of the account number to which the remittance under point 3 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 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:

Club A, Country B / Coach C, Country D 12

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