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 1 September 2016, 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) valid from its date of signature until 31 May 2018 and according to which the Respondent hired the Claimant as “Assistant Coach of Head Coach”.

2. According to article 4 lit. a) of the contract, for the season 2016/2017, the Claimant was entitled to receive from the Respondent an annual net salary of EUR 90,000 between “30” September 2016 and 31 May 2017, payable in 9 equal instalments of EUR 10,000 each and no later than the 10th of the following month. For the season 2017/2018, the Claimant was entitled to receive from the Respondent an annual net salary of EUR 100,000 between 31 August 2017 and 31 May 2018, payable in 10 equal instalments of EUR 10,000 each and no later than the 10th of the following month.

3. Moreover, article 5 of the contract stipulated that, “the [Claimant] acknowledges and agrees that he is signing a contract with [the Respondent] as member of the team of Head Coach E and in case the employment contract of the latter with [the Respondent] is terminated prematurely, whatever may be the reason for such termination, this agreement will be deemed automatically terminated”.

4. Finally, article 7 of the contract stated inter alia that, the “parties will try their utmost to settle any dispute arising from this contract amicably. In case this cannot be achieved, the Football Federation of Country D and FIFA regulations will govern”.

5. On 16 January 2017, the Claimant lodged a claim in front of FIFA against the Respondent, alleging that the latter had unilaterally terminated the contract without just cause.

6. In this respect, the Claimant alleged that on 28 November 2016, the Respondent had terminated the contract by a written notice, without just cause and prior notice and failed to pay his outstanding salaries.

7. According to the Claimant, the Respondent had terminated the contract due to the fact that the Claimant had allegedly failed to provide the Respondent with his work permit, diploma and licence. In this respect, the Claimant provided FIFA with a termination letter dated 28 November 2016 and issued by the Respondent which inter alia stated that:

“TERMINATION NOTICE

(…)

Until today you [i.e. the Claimant] did not provide the [Respondent] with his license and it is understood that you do not have a license, in addition to this you also did not get necessary permission from authorities of Country D for working and staying in Country D.

Thus and without prejudice to the rights of [the Respondent] such as but not limited to claim compensation, reimbursement of amounts paid to yourself until now we [i.e. the Respondent] hereby terminate the employment contract dated 1.9.2016 with immediate effect.

[the Respondent] ”.

8. In continuation, the Claimant explained that, firstly, by means of a letter dated 29 November 2016, he reminded the Respondent of its obligation as employer to obtain a work permit for its employee and invited the latter to confirm in writing whether it still maintained the early termination of the contract. Furthermore, the Claimant explained that, by means of a letter dated 27 December 2016, he reminded the club of the allegedly outstanding amount of EUR 170,000 setting a time limit of 10 days to remedy the default.

9. Consequently, the Claimant requested from the Respondent :

- the amount of EUR 9,333 as outstanding salary from 1 November to 28 November 2016 and allegedly due as from 10 December 2016;

- the amount of EUR 160,667 as compensation for breach of contract;

- plus interest at a rate of 5% p.a. on the said amounts as of the respective date of maturity until the date of effective payment;

as well as sanctions to be imposed against the Respondent and all proceeding and legal costs to be borne by the latter.

10. In its reply to the claim lodged against it, the Respondent acknowledged having concluded the contract with the Claimant, however, contested the claim in its entirety.

11. In this respect, the Respondent contested the competence of FIFA “ratione materiae” alleging that the claim is inadmissible due to the fact that, “[the Claimant] cannot prove he is a coach with a license granted by a national association”. According to the Respondent, the Claimant did not submit his diploma to the latter even though he had been allegedly requested by it. The Respondent further alleged having proposed to the Claimant to terminate the contract by mutual consent, which was rejected by the latter.

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

13. In this respect, firstly, the Claimant alleged that, “in similar case to the present one whereas under position of FIFA PSC it was the obligation of the football club to verify a coach’s qualifications prior to hiring him meaning that in the case at hand it was the responsibility of [the Respondent] to verify the qualifications of [the Claimant] prior the signature of the Employment contract [i.e. the contract] which the Respondent obviously failed to do as there is no evidence provided by the Respondent which would confirm that the Respondent asked or verified with the Claimant his qualifications and asked the Claimant about the license”. Furthermore, the Claimant referred to CAS jurisprudence and finally explained that, “the Respondent, as the employer, had obviously failed to obtain visa and working permission for the Claimant, as employee (…)”.

14. In its duplica, the Respondent maintained all its previous arguments and confirmed having unilaterally terminated the contract.

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 16 January 2017, the Single Judge concluded that the 2017 edition of the Procedural Rules is applicable in the matter at hand (cf. art. 21 of the 2017 edition 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 16 January 2017 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. However, the Single Judge remarked that in its statement of defence, the Respondent challenged the competence of FIFA ratione materiae alleging that the claim should be inadmissible due to the fact that, “[the Claimant] cannot prove he is a coach with a license granted by a national association”.

5. In this respect, the Single Judge referred to the content of article 6 par. 1 of the Procedural Rules, which establishes that parties are member associations of FIFA, clubs, players, coaches or licensed match agents.

6. In view of the above, the Single Judge considered that the relationship between the Claimant and the Respondent is established as an employment relationship between a coach and a club of an international dimension, which in casu is sufficient for the Players’ Status Committee or its Single Judge to hear the present matter. Therefore, the Single Judge confirmed that the Respondent’s objection to the competence of FIFA to deal with the present matter had to be rejected and confirmed that the Claimant’s claim was admissible.

7. His competence and the applicable regulations having been established and entering into the substance of the matter, the Single Judge continued 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.

8. In doing so and to begin with, the Single Judge acknowledged that on 1 September 2016 the Respondent and the Claimant concluded the contract valid as from its date of signature until 31 May 2018 and according to which the latter was hired by the Respondent as “Assistant Coach of Head Coach”.

9. In continuation, the Single Judge noted that on the one hand, the Claimant maintained being entitled to receive from the Respondent outstanding remuneration as well as compensation for breach of contract, alleging that the Respondent had unilaterally terminated the contract on 28 November 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 9,333 as outstanding salary for November 2016 and EUR 160,667 as compensation for breach of contract, plus interest at a rate of 5% p.a. on the said amounts as of the respective date of maturity until the date of effective payment as well as sanctions to be imposed against the Respondent and all proceeding and legal costs to be borne by the latter.

10. Furthermore, the Single Judge observed that in support of his claim, the Claimant provided FIFA with a copy of two letters dated respectively 29 November 2016 and 27 December 2016, according to which the Claimant reminded the Respondent of its obligation as employer to obtain a work permit for its employee and invited the latter to confirm in writing whether it still maintained the early termination of the contract as well as reminding it of the allegedly outstanding amount of EUR 170,000 setting a time limit of 10 days to remedy the default.

11. 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 unilaterally terminated the contract with just cause. In this respect, the Respondent was of the opinion that the Claimant had failed to provide it with his work permit, diploma and licence, although he had allegedly been requested by the latter to do so, reason why the Respondent had no other choice than terminating the contract before its natural expiry date, i.e. 31 May 2018.

12. 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.

13. 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.

14. In doing so, the Single Judge thoroughly analyzed the documents on file and, in particular, the content of the documentation submitted by the Claimant. In this regard, first of all, the Single Judge recalled that the Claimant provided FIFA with a copy of the termination letter dated 28 November 2016 and issued by the Respondent, which inter alia stated that,

“TERMINATION NOTICE

(…)

Until today you [i.e. the Claimant] did not provide the [Respondent] with his license and it is understood that you do not have a license, in addition to this you also did not get necessary permission from authorities of Country D for working and staying in Country D.

Thus and without prejudice to the rights of [the Respondent] such as but not limited to claim compensation, reimbursement of amounts paid to yourself until now we [i.e. the Respondent] hereby terminate the employment contract dated 1.9.2016 with immediate effect.

[the Respondent] ”.

15. In continuation, the Single Judge remarked that the Respondent, for its part, acknowledged having unilaterally terminated the contract. Furthermore, the Single Judge took into account the allegation raised by the Respondent according to which it terminated the contract unilaterally with just cause as the Claimant would not have submitted his diploma, licence and work permit to the latter even though he had been allegedly requested by it to do so.

16. With the abovementioned considerations in mind, the Single Judge asked himself the question whether the allegation of the Respondent could be considered as just cause or not for a unilateral termination of the contract.

17. In this respect, the Single Judge was eager to outline that as soon as an employment contract is signed between two parties, such as a club and a coach, rights and responsibilities ensue on both sides without being subject to any particular condition. Secondly, the Single Judge referred to the well-established jurisprudence of the Players’ Status Committee and emphasised that, as a general rule, it is the club’s duty and responsibility to act accordingly in order to obtain, if necessary, a work permit or a visa for its coaches prior to the signing of an employment contract or during its period of validity, in order for coaches to be able to legally enter a particular country and be in a position to render their services to the club.

18. Furthermore, as to the Claimant’s qualifications, the Single Judge referred to the constant jurisprudence of the Players’ Status Committee and emphasised that, a club wishing to employ a coach has to exercise due diligence and carry out all relevant procedures prior to the signing of the employment contract.

19. In view of the above and as no evidence was provided by the Respondent which would confirm that it asked or verified with the Claimant his qualifications or license, the Single Judge deemed that in casu the Respondent failed to provide FIFA with any conclusive evidence in order to establish the circumstances prior to the early termination of the contract.

20. 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 28 November 2016, by a written notice, without just cause and with immediate effect.

21. 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.

22. 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 28 November 2016, the latter did not allege any valid reason to prematurely terminate the latter and thus, terminated such contract without just cause.

23. 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.

24. In this respect, the Single Judge remarked that the Claimant alleged that the Respondent failed to pay him the salary of November 2016, i.e. the amount of EUR 9,333 and requested from the latter the amount of EUR 160,667 as compensation for breach of contract, i.e. the residual value of the contract as from 1 December 2016 until 31 May 2018.

25. With regard to the compensation payable for the unilateral termination of the contract without just cause, the Single Judge focussed his attention to the content of article 4 lit. a) of the contract, according to which for the season 2016/2017, the Claimant was entitled to receive from the Respondent an annual net salary of EUR 90,000 between “30” September 2016 and 31 May 2017, payable in 9 equal instalments of EUR 10,000 each and no later than the 10th of the following month and for the season 2017/2018, an annual net salary of EUR 100,000 between 31 August 2017 and 31 May 2018, payable in 10 equal instalments of EUR 10,000 each and no later than the 10th of the following month.

26. The Single Judge established that the Claimant was entitled to receive compensation until the original expiration date of the contract, i.e. 31 May 2018. With regard to the amount requested and its calculation, the Single Judge decided that the Respondent should, as a consequence, be liable to pay to the Claimant the salary of November 2016 which should be considered in the present matter as compensation since it fell due on 10 December 2016 only, whereas the termination of the contract occurred on 28 November 2016. In continuation, the Single Judge decided that the Claimant was entitled to receive from the Respondent the total amount of EUR 170,000 as compensation for breach of contract corresponding to the residual value of the contract as from 29 November 2016 until the last day of the contract, i.e. 31 May 2018.

27. 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.

28. Indeed, the Single Judge noted that the Claimant had signed on 1 February 2017 two new employment contracts, both valid until 30 June 2017 and according to which the Claimant was hired as fitness coach on a part time basis. In accordance with the pertinent contracts, the Claimant received the total amount of EUR 2,600 corresponding to his remuneration for the period from 1 February 2017 until 30 June 2017.

29. In view of this, the Single Judge held that the amount of EUR 2,600 should thus be deducted from the residual value of the contract as mentioned above, i.e. EUR 170,000.

30. 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 total amount of EUR 167,400 as compensation for breach of contract and that any further claims lodged by the Claimant are rejected.

31. In addition, with regard to the Claimant’s request related to the payment of interest at a rate of 5% p.a. on the amount claimed, the Single Judge decided that the Respondent must pay to the Claimant interest at a rate of 5% p.a. over the amount of EUR 167,400 as from 16 January 2017 until the date of effective payment.

32. Finally, as regards to the claimed legal costs, the Single Judge referred to art. 18 par. 4 of the Procedural Rules as well as to its longstanding and well-established jurisprudence, in accordance with which no procedural compensation shall be awarded in proceedings in front of the Players’ Status Committee. Consequently, the Single Judge decided to reject the Claimant’s request relating to legal costs.

33. 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 and the 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 and are normally to be paid by the unsuccessful party.

34. In respect of the above, the Single Judge reiterated that the claim of the Claimant is partially accepted and that the Respondent is the party at fault. Therefore, the Single Judge concluded that the Respondent has to bear the entire costs of the current proceedings in front of FIFA.

35. 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 less than CHF 200,000, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 20,000.

36. In conclusion and in view of the circumstances of the present matter, the Single Judge determined the costs of the current proceedings to the amount of CHF 18,000, which shall be borne by the Respondent.

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

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

2. The claim of the Claimant, Coach A, is partially accepted.

3. 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 total amount of EUR 167,400 as compensation as well as 5% interest p.a. on the said amount as from 16 January 2017 until the date of effective payment.

4. 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.

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

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

6.1 The amount of CHF 14,000 has 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

6.2 The amount of CHF 4,000 has to be paid directly to the Claimant, Coach A.

7. The Claimant, Coach A, is directed to inform the Respondent, Club C, immediately and directly of the account number to which the remittances under points 3 and 6.2 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

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

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