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

Geoff Thompson (England)

Single Judge of the Players’ Status Committee,

on the claim presented by the coach

COACH A, from country A

as “Claimant”

against the club

Club B, from country B

as “Respondent”

regarding an employment-related

contractual dispute between the parties.

I. Facts of the case

1. On 27 May 2016, the Coach from country A (hereinafter: the Claimant) and the Club B, from country B (hereinafter: the Respondent) concluded an employment contract (hereinafter: the contract), valid for one year as of 1 July 2016, by means of which the Claimant was hired as head coach of the Respondent and was entitled to inter alia receive from the latter, as remuneration, the total amount of USD 500,000 as follows: USD 120,000 after having signed the contract; USD 70,000 on 31 January 2017; USD 70,000 on 31 May 2017 and USD 240,000 in 12 monthly installments of USD 20,000 each payable “within the period from 1 up to 15 from the same month”.

2. In addition, the Respondent had to “bear the traveling expenses of the second party [i.e. the Claimant] and his family and the amount that must be paid to the second party as travel expenses shall not be more than (6.000$) each year during this contract”.

3. In accordance with clause 15 of the contract, the Respondent “have the right to terminate this contract and to pay a rate of (75%) from total remaining of the contract to the (..) (coach) as a compensation for losses resulting from the termination of the contract without any other financial commitments against the first party [i.e. the Respondent] for the remaining period of the contract in cases listed below: a- if the coach’s duty level decreased during his contract duration. B- if the club or its staff offended by coach’s speech through the visual or invisible media. C- for the benefit of the club: at any time for any other reasons”.

4. Equally, clause 16 of the contract specified that the Claimant could terminate his contractual relationship with the Respondent “after sending an official request to the first party before one month of his desire to termination and he shall pay (50%) from the total remaining of the amount of the contract to the first party as compensation for losses resulting from the termination of the contract in the case that the (coach) has a desire to coaching in Europe”.

5. In addition, the Claimant could terminate the contract “after sending an official letter to the first party before one month after his willing to terminate this contract and he shall pay (1,000,000) US dollar to the first party in the case that he has willing to coaching in the middle east”.

6. By means of a document dated 16 October 2016 (hereinafter: the termination letter), the Respondent terminated the contract in accordance with its clause 15 letter C. (cf. point I.3 above) “which said for the benefit of the club at any time, for any reason the club has right to terminate the contract (..) as from the date of 15 October /2016 as well as the terminations of all contracts which signed with your technical and medical staff”.

7. On 29 November 2016, the Claimant lodged a claim with FIFA against the Respondent for breach of contract and requested from the latter the payment of USD 310,000 as compensation, and of USD 30,000 as outstanding remuneration. The Claimant also requested the payment of 5% interest p.a. on the “outstanding obligations”.

8. In addition, the Claimant requested the payment of compensation in the amount of USD 500,000 for “moral damages” and the reimbursement of USD 1,500, corresponding to “the travel costs for the itinerary country B – country A”.

9. Finally, the Claimant requested FIFA to impose sanctions on the Respondent.

10. In this respect, the Claimant accused the Respondent of having terminated the contract without just cause and of having failed to pay him his full September 2016 salary and part of his October 2016 salary, i.e. the total amount of USD 30,000 (i.e. USD 20,000 for September and USD 10,000 for October). According to the Claimant, he had so far received from the Respondent the total sum of USD 160,000.

11. The Claimant further explained having tried in vain to reach an amicable settlement of the dispute with the Respondent and provided FIFA with several emails allegedly exchanged with the latter as well as an unsigned settlement agreement.

12. In continuation, the Claimant claimed the non-applicability of clause 15 of the contract (cf. point I.3 above) arguing that the relevant provision was not reciprocal and that the termination of the contract by the Respondent had been “made without any factual reason”. Hence, the Claimant deemed being entitled to receive from the latter as compensation for breach of contract “75% of the remaining contractual remuneration amounting to USD 232,500 plus the difference of 25% of the remaining contractual remuneration amounting to USD 77,500”, i.e. the sum of USD 310,000 i.e. USD 500,000 – USD 160,000 received – USD 30,000 outstanding.

13. Finally, the Claimant argued being entitled to additionally receive the sum of USD 500,000 as compensation for the “irreparable damage” caused to his career by the termination of contract.

14. In its response on 27 March 2017, the Respondent contested the claim of the Claimant and accused the latter of having left country B “without any notification to the club and without asking for a ticked to leave country B”.

15. According to the Respondent, the Claimant had “left his technical staff in country B without informing them about his travelling despite they came to the country B with him while the club administration has settled the matters with all technical staff of the claimant amicably”.

16. The Respondent also claimed the validity of clause 15 of the contract and pointed out that no sanctions were to be applied by FIFA.

17. Finally, the Respondent stated that it was “very serious to implement the terms of the contract in accordance with the principle (Pacta sunt sarvnda [sic]) we are requesting the claimant to amend his request in order to be according with what is stipulated in the contract so as to preserve the rights of the club from any null and void claims.”

18. In his replica on 10 April 2017, the Claimant insisted on his original requests against the club.

19. Furthermore and as to clause 15 of the contract, the Claimant elucidated that, from his point of view the phrase “for the clubs benefit () did not mean that the Respondent had the right to terminate the relationship without any reason (..) but, for any objective reason that was not enlisted in the contract and was impossible for the parties to predict on the moment of its conclusion”.

20. In addition, the Claimant accused the Respondent of “severe inhumane behaviour”, as the latter had allegedly failed to provide him with a residence and a work permit and therefore, after the termination of the contract, he had faced “the risk of deportation, which would had been followed with a large fine”. In the same context, the coach alleged having been left by the club “jobless, without any financial mean to cover up his living costs in country B, very far away from home and without a return flight ticket”.

21. The Claimant also maintained having suffered “a denigrating and inhuman treatment, which has caused him a serious psychological trauma for the continuance of his professional career”.

22. In its last statement received on 28 April 2017, the Respondent mainly reiterated the content of its previous submission and contested the allegations of the Claimant.

23. In addition the Respondent argued that, if at all, the Claimant could only claim compensation as established in clause 15 of the contract and requested that the latter “bear the judicial proceedings costs and lawyer fesses [sic] amount of (50.000) Dollars”.

24. Asked about his labour situation as of October 2016, the Claimant informed FIFA on 5 July 2017 that he had not been able to enter in “any agreement with any club”.

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 referred to art. 21 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (editions 2015 and 2017). Consequently, and since the present matter was submitted to FIFA on 29 November 2016, the Single Judge concluded that the 2015 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the Procedural Rules).

2. Subsequently, the Single Judge referred to art. 3 par. 1 and 2 of the Procedural Rules and confirmed that in accordance with art. 23 par. 1 and 3 in combination with art. 22 lit. 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 has an international dimension.

3. As a consequence, the Single Judge is the competent body to decide on the present litigation involving a country A coach and a country B club regarding outstanding salaries based on an employment contract.

4. In continuation, 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 referred, on the one hand, to art. 26 par. 1 and 2 of the 2015 and 2016 editions of the Regulations on the Status and Transfer of Players, and on the other hand, to the fact that the present claim was lodged with FIFA on 29 November 2016. In view of the foregoing, the Single Judge concluded that the 2016 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 (cf. art. 26 par. 1 and 2 of the Regulations).

5. 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. The Single Judge, however, emphasised that in the following considerations he will refer only to the facts, arguments and documentary evidence which he considered pertinent for the assessment of the matter at hand.

6. In this respect and first of all, the Single Judge acknowledged that, on 27 May 2016, the Claimant and the Respondent had concluded an agreement valid for one year as of 1 July 2016, by means of which the Claimant was inter alia entitled to receive from the Respondent the total amount of USD 500,000 as follows: USD 120,000 after having signed the contract; USD 70,000 on 31 January 2017; USD 70,000 on 31 May 2017 and USD 240,000 in 12 monthly installments of USD 20,000 each payable “within the period from 1 up to 15 from the same month”. Furthermore, the Single Judge took note that, in accordance with the contract, the Respondent had to “bear the traveling expenses of the second party [i.e. the Claimant] and his family and the amount that must be paid to the second party as travel expenses shall not be more than (6.000$) each year during this contract”.

7. In continuation, the Single Judge observed that as stated in clause 15 of the contract, the Respondent “have the right to terminate this contract and to pay a rate of (75%) from total remaining of the contract to the (..) (coach) as a compensation for losses resulting from the termination of the contract without any other financial commitments against the first party [i.e. the Respondent] for the remaining period of the contract in cases listed below: a- if the coach’s duty level decreased during his contract duration. B- if the club or its staff offended by coach’s speech through the visual or invisible media. C- for the benefit of the club: at any time for any other reasons”.

8. Equally, the Single Judge further remarked that clause 16 of the contract specified that the Claimant could terminate his contractual relationship with the Respondent “after sending an official request to the first party before one month of his desire to termination and he shall pay (50%) from the total remaining of the amount of the contract to the first party as compensation for losses resulting from the termination of the contract in the case that the (coach) has a desire to coaching in Europe” or “after sending an official letter to the first party before one month after his willing to terminate this contract and he shall pay (1,000,000) US dollar to the first party in the case that he has willing to coaching in the middle east”.

9. Subsequently, the Single Judge took note that in his claim to FIFA, the Claimant had accused the Respondent of having terminated the contract without just cause by means of a termination letter dated 16 October 2016 and had therefore claimed to be entitled to receive, as compensation for breach of contract, his remaining salary under the contract. In addition, the Single Judge took into account that the Claimant had also accused the Respondent of having failed to pay him his September and part of his October 2016 salary, which he now also claims from the latter.

10. In continuation, the Single Judge observed that, for its part, the Respondent had contested the claim of the Claimant and accused the latter of having been the one who terminated their contractual relationship by leaving the country without its consent.

11. In light of all the above, the Single Judge deemed that the first question to be addressed in the present matter was whether the contract had been terminated by the Claimant or by the Respondent and whether such termination had occurred with or without just cause.

12. To this end, the Single Judge noted that the allegations of the Claimant were based on a termination letter drafted on the letterhead of the Respondent and signed by the “Vice Chairman of Club” whereas the Respondent had failed to provide any evidence in support of the allegation that the Claimant would have left country B without its permission and thus terminated the contract.

13. Considering the aforementioned, the Single Judge referred to art. 12 par. 3 of the Procedural Rules and stressed that any party deriving a right from an alleged fact shall carry the burden of proof. Consequently, taking into account the documentation provided by the Claimant as well as bearing in mind that the Respondent had not been able to prove that the Claimant would have been the one who left the country without its permission thereby terminating the contract, the Single Judge concluded that it had to be assumed that the contract had been prematurely terminated by the Respondent on 16 October 2016 without just cause, on the basis of the letter equally dated 16 October 2016, mentioned in point I.6 above.

14. In continuation, the Single Judge recalled that the termination letter was based on clause 15 letter C. of the contract and did not mention any specific reason for terminating the contract. Furthermore, in its submissions to FIFA, the Respondent had never invoked a reason for terminating its contractual relationship with the Claimant other than its right to do so at any time “for the benefit of the club”, as per clause 15 letter C. of the contract. In this respect, the Single Judge deemed it appropriate to analyse the content of such clause invoked by the Respondent as the basis for the termination of the contract with the coach. After doing so, the Single Judge was convinced that such clause of the contract could not be applied, as it is arbitrary, to the benefit of the Respondent only and contrary to the principle of contractual stability, as it allows the Respondent to terminate the contract with the coach at any time for a completely non-objective reason, i.e. “the benefit of the club”. As a result, the Single Judge deemed that the dismissal of the Claimant by the Respondent occurred without just cause.

15. After having established the aforementioned, the Single Judge went on analysing the consequences of the breach of contract without just cause committed by the Respondent.

16. But before doing so, the Single Judge first went on to assess whether any outstanding remuneration was still due by the Respondent to the Claimant at the moment the contract was terminated without just cause by the Respondent. In this regard, the Single Judge underlined that the Claimant had requested from the Respondent the payment of the amount of USD 30,000, corresponding to his salary of September and part of October 2016, together with an interest of 5% per year on the relevant amount.

17. Besides, the Single Judge recalled that the Respondent had not contested having failed to pay to the Claimant the aforementioned claimed amount.

18. In view of the aforementioned, considering the request of the Claimant as well as the content of the contract with regard to the latter’s monthly remuneration and taking into account the legal principle of pacta sunt servanda, which in essence means that agreements must be respected by the parties in good faith, the Single Judge resolved that the Respondent, in order to fulfil its obligations established in the contract has to pay to the Claimant the outstanding amount of USD 30,000.

19. Additionally and with regard to the Claimant’s request for interest, the Single Judge, in accordance with his well-established jurisprudence, decided that the Respondent has to pay to the Claimant 5% interest p.a. on the amount of USD 30,000 as from 29 November 2016, i.e. the date of the claim, until the date of effective payment.

20. In continuation and as to the Claimant’s request related to the reimbursement of USD 1,500, allegedly corresponding to the “travel costs for the itinerary country B –country A”, the Single Judge referred to his well-established jurisprudence as well as to the content of the contract and established that the Respondent should pay to the Claimant the value of his flight ticket to return home after the termination of contract. In this respect, considering that no evidence had been provided by the Claimant in support of the allegation that he would have paid USD 1,500 to return home after the termination of the contract and on the basis of the information provided by FIFA Travel, the Single Judge concluded that the Respondent must pay to the Claimant the amount of USD 265, corresponding to the price of one one-way economy ticket country B-country A.

21. Furthermore and with regard to the Claimant’s request for interest, the Single Judge, in accordance with his well-established jurisprudence, decided that the Respondent has to pay to the Claimant 5% interest p.a. on the amount of USD 265 as from 29 November 2016 until the date of effective payment

22. Having established the aforementioned and turning his attention to the compensation payable to the Claimant by the Respondent following the termination without just cause of the contract by the latter, the Single Judge reverted to the content of clause 15 and of clause 16 of the contract – as well as to the considerations already made in point II.14 above – and reasoned that the relevant provisions established clearly disproportionate consequences for the termination performed by the Claimant or by the Respondent – to the advantage of the Respondent – and were therefore to be considered inapplicable for the determination of the amount of compensation payable to the Claimant. As a result, the Single Judge deemed that the amount of compensation due to the Claimant had to be assessed in accordance with other criteria.

23. Equally, the Single Judge observed that, since the termination of contract by the Respondent without just cause on 16 October 2016, the Claimant had not been able to conclude a new employment contract.

24. Considering the aforementioned and, in particular, considering that because of the unjustified termination of the contract by the Respondent, the Claimant had found himself unemployed as well as taking into account the specific request of the Claimant, the Single Judge, in accordance with his well-established jurisprudence, concluded that it was fair and reasonable that the Respondent paid to the Claimant the remaining value of the contract. Hence, the Single Judge decided that in casu the amount of USD 310,000, corresponding to the salary of the Claimant for the half of the month of October 2016 plus his salary between and November 2016 and June 2017 under the contract constituted a reasonable and justified amount of compensation for breach of contract. In view of the above, the Single Judge concluded that the amount of USD 310,000 should be paid by the Respondent to the Claimant.

25. Equally and with regard to the Claimant’s request for interest, the Single Judge, in accordance with his well-established jurisprudence, decided that the Respondent has to pay to the Claimant 5% interest p.a. on the amount of USD 310,000 as from 29 November 2016 until the date of effective payment

26. After having ruled on the aforementioned, the Single Judge went on to deal with the third part of the Claimant’s claim, i.e. his request for the payment of USD 500,000 as additional compensation for “moral damages”.

27. In this respect, the Single Judge recalled that no evidence had been submitted by the Claimant in support of the allegation that the latter would have suffered a further damage in the amount of USD 500,000. As a consequence and in line with art. 12 par. 3 of the Procedural Rules, the Single Judge decided that this request of the Claimant had to be rejected due to lack of proof or any contractual basis.

28. Subsequently and as to the request of the Claimant to impose sanctions on the club, the Single Judge deemed that such request had to be rejected as it lacked legal basis.

29. Finally, the Single Judge turned his attention to the Respondent’s request related to the reimbursement of legal expenses in the amount of USD 50,000 and recalled that in accordance with art. 18 par. 4 of the Procedural Rules, “No procedural compensation is awarded in proceedings of the Players’ Status Committee and the DRC”. Therefore, the Single Judge decided that the Respondent’s request regarding the reimbursement of the legal expenses allegedly incurred has to be rejected.

30. In view of all the aforementioned, the Single Judge concluded that the claim of the Claimant is partially accepted and that the Respondent has to make to the Claimant the followings payments:

- outstanding remuneration in the amount of USD 30,000, plus 5% interest p.a. on said amount as from 29 November 2016 until the date of effective payment;

- air ticket in the amount of USD 265, plus 5% interest p.a. on said amount as from 29 November 2016 until the date of effective payment and

- compensation for breach of contract in the amount of USD 310,000, plus 5% interest p.a. on said amount as from 29 November 2016 until the date of effective payment.

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 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.

32. In this respect, the Single Judge reiterated that the claim of the Claimant is only partially accepted and that the Respondent is the party at fault. Therefore, the Single Judge decided that the Claimant and the Respondent have to bear the costs of the current proceedings in front of 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 above CHF 200,001, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000.

34. In conclusion and in view of the numerous submissions that had to be analysed in the present matter as well as considering that a number of factual complexities had to be addressed but taking into account that the present decision was taken by the Single Judge and not by the Players’ Status in corpore, the Single Judge determined the costs of the current proceedings to the amount of CHF 20,000.

35. Consequently, the amount of CHF 5,000 has to be paid by the Claimant and the amount of CHF 15,000 has to be paid by the Respondent to cover the costs of the present proceedings.

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 B, has to pay to the Claimant, Coach A, within 30 days as from the date of notification of the present decision, outstanding remuneration in the amount of USD 30,000, plus 5% interest p.a. on said amount as from 29 November 2016 until the date of effective payment.

3. The Respondent, Club B, has to pay to the Claimant, Coach A, within 30 days as from the date of notification of the present decision, an air ticket in the amount of USD 265, plus 5% interest p.a. on said amount as from 29 November 2016 until the date of effective payment.

4. The Respondent, Club B, has to pay to the Claimant, Coach A, within 30 days as from the date of notification of the present decision, compensation for breach of contract in the amount of USD 310,000, plus 5% interest p.a. on said amount as from 29 November 2016 until the date of effective payment.

5. If the aforementioned sums, plus interest as established above, are not paid within the aforementioned deadline, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.

6. Any other claims lodged by the Claimant, Coach A, are rejected.

7. The final costs of the proceedings in the amount of CHF 20,000 are to be paid by both parties, within 30 days as from the date of notification of the present decision, as follows:

7.1. The amount of CHF 5,000 has to be paid by the Claimant, Coach A. Considering that the latter already paid an advance of costs in the amount of CHF 5,000 at the start of the present proceedings, the Claimant, Coach A, is exempted from paying the aforementioned procedural costs.

7.2. The amount of CHF 15,000 has to be paid by the Respondent, Club B 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

8. The Claimant, Coach A, is directed to inform the Respondent, Club B, immediately and directly of the account number to which the remittances under point 2., 3. and 4. above are to be made and to notify 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

Marco Villiger

Chief Legal & Integrity Officer

Encl. CAS directives