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, Country B

as “Claimant”

against the club

Club C, Country D

as “Respondent”

regarding a contractual dispute arisen between the parties.

I. Facts of the case

1. On 13 April 2015, 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 13 April 2015 until 30 June 2016.

2. Article one of the contract stated that the Claimant was hired by the Respondent as assistant coach of the first football team.

3. Article three of the contract provided that the Respondent compromised to pay to the Claimant a monthly salary of EUR 7,000 plus bonuses for winning matches in the same terms that the players of the first team.

4. Article four of the contract stated that the Claimant would be entitled to receive 3 economy flight tickets per season.

5. On 30 September 2015, the Claimant lodged a claim in front of FIFA against the Respondent requesting the following amounts:

(1) EUR 14,000 as outstanding salaries corresponding to the months of July and August 2015 plus a 5% annual interest as from 1 August 2015 and 1 September 2015 respectively;

(2) 9,500 of the currency of Country D as match bonuses plus a 5% annual interest as from 1 September 2015;

(3) EUR 70,000 as compensation representing the residual value of the contract from 1 September 2015 until 30 June 2016, plus 5% annual interest as from 1 September 2015;

(4) An undetermined amount as flight tickets plus 5% annual interest as from the date of each invoice;

(5) to fix a sum to be paid by the Respondent to the Claimant in order to cover the lawyer´s fees and costs.

6. In particular, the Claimant argued that due to the persisted breaches of the contract by the Respondent, he terminated the contract with just cause.

7. The Claimant stated that on 27 August 2015, he together with the head coach and the physical coach headed to the training facilities to conduct a training session scheduled at 6 pm. The Claimant underlined that upon their arrival, they found out that the training session had been rescheduled by the Respondent to 8 pm without informing the head coach or any of his assistants. The Claimant stated that they returned to the training facilities at 7:30 pm together with a public notary hereupon finding the coaching staff of the reserve team together with three representatives from the Respondent who informed them that they were not allowed to conduct the training session. The Claimant enclosed a copy of the notary deed.

8. Furthermore, the Claimant alleged that also on 27 August 2015 the local media reported about the official presentation of the new head coach.

9. The Claimant further explained that the head coach after the cited incidents, still on 27 August 2015 sent an email to the Respondent summarizing all the facts of the day and informing that he would not tolerate more abuses and interferences in his duties.

10. The Claimant added that, on the subsequent day, the technical staff went to the training session together with a public notary finding the doors of the facilities locked. The press informed, later that day that a new coach had conducted the training session. The Claimant enclosed a copy of the notary deed.

11. The Claimant explained that on 28 August 2015, he sent a letter to the Respondent “informing the delay in the payment of his salary of July 2015 and match bonuses, while describing the happenings in the training sessions of 27 and 28 August explicitly remarking that it constituted a severe violation of contract which he was not willing to tolerate”.

12. On 29 August 2015, according to the Claimant, the Respondent informed him of its intention to maintain his contract in force and requested him to hold two training sessions on that date.

13. The Claimant further argued that on 31 August and 1 September 2015 he went to the training facilities to conduct the training session but to his surprise, the coach of the youth team informed him that the first team had left to the City of Country D for a training camp and that from thereon he had to join the training sessions of the youth team. Consequently, the Claimant sent two emails on 31 August 2015 to the Respondent warning it about the contractual breaches and that he would not tolerate more abuses.

14. The Claimant added that on 31 August 2015, “the new head coach announced to the press that he had left to the City of Country D for a preparation stage with the first team together with his new assistant coach”.

15. On 1 September 2015, the Claimant terminated the contract in view of the several contractual breaches committed by the Respondent, by sending an email to the latter. On account of the above, the Claimant reiterated that he had just cause to terminate the contract.

16. The Respondent presented its position and, first of all, alleged that FIFA´s deciding bodies are not competent to enter into the substance of this matter in accordance with “article 22 b) of the FIFA Regulations on the Status and Transfer of Players”. The Respondent alleged that the deciding bodies of the Football Federation of Country D assures the rights of both parties and guarantees fair proceedings. In this regard, the Respondent argued that the „National Dispute Resolution chamber of Country D” is an independent commission with equal representation of players and clubs.

17. Moreover, the Respondent alleged that the Claimant did not provide the Respondent with his certificate entitling him to perform his duties as assistant coach. The Respondent argued that the contract is therefore null since the Claimant did not fulfil the conditions required by article 58 of the Regulations of Professional Football of Country D.

18. In addition, the Respondent referred to article 33 par. 3 of the Regulations of Professional Football of Country D arguing that it is mandatory to homologate an employment contract. The Respondent stated that the contract concluded with the Claimant was not homologated. Therefore it reportedly did not produce any legal effects under the light of article 34 of the said domestic regulations.

19. The Respondent further argued that the Claimant did not have the necessary diplomas to accomplish his duty as professional coach in accordance with national law and FIFA´s regulations.

20. In his replica, the Claimant rejected the Respondent´s allegation that the FIFA deciding bodies are not competent to enter into this dispute. The Claimant pointed out that the contract “allows the parties to choose at their discretion the forum to which they want to submit a potential contractual dispute” and, in light of article 22 lit c) of the FIFA Regulations on the Status and Transfer of Players, the FIFA Players´ Status Committee is competent to adjudicate the present matter.

21. The Claimant added that the lack of a clear and unequivocal reference to the exclusive competence of a national arbitrational tribunal in the contract is sufficient to trigger the jurisdiction of the FIFA´s deciding bodies.

22. Moreover, the Claimant contested the Respondent´s allegation that he lacked of the necessary qualifications to perform his duties. In this respect, the Claimant enclosed his license dated 3 June 2014 issued by the Football Association of Country E.

23. Furthermore, the Claimant alleged that the Respondent never requested him any diploma or certificate prior or after the conclusion of the contract or raised any objection until it presented its position in the matter at stake.

24. The Claimant emphasized that in accordance with well-established FIFA´s jurisprudence, the validity of a contract cannot be subject to formalities the fulfilment of which depends on the exclusive will of the club. What is more, according to the Claimant, the payment of his salaries by the Respondent confirms the validity of the contract.

25. The Respondent in its final position reiterated its previous allegations and added that the Claimant unilaterally terminated the contract without just cause.

26. Moreover, the Respondent argued that the Claimant failed to fulfil his contractual obligations since he was absent from the trainings sessions without the Respondent´s authorization despite the fact that the Respondent sent to him an email dated 29 August 2015 as well as a training plan.

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 took note that the present matter was submitted to FIFA on 30 September 2015. Consequently, 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. Furthermore, the Single Judge confirmed that, on the basis of art. 3 par. 1 of the Procedural Rules in connection with art. 23 par. 1 and 3 as well as art. 22 c) of the 2015 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 have an international dimension.

3. As a consequence, the Single Judge would, in principle, be the competent body to decide on the present litigation involving a Coach of Country B and a club affiliated to the Football Federation of Country D regarding outstanding remuneration and compensation for breach of contract.

4. Notwithstanding the above, the Single Judge acknowledged that his competence to deal with the matter at hand was contested by the Respondent alleging that the FIFA´s deciding bodies are not competent to enter into the substance of this matter since the deciding bodies of the Football Federation of Country D is an independent commission with equal representation of players and clubs in accordance with “art. 22 b) of the FIFA Regulations on the Status and Transfer of Players”.

5. With the above considerations in mind, the Single Judge wished to recall that in accordance with art. 22 c) of the Regulations on the Status and Transfer of Players, it is competent to deal with a matter such as the one at hand, unless and independent arbitration tribunal, guaranteeing fair proceedings exists at national level.

6. In relation to the above, the Single Judge also deemed it vital to outline that one of the basic conditions that needs to be met in order to establish that another organ than the Single Judge of the Players´ Status Committee (PSC) can settle an employment-related dispute between a club or an association and a coach of an international dimension, is that the competence of the relevant arbitration tribunal derives from a clear reference in the employment contract.

7. Therefore, while analyzing whether it was competent to hear the present matter, the Single Judge considered that it should, first and foremost, analyze whether the employment contract at the basis of the present dispute actually contained a clear and exclusive arbitration clause in favour of the „National Dispute Resolution chamber of Country D”.

8. With the above-mentioned considerations in mind and after a thorough analysis of the contract at the basis of the present dispute, the Single Judge observed that said contract did not contain an arbitration clause in favour of the relevant Commission of the Football Federation of Country D. Therefore, the Single Judge came to the conclusion that, in the present mater, one of the indispensable requirements in order to determine that another body than the SJ of the PSC is competent to deal with an international employment-related dispute is not met.

9. As a result of the aforementioned, the Single Judge established that the Respondent’s objection to the competence of FIFA to deal with the present matter had to be rejected and that the Single Judge of the Players’ Status Committee was competent, on the basis of art. 23 par. 1 and 3 in combination with art. 22 lit. c) of the Regulations on the Status and Transfer of Players, to consider the present matter as to the substance.

10. Subsequently, 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 regard, he recalled that the present matter was submitted to FIFA on 30 September 2015. Therefore, the Single Judge held that the 2015 edition of the Regulations on the Status and Transfer of Players (hereinafter: “the Regulations”) is applicable to the matter at hand as to the substance (art. 26 par. 1 and 2 of the Regulations).

11. The competence of the Single Judge and the applicable regulations having been established and entering into the substance of the matter, the Single Judge continued acknowledging the above-mentioned facts as well as the documentation 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 which it considered pertinent for the assessment of the matter at hand.

12. In doing so and to start with, the Single Judge took note that on 13 April 2015 the Claimant and the Respondent concluded the contract valid until 30 June 2016.

13. In continuation, the Single Judge pointed out that, on the one hand, the Claimant alleged having terminated the contract with just cause due to the Respondent´s contractual breaches, whereas, on the other hand, the Respondent had argued that the Claimant did not provide his professional certificate and did not homologate the contract in accordance with national regulations. Furthermore, the Respondent alleged that the Claimant was absent from training sessions.

14. To start with, the Single Judge acknowledged that it remained uncontested by the parties that on 1 September 2015 the Claimant sent an email to the Respondent terminating their employment relationship.

15. In view of all the above, the Single Judge deemed that the first question to be addressed in the present matter was whether the Claimant had terminated his contractual relationship with the Respondent with or without just cause.

16. In this regard, the Single Judge focussed his attention to the reasons invoked by the Claimant to terminate the contract, i.e. being prevented by the Respondent to perform his duties as assistant coach of the first football team; being relegated to a lower position (assistant coach of the youth team); being replaced by a new assistant coach and finally lack of payment of outstanding remuneration.

17. The Single Judge deemed that the Claimant presented enough documentary evidence showing that he tried to fulfil his contractual obligations together with the head coach and that the Respondent prevented him from participating in the training sessions scheduled for 27 and 28 August 2015.

18. Moreover, the Single Judge took note that even if on 29 August 2015 the Respondent informed the Claimant, in writing, about its intention to maintain their employment relationship, on 31 August 2015 the Claimant was informed by club´s officials that as from that date he had to join the training sessions of the youth team.

19. For the sake of good order, the Single Judge was keen to underline that article three of the contract expressly established that the Claimant was hired by the Respondent as assistant coach of the first football team.

20. Furthermore, the Single Judge pointed out that according to evidence on file, on 31 August 2015 the new head coach announced the appointment of a new assistant coach. In this respect, the Single Judge noted that the Respondent did not contest this allegation.

21. Equally, The Single Judge noted that the Claimant had sent to the Respondent two default notice letters dated 28 and 31 August 2015, respectively, requesting the payment of outstanding remuneration without success.

22. What is more, the Single Judge underlined that during the course of the investigation of the matter at stake, the Respondent did not present any evidence proving the payment of the outstanding remuneration requested by the Claimant.

23. In continuation, the Single Judge focused his attention on the Respondent´s allegations by means of which it argued that the Claimant terminated the contract without just cause based on formal reasons (professional certificate and contract´s homologation) and due to his unauthorised absence.

24. In this context, the Single Judge clarified that in accordance to the standard practice of the Players´ Status Committee and the Dispute Resolution Chamber, the validity of a contract cannot be subject to mere formalities.

25. Along those lines, the Single Judge emphasised that the Respondent never requested the Claimant any professional certificate. Moreover, the Single Judge acknowledged that the Claimant submitted a copy of his coach´s certificate issued on 3 June 2014 by the Football Association of Country E. What is more, the Single Judge highlighted that the contract was executed during a period of four months without the Respondent raising this argument or requesting the Claimant for any alleged certificate.

26. With regard to contract´s homologation, the Single Judge was keen to emphasise that as a general rule this formal requirement falls under the employer´s obligations, i.e. the Respondent.

27. In continuation, the Single Judge analysed the Respondent´s allegation related to the Claimant´s absence from training. In this respect, the Single Judge noted that the Respondent did not present any evidence in this regard. In any case, an alleged absence for just ten days cannot constitute per se a valid reason to not continue with a labour relationship.

28. In any case, the Single Judge stated that the Claimant presented enough documentary evidence proving that he tried to fulfil his contractual obligations as assistant coach of the first team (cf. article one of the contract) until the date of the termination.

29. As a consequence of all the above and considering that the Respondent had seriously failed to comply with its contractual obligations towards the Claimant in a continuous manner, by preventing the Claimant’s from performing his duties as the assistant coach of the team, by changing unilaterally his duties; by not remunerating the Claimant in accordance with the terms agreed in the contract and by replacing him with a new assistant coach, the Single Judge came to the conclusion that the Claimant had just cause to bring to an end his contractual relationship with the Respondent.

30. On account of all the above, the Single Judge decided that the Claimant had terminated the contract with just cause on 1 September 2015, date in which he sent an email informing the termination to the Respondent. What is more, the Single Judge emphasised that, in accordance with the general principle of pacta sunt servanda, the Respondent must fulfil the obligations it voluntarily entered into with the Claimant by means of the contract signed between the parties.

31. Bearing in mind the previous considerations, the Single Judge went on to deal with the potential financial consequences of the early termination of the employment contract with just cause by the Claimant.

32. In this respect and to begin with, the Single Judge analysed the outstanding remuneration requested by the Claimant, i.e. two monthly salaries i.e. July and August 2015, amounting to EUR 14,000 based on the terms agreed in the contract; match bonuses and flight tickets.

33. In this regard, the Single Judge reiterated that the Respondent did not present any evidence of having fulfilled the requested financial obligations contractually agreed by the parties.

34. In view of the foregoing, the Single Judge concluded that the Respondent still owed to the Claimant an amount of EUR 14,000 as two monthly salaries (July and August 2015) in accordance with article three of the contract.

35. In addition, the Single Judge took note that the Claimant had requested a 5% annual interest from 1 August and 1 September 2015 respectively over the relevant monthly salaries.

36. As a consequence, the Single Judge deemed appropriate to grant interest at a rate of 5% per annum over the two monthly salaries amounting to EUR 7,000 each from the relevant due dates (i.e. 1 August 2015 and 1 September 2015 respectively) until the date of effective payment.

37. With regard to the match bonuses requested by the Claimant, the Single Judge acknowledged that the Claimant supported his request only by presenting a breakdown of amounts. However, the Single Judge underlined that the Claimant did not present any documentary evidence proving his entitlement to receive the relevant bonuses.

38. In this context, the Single Judge referred to the content of art. 12 par. 3 of the Procedural Rules which states that “any party claiming a right on the basis of an alleged fact shall carry the burden of proof”, and decided based on said provision to reject the Respondent´s allegation.

39. In continuation, the Single Judge noted that the Claimant requested an undetermined amount as flight tickets. However, the Single Judge underlined that the Claimant did not present any documentary evidence proving cost of the requested flight tickets.

40. In this regard, the Single Judge reiterated the above-mentioned considerations (point 36 above) and concluded that the unspecified request for flight tickets should be rejected.

41. Turning his attention to the compensation requested by the Claimant payable for the unilateral termination with just cause by the latter, the Single Judge observed that the parties did not establish a specific contractual provision regarding the option to prematurely terminate the contract.

42. Consequently, the Single Judge concluded that, in accordance with its well-established jurisprudence of the PSC, the Claimant is entitled to a compensation equivalent, in principle, to the residual value of the contract, i.e. from 1 September 2015 until the end of its validity 30 June 2016.

43. In this regard, the Single Judge decided that, in principle, the Claimant would be entitled to receive the amount of EUR 70,000 from the Respondent as compensation for breach of the contract.

44. In continuation, the Single Judge verified as to whether the Claimant had signed an employment contract with another club or association during the relevant period of time (i.e. 1 September 2015 until 30 June 2016), 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 Claimant’s general obligation to mitigate his damages.

45. In this respect, the Single Judge remarked that the Claimant informed FIFA having concluded an employment contract on 1 January 2016 with the Football Federation of Country E valid until 31 December 2017, in accordance with which the Claimant was entitled to receive a monthly salary amounting to EUR 10,000.

46. Therefore, the Single Judge deemed, considering the Claimant’s obligation to mitigate the damages, that the damage compensation should be mitigated during the period from 1 January 2016 (date of signature of the employment contract with the Football Federation of Country E) until 30 June 2016 (end of validity of the contract).

47. Consequently, the Single Judge decided that the Respondent must pay to the Claimant the amount of EUR 28,000 as compensation equivalent to 4 monthly salaries, i.e. from 1 September 2015 (date of termination) until 1 January 2016 (signature of the employment contract with the Football Federation of Country E) as compensation for breach of contract. In this respect, the Single Judge pointed out that it is a fact that during said period of time the Claimant remain unemployed due to the breach of the contract committed by the Respondent.

48. Moreover, taking into account the Claimant’s request, the Single Judge decided to grant interest at a rate of 5% per year over the relevant compensation amounting to EUR 28,000 as from the date on which the Claimant lodged the present claim with FIFA, i.e. 30 September 2015.

49. Finally and with regard to the Claimant’s request for legal costs, the Single Judge decided to reject such request in accordance with article 18 par. 4 of the Procedural Rules as well as the Players’ Status Committee longstanding jurisprudence.

50. In view of all the above-mentioned considerations, the Single Judge decided that the claim of the Claimant is partially accepted and that the Respondent has to pay to the Claimant the amount of EUR 14,000 as outstanding remuneration as well as the amount of EUR 28,000 as compensation for breach of contract plus the respective interest.

51. Finally, 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 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.

52. In respect of the above, the Single Judge reiterated that the Claimant’s claim is partially accepted but that the Respondent is the party at fault. Therefore, the Single Judge concluded that both parties have to bear the costs of the current proceedings before FIFA.

53. 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. The amount in dispute to be taken into consideration in the present proceedings is of EUR 87,000. Therefore, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 10,000.

54. In view of the specific circumstances of the case, the Single Judge determined the costs of the current proceedings to the amount of CHF 10,000.

55. Consequently, and in line with the aforementioned, the Single Judge decided that the Claimant must pay the amount of CHF 2,000 and the Respondent must pay the amount of CHF 8,000 in order to cover the costs of the present proceedings.

56. The Single Judge concluded his deliberations by establishing that any other claim lodged by the Claimant is rejected.

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 14,000 as outstanding remuneration, plus interest as follows:

 5% per year on the amount of EUR 7,000 as from 1 August 2015 until the date of effective payment;

 5% per year on the amount of EUR 7,000 as from 1 September 2015 until the date of effective payment.

4. 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 amount of EUR 28,000 as compensation for breach of contract as well as 5% interest per year from 30 September 2015 until the date of effective payment.

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

6. If the aforementioned sum, plus interest as provided 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.

7. The final costs of the proceedings in the amount of CHF 10,000 are to be paid by both parties, within 30 days as from the date of notification of this decision, as follows:

7.1 The amount of CHF 8,000 has to be paid by the Respondent, Club C, 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

7.2 The amount of CHF 2,000 has to be paid by the Claimant, Coach A. Taking into account that the Claimant already paid to FIFA an amount of CHF 2,000 at the beginning of the present procedures as advance of costs, it is exempted to pay the said procedural costs.

Coach A, Country B / Club C, Country D 13

8. 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 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 article 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS, a copy of which we enclose hereto. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives).

The full address and contact numbers of the CAS are the following:

Court of Arbitration for Sport

Avenue de Beaumont 2

1012 Lausanne

Switzerland

Tel: +41 21 613 50 00

Fax: +41 21 613 50 01

e-mail: info@tas-cas.org

For the Single Judge of the

Players’ Status Committee

Omar Ongaro

Football Regulatory Director

Encl. CAS directives