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, 10 November 2017

Decision of the Single Judge

of the Players’ Status Committee

passed in Zurich, Switzerland, on 10 November 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 17 June 2015, the Coach of Country B, Coach A (hereinafter: the Claimant) and the Club of Country D, Club C (hereinafter: the Respondent) signed an employment contract (hereinafter: the contract), valid as from the date of signature until 30 June 2017.

2. Pursuant to to art. 5.1 of the contract, the Claimant was entitled to receive, inter alia, a monthly salary of EUR 183,000, to be paid “on or before the end of each calendar month from July 2015 through June 2017”.

3. On 13 December 2015, the parties signed a settlement agreement in order to mutually terminate the contract as from the date of signature.

4. According to art. 2.1 of the settlement agreement, “excepting only the obligation of [the Respondent] created in [art.] 3 of this SETTLEMENT AGREEMENT, the [Claimant] specifically releases, waives, and forever discharges [the Respondent] […] from any and all past, present and/or future claims […] arising from or related to the [contract]”.

5. According to art. 3.1 of the settlement agreement, the parties agreed that “the [Respondent] shall, as full, complete and final settlement under the [contract], pay to the [Claimant], net of INCOME TAX OF COUNTRY D, a total amount of […] EUR 1,250,000 only as follows: (i) […] EUR 250,000 on 15th January 2016; (ii) […] EUR 250,000 on 15th April 2016; (iii) […] EUR 250,000 on 15th July 2016; (iv) […] EUR 250,000 on 15th October 2016; (v) […] EUR 250,000 on 15th January 2017”.

6. Furthermore, art. 4.1 of the settlement agreement provided that “notwithstanding anything to the contrary and without prejudice to the obligation created in [art.] 3 of this SETTLEMENT AGREEMENT, the [Claimant] hereby irrevocably and perpetually covenants not to sue, and/or bring any other legal action against [the Respondent] […] for any and all past, present and/or future claims […] arising from or related to the [contract]”. Art. 4.2 of the settlement agreement specified that “notwithstanding anything to the contrary and without prejudice to the obligation created in [art.] 3 of this SETTLEMENT AGREEMENT, the [Claimant] specifically, expressly and irrevocably agrees that this SETTLEMENT AGREEMENT may be pleaded as an absolute and final bar to any compliant or legal proceeding that may hereafter be prosecuted by the [Claimant] arising from or related to the [contract]”.

7. Additionally, art. 5.1 of the settlement agreement established that “each PARTY acknowledges and agrees that this SETTLEMENT AGREEMENT is a compromise of disputed claims”. Furthermore, art. 5.2 of the settlement agreement specified that “the [Claimant] acknowledges that neither this SETTLEMENT AGREEMENT, nor any consideration provided pursuant to this SETTLEMENT AGREEMENT, shall be taken or construed to be an admission or concession by [the Respondent] […] of any kind with respect to any fact, liability, or fault”.

8. According to art. 10.1 of the settlement agreement, the settlement agreement “supersedes any and all previous correspondence between the PARTIES in relation to the subject matter of this SETTLEMENT AGREEMENT” and art. 10.2 specified that “the PARTIES hereby expressly and irrevocably acknowledge and agree that no promises, representations, inducements, statements, or warranties, have been made by any PARTY other than those which are expressly set out in this SETTLEMENT AGREEMENT”.

9. In January and February 2016, the Claimant put the Respondent in default of payment of the first instalment of the settlement agreement as well as of his salary for November 2015 and 12 days of December 2015 on the basis of the contract, respectively.

10. On 15 March 2016, the Claimant lodged a claim against the Respondent in front of FIFA requesting to be awarded the total amount of EUR 503,838.70, as well as the reimbursement of legal expenses and interest at a rate of 12% p.a. “as from the day immediately after the date in which each of the amounts due became payable until the date of effective payment” as follows:

a. EUR 253,838 corresponding to the monthly salary of November 2015 (i.e. EUR 183,000), and 12 days of December 2015 (i.e. EUR 73,838);

b. EUR 250,000 corresponding to the first instalment agreed in art. 3 of the settlement agreement.

11. In his statement of claim, the Claimant also retained the right to amend his final requests in case the Respondent failed to pay the ensuing instalments agreed in the settlement agreement and falling due, respectively, on 15 April 2016, 15 July 2016, 15 October 2016 and 15 January 2017.

12. More specifically, the Claimant argued that, at the time of signing the settlement agreement on 13 December 2015, his monthly salary of November 2015 and the payment of the twelve days worked in December 2015 were still outstanding.

Moreover, the Claimant explained that, at the moment of lodging the claim, the Respondent had also failed to pay the first instalment of the settlement agreement, which had fallen due on 15 January 2016, notwithstanding the various default notices he had addressed to it.

13. Furthermore, and considering the absence of a different contractual provision on the matter, the Claimant requested the application of an interest rate of 12% p.a., allegedly in accordance with art. 406 of the Civil Code of Country B and art. 161 of the National Tax Code of Country B, given that the payments had to be performed in Country B, where he held his bank account.

14. In its reply, the Respondent rejected the claim in full, indicating that the amounts claimed by the Claimant were different from those agreed in the settlement agreement. In this regard, the Respondent pointed out that, according to the negotiations carried out with the Claimant, both parties had allegedly agreed upon a new date of payment for the first and second instalment set out in the settlement agreement, i.e. 25 April and 15 May 2016 respectively, but, regardless of that, the Claimant subsequently requested amounts that were not agreed in the settlement agreement.

15. In support of its argumentation, the Respondent recalled articles 4, 5 and 10 of the settlement agreement, by means of which, in essence, the Claimant had allegedly waived any rights arising out of the contract with the Respondent.

16. In his replica, the Claimant maintained his previous arguments and highlighted that, at the time of signing the settlement agreement, the Respondent also agreed to pay the outstanding salaries concerning November 2015 and 12 days of December 2015.

17. The Claimant further argued that the Respondent adopted a different approach with the rest of the coaching staff that had been hired together with him and who had terminated the employment relationship with the Respondent with almost identical agreements. More in particular, the Claimant explained that three members of the coaching staff were paid the outstanding amounts of November 2015 and twelve days of December 2015.

18. In consideration of the above, the Claimant claimed that the real intention of the parties was to also include the payment of the outstanding salaries until the signature of the settlement agreement. Furthermore, the Claimant argued that, in case of ambiguity regarding the meaning of a given clause, the principle “in dubio contra stipulatorem” must be applied. Therefore, in the case at hand, any dubious clause should be interpreted in his favour, as the settlement agreement had been drafted by the Respondent.

19. In continuation, the Claimant argued that, due to his limited command of English, he could not fully understand the clauses contained in the settlement agreement and, in this sense, he had been deceived by the Respondent.

20. In addition, the Claimant explained that the Respondent reached out to him in order to propose an amicable solution of the controversy only two months after the first instalment agreed in the settlement agreement had fallen due and that he refused to accept the new schedule for the payment of the first two instalments contained in the Respondent’s correspondence.

21. Subsequently, on 23 September and on 17 October 2016, the Claimant amended his claim, as new instalments of the settlement agreement had allegedly fallen due. With his last amendment, the Claimant requested to be awarded the total amount of EUR 1,253,838, as well as the reimbursement of legal expenses and an interest at a rate of 12% p.a. “as from the day immediately after the date in which each of the amounts due became payable until the date of effective payment” as follows:

a. EUR 253,838 corresponding to the monthly salary of November 2015 (i.e. EUR 183,000), and 12 days of December 2015 (i.e. EUR 73,838);

b. EUR 1,000,000 corresponding to “the first, second, third and fourth instalments” as agreed in art. 3 of the settlement agreement.

22. In its final position, the Respondent insisted on its previous statements of defence and recalled once more articles 2, 3, 4 and 5 of the settlement agreement in support of its argumentation. Furthermore, apart from noting that it could not be blamed for the Claimant’s poor knowledge of English, the Respondent underlined that it had never undertaken the obligation to pay the Claimant his salaries of November and December 2015 and explained that it paid the coaching staff those amounts at its own discretion and not because it had an obligation to do so. Consequently, the Respondent asked for the rejection of the Claimant’s claim and, in the alternative, to reject the request of the payment of the amount of EUR 253,838 and “to reduce the late interest to 5% p.a. in accordance with FIFA Regulations and previous case law”.

23. On 1 February 2017, after the investigation phase in the matter at hand had already been closed, the Claimant once more amended his claim, as the last instalment of the settlement agreement had allegedly fallen due, requesting to be awarded the total amount of EUR 1,503,838, as well as legal expenses and an interest at a rate of 12% p.a. “as from the day immediately after the date in which each of the amounts due became payable until the date of effective payment”, as follows:

a. EUR 253,838 corresponding to the monthly salary of November 2015 (i.e. EUR 183,000), and 12 days of December 2015 (i.e. EUR 73,838);

b. EUR 1,250,000 corresponding to “the first, second, third, the fourth and the fifth instalments” as agreed in art. 3 of the settlement agreement.

24. In reaction, the Respondent asked FIFA not to take into consideration the Claimant’s last amendment, as it was submitted after the closure of the investigation phase.

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 15 March 2016. 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. 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 4 in combination with art. 22 lit. c) of the Regulations on the Status and Transfer of Players (edition 2016), he is competent to deal with the matter at stake, which concerns an employment–related dispute with an international dimension between a Coach of Country B and a Club of Country D.

3. 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 Regulations on the Status and Transfer of Players (edition 2016), and on the other hand, to the fact that the present claim was lodged with FIFA on 15 March 2016. In view of the foregoing, the Single Judge concluded that the 2015 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.

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. 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.

5. In this respect and first of all, the Single Judge acknowledged that, on 17 June 2015, the Claimant and the Respondent had concluded an employment contract valid as from the date of signature until 30 June 2017, by means of which the Claimant was inter alia entitled to receive a monthly salary of EUR 183,000, to be paid “on or before the end of each calendar month from July 2015 through June 2017”.

6. In continuation, the Single Judge noted that, on 13 December 2015, the parties signed a settlement agreement by means of which they mutually terminated the employment contract as from the date of signature and agreed upon a total amount of EUR 1,250,000 to be paid to the Claimant in 5 equal instalments respectively falling due on 15 January 2016, 15 April 2016, 15 July 2016, 15 October 2016 and 15 January 2017.

7. Additionally, the Single Judge observed that, with subsequent amendments of his claim due to the ongoing expiry of the aforementioned instalments, the Claimant held that the Respondent owed him the total amount of EUR 1,503,838, consisting of the mentioned amount of EUR 1,250,000 provided for in the settlement agreement and the salary of November 2015 and 12 days of December 2015 on the basis of the contract.

8. Subsequently, the Single Judge took note that the Claimant argued that the Respondent had failed to remit him his dues envisaged in the settlement agreement and that, with regards to some of its clauses, he had been deceived by the Respondent due to his poor command of English. In this respect, the Claimant added that the rest of the coaching staff, which had been hired with him and had terminated the employment relationship with the Respondent by means of almost identical agreements, had received from the Respondent the payment of the salaries of November and December 2015. Furthermore, the Single Judge noted that the Claimant asked an interest rate of 12% p.a. to be applied on the amounts claimed in light of the fact that the payments had to be performed in Country B, where the Civil Code and the Tax Code allegedly establish such rate.

9. In continuation, the Single Judge observed that, for its part, the Respondent firstly asked for the rejection of the claim, pointing out that the parties had agreed upon a new payment date for the first two instalments. Furthermore, the Respondent explained that, by signing the settlement agreement, the Claimant waived any entitlements deriving from the original employment contract. Moreover, the Single Judge noted that the Respondent asked not to take into consideration the last one of the Claimant’s amendments, claiming it occurred after the investigation phase was closed.

10. Having said that, the Single Judge remarked that, according to art. 2.1 of the settlement agreement, the Claimant “[…] specifically releases, waives, and forever discharges [the Respondent] […] from any and all past, present and/or future claims […] arising from or related to the [contract]” and that, according to art. 4.1 of the settlement agreement, the Claimant “[…] irrevocably and perpetually covenants not to sue, and/or bring any other legal action against [the Respondent] […] for any and all past, present and/or future claims […] arising from or related to the [contract]”. Equally, the Single Judge noted that art. 4.2 of the settlement agreement specified that the Claimant “[…] specifically, expressly and irrevocably agrees that this SETTLEMENT AGREEMENT may be pleaded as an absolute and final bar to any compliant or legal proceeding that may hereafter be prosecuted by the [Claimant] arising from or related to the [contract]”.

11. Consequently, the Single Judge underlined that the aforementioned clauses inserted in the settlement agreement signed by both the Claimant and the Respondent unambiguously stipulate that the former waived any entitlements deriving from the contract previously signed with the latter. In addition, bearing in mind art. 12 par. 3 of the Procedural Rules, in accordance with which any party claiming a right on the basis of an alleged fact shall carry the burden of proof, the Single Judge deemed that the Claimant had presented no documentation which would demonstrate that his salaries for the month of November 2015 and 12 days of December 2015 would be excluded from the waiver referred to in the relevant clauses of the settlement agreement, or that the parties had separately agreed in writing that the Respondent would undertake to pay the Claimant such salaries.

12. Furthermore, the Single Judge highlighted that the Claimant signed the settlement agreement on 13 December 2015 while being fully aware of the contents of the aforementioned arts. 2.1, 4.1 and 4.2 contained therein. Consequently, should the Claimant consider to be entitled to receive his salaries for November 2015 and 12 days of December 2015, the Single Judge was of the opinion that the Claimant had the option to either not sign the settlement agreement in the first place or have these allegedly outstanding payments explicitly excluded from its legal effects.

13. In respect of the above, the Single Judge was equally eager to emphasise that a party signing a document of legal importance without knowledge of its precise contents, as a general rule, does so at its own responsibility. Consequently, the Single Judge had to reject the argument of the Claimant that he was deceived by the Respondent due to his poor command of the English language.

14. On account of the aforementioned, the Single Judge could not uphold the Claimant’s arguments and decided that, in light of the waiver contained in the duly signed settlement agreement (cf. numbers II./10 and II./11. above), the Claimant’s claim relating to salary for November 2015 and 12 days of December 2015 on the basis of the contract must be rejected.

15. After having established the foregoing, the Single Judge turned his attention to the Respondent’s position and, bearing in mind art. 12 par. 3 of the Procedural Rules, deemed that the Respondent had not presented sufficient and credible documentation which would demonstrate that the parties had agreed in writing to modify the provisions of the settlement agreement concerning the due dates of payment of the first two instalments. In this respect, the Single Judge was eager to underline that the exchange of correspondence between the parties submitted by the Respondent did not show that the Claimant had accepted to shift the due dates for payment of the first 2 instalments from 15 January and 15 April 2016 to, respectively, 25 April and 15 May 2016. Furthermore, the Single Judge took into account that the Respondent did not prove having paid any instalment to the Claimant.

16. This being established, the Single Judge focused on the outstanding amount in dispute. In this respect, the Single Judge deemed it important to recall art. 9 par. 4 of the Procedural Rules, according to which the parties are not authorised to supplement or amend their requests or their arguments, to produce new exhibits or to specify further evidence on which they intend to rely, after the notification of the closure of the investigation. In this context, the Single Judge observed that the Claimant’s final amendment of his claim occurred on 1 February 2017, after the investigation phase had already been closed, which occurred on 21 December 2016. Consequently, the Single Judge decided that he was prevented from taking into account the Claimant’s last amendment, by means of which he asked to be awarded also the last instalment provided for in the settlement agreement, which request could potentially be the object of a new petition against the Respondent.

17. In view of the aforementioned considerations, as well as 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 has to pay to the Claimant the outstanding amount of EUR 1,000,000.

18. Additionally and with regard to the Claimant’s request for interest, the Single Judge pointed out that no provision related to the payment of a specific amount of interest had been contractually agreed upon between the parties. As a result, and in accordance with his well-established jurisprudence, the Single Judge decided that the Respondent has to pay to the Claimant 5% interest p.a. on the amount of EUR 1,000,000 as from the day following the relevant due dates until the date of effective payment.

19. The Single Judge concluded that any further claim of the Claimant is rejected.

20. 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.

21. In this respect, 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 decided that the Claimant and the Respondent have to bear the costs of the current proceedings in front of FIFA.

22. 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 higher than CHF 200,001, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000.

23. 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 Committee in corpore, the Single Judge determined the costs of the current proceedings to the amount of CHF 20,000.

24. Consequently, the Claimant has to pay the amount of CHF 5,000 and the Respondent the amount of CHF 15,000 in order 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 C, has to pay to the Claimant, within 30 days as from the date of notification of this decision, the amount of EUR 1,000,000 plus 5% interest p.a. until the date of effective payment as follows:

a. 5% p.a. on EUR 250,000 as of 16 January 2016;

b. 5% p.a. on EUR 250,000 as of 16 April 2016;

c. 5% p.a. on EUR 250,000 as of 16 July 2016;

d. 5% p.a. on EUR 250,000 as of 16 October 2016.

3. If the aforementioned amount plus interest is 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.

4. Any further claim lodged by the Claimant is rejected.

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

5.1. CHF 15,000 by the Respondent to FIFA to the following bank account with reference to case no. XXX:

UBS Zurich

Account number 366.677.01U (FIFA Players’ Status)

Clearing number 230

IBAN: CH27 0023 0230 3666 7701U

SWIFT: UBSWCHZH80A

5.2. CHF 5,000 by the Claimant to FIFA. Given that the Claimant has already paid the amount of CHF 5,000 as advance of costs at the start of the present proceedings, the Claimant does not have to pay an additional amount as costs of the proceedings.

6. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittance under point 2 above is 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 (CAS)

Avenue de Beaumont 2

CH-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