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 four of the contract stated that the Respondent compromised to pay to the Claimant the following amounts:

(1) EUR 25,000 as net monthly salary during the period between 13 April 2015 until 30 June 2015;

(2) EUR 50,000 as net signing on fee payable 15 days after the signature of the contract;

(3) EUR 30,000 as net monthly salary during the period between 1 July 2015 and 30 June 2016.

3. Article eight of the contract provided that in case of controversy between the parties, they will refer their disputes to the jurisdictional instances of the Football Federation of Country D and FIFA.

4. On 14 September 2015, the Claimant lodged a claim in front of FIFA against the Respondent requesting the following amounts:

(1) EUR 50,000 as signing on fee plus 5% annual interest as from 29 April 2015;

(2) EUR 30,000 as salary of July 2015 plus 5% annual interest as from 1 August 2015;

(3) EUR 27,097 as salary of August 2015 plus 5% annual interest as from 29 August 2015;

(4) EUR 302,903 as compensation representing the residual value of the contract from 29 August 2015 until 30 June 2016, plus 5% annual interest as from 29 August 2015 and

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

5. In particular, the Claimant argued that on 29 August 2015, due to the persisted breaches of the contract by the Respondent, the Claimant terminated the contract with just cause after having put the Respondent in default for the first time on 6 July 2015.

6. In this context, the Claimant stated that on 19 August 2015, he sent a second default notice letter to the Respondent requesting the payment of said signing on fee, other outstanding amounts and warned the Respondent that the contract would be terminated “provided the payment of all outstanding amounts was not performed within a deadline of two days from its receipt”. However, both letters were to no avail.

7. The Claimant alleged that after sending said default letters, he started to receive threats by SMS and that on 27 August 2015 the local media informed about the official presentation of the new coach without being informed about it. Moreover, the Claimant stated that also on 27 August 2015, the Respondent (via an agent) sent an email to him informing about certain conversations regarding an agreement to terminate the contract and its financial terms. On the same date, the Claimant replied to the Respondent stating that no discussions were ever held between them and certainly no agreement had ever been reached to terminate the contact. In addition, the Claimant informed the Respondent about his availability to negotiate. The Claimant enclosed copy of media reports and email.

8. In continuation, the Claimant explained that also on 27 August 2015, the Respondent and the Claimant had a meeting without reaching an agreement. In the afternoon, the Claimant stated that he was not allowed to conduct that day training session as the coaching staff of the reserve team was instructed by the Respondent to do so. However, the Claimant headed to the training facilities to conduct the training session scheduled at 6 pm. Upon his arrival the Claimant found out that the training session was rescheduled to 8 pm without him or any of his assistants having been informed. According to the Claimant, he together with his assistants and a public notary returned to the training facilities at 7:30 pm and when they entered the pitch they found the coaching staff of the reserve team together with three representatives from the Respondent who informed him that he and his assistants were not allowed to conduct the training session. The Claimant reportedly reproached being prevented from the Respondent to fulfil his duties and deprived from his right to work. The Claimant provided with a copy of a notary deed referring to those facts.

9. The Claimant added that after the cited incidents still on 27 August 2015, he sent an email to the club summarizing all the facts of the day and warning the Respondent for the last time that the contract would be terminated should the contractual breaches persist and that on the subsequent day, he went to the training session accompanied by the notary, the doors of the facilities were locked and consequently he could not access. Allegedly, later that day, the press informed that a new coach had conducted the training session. The Claimant enclosed a copy of another notary deed referring to the cited facts.

10. Furthermore, the Claimant alleged that on 29 August 2015, the Respondent without informing him ordered the assistant coaches to hold the two daily training sessions. On the same date, the Claimant due to the unbearable situation informed the Respondent by email of the termination of the contract with immediate effect due to the persisted breaches by the Respondent of the contractual obligations.

11. The Respondent presented its position and first of all alleged that the FIFA´s deciding bodies are not competent to enter into this matter since the parties agreed in the article 8 of the contract that the deciding bodies of the Football Federation of Country D were the competent instances to decide in case of a dispute between the parties. The Respondent added that article 8 of the contract clearly established that the FIFA deciding bodies were the second option to solve possible disputes between the parties in defect of the instances of the Football Federation of Country D.

12. The Respondent alleged that the deciding bodies of the Football Federation of Country D assured the rights of both parties and guaranteed fair proceedings [cf. art. 22 c) of the Regulations]. In addition, the Respondent argued that the „National Dispute Resolution Chamber of Country D” is an independent commission with equal representation of players and clubs.

13. Regarding the substance of the matter, the Respondent alleged that since June 2015 the Claimant was contacting other teams such as the National team of Country E showing lack of interest for his work with the Respondent.

14. Moreover, the Respondent argued that the results of its team in the last three months demonstrated the bad planning of the Claimant, the lack of discipline and poor physical condition of the players.

15. Furthermore, the Respondent alleged that it always showed interest to continue with the employment relationship with the Claimant and rejected having failed to fulfil its obligations. The Respondent enclosed an email dated 27 August 2015 by means of which it informed the Claimant that he was still bound by the contract that a working plan will be communicated to him and that he has the obligation to be present in the training sessions in the scheduled time. The Claimant apparently answered on the same date expressing clearly his willingness to rescind the contract with immediate effect alleging interference in his functions.

16. The Respondent added that on 29 August 2015 it sent an email to the Claimant confirming the contract and informing him the working plan for the week between 31 August 2015 and 6 September 2015 and that on the same date the Claimant replied by email informing his decision to terminate the contract. The Respondent replied to the Claimant alleging that he terminated the contract unilaterally and in an abusive way.

17. Furthermore, the Respondent stated that the contract did not contain any provision allowing the immediate rescission of the contract for lack of payment of the signing on fee and that this was against article 16 of the Regulations on the Status and Transfer of Players (hereinafter: “the regulations”).

18. In his replica, the Claimant rejected the Respondent´s allegation that the FIFA deciding bodies are not competent to enter into this dispute. The Respondent 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 regulations, the FIFA Players´ Status Committee is competent to adjudicate in the present matter.

19. 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.

20. The Claimant contested the Respondent´s allegation that he had started contacts with the National team of Country E or other clubs during the validity of the contract.

21. In this respect, the Claimant stated that he always tried to find an amicable solution with the Respondent, showing interest in continuing and fulfilling the contract until the end “legitimately requesting to be paid in accordance with the terms agreed in the contract and to be allowed to perform his duties in normal conditions”.

22. The Claimant further added that the validity of an employment contract cannot be subject to sporting results in accordance with FIFA established jurisprudence.

23. Finally, the Claimant stated that the Respondent acknowledged in its position having failed to pay the signing on fee to him and omitted to mention the lack of payment of the monthly salaries corresponding to July and August 2015.

24. The Respondent in its final position reiterated its previous allegations and added that he unilaterally terminated the contract without just cause and was hired two months after the termination by the Football Federation of Country F.

25. Moreover, the Respondent argued that the Claimant failed to fulfil his contractual obligations since he was absent from the trainings sessions scheduled by the Respondent in accordance with the working plan enclosed to the emails dated 27 and 29 August 2015. The Respondent enclosed an statement issued by a notary stating that Claimant was absent from the training sessions on 26 and 27 August 2015 breaching his contractual obligations, in particular, article 7 of 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 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 14 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 the Respondent had contested the competence of FIFA’s deciding bodies arguing that pursuant to article eight of the contract the Football Federation of Country D´s deciding bodies were the first competent instance to enter into the substance of this matter.

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 Football Federation of Country D´s deciding bodies.

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 contain an arbitration clause, i.e. article eight in favour of the jurisdictional instances of the Football Federation of Country D and FIFA.

9. However, the Single Judge pointed out that article eight of the contract was clearly a non-exclusive clause which gives also to FIFA the competence to deal with disputes arising from the contract without providing priority to one instance over another one.

10. As a result of the aforementioned, the Single Judge concluded that the Respondent’s objection towards the competence of FIFA to deal with the present matter has to be rejected, and that the Single Judge of the Players’ Status Committee is 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.

11. 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 14 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).

12. The competence of the Single Judge and the applicable regulations having been established and entering into the substance of the matter, the Single Judge started by 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.

13. 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.

14. 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 terminated the contract unilaterally in an abusive way following bad planning and poor results of the team.

15. At this stage, the Single Judge acknowledged that it remained uncontested by the parties that on 29 August 2015 the Claimant sent an email to the Respondent terminating their employment relationship.

16. 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.

17. In this context, the Single Judge deemed appropriate to clarify first that in accordance with wall-established jurisprudence of the Players´ Status Committee (PSC), low performance or bad planning of a team are not, in principle, justified reasons to breach contractual obligations.

18. For the sake of good order, the Single Judge emphasised the firm and well-established jurisprudence of the PSC which states that as a general rule if a football team does not reach its sport´s objectives, this fact cannot constitute a valid reason for a club or an association to terminate an employment contract with a coach, since the performance´s evaluation done by a coach is a subjective perception which cannot be measured with objectives parameters and as a consequence it has to be considered as an inadmissible ground to put an employment relationship to an end. The Single Judge outlined that in principle this reasoning is also applicable even in cases in which parties had expressly agreed in writing in a contract that low performance could be a valid reason to terminate an employment contract.

19. Equally, The Single Judge noted that the Claimant had sent to the Respondent two default notice letters dated 6 July 2015 and 19 August 2015, respectively, in order to settle the present matter amicably requesting the payment of outstanding remuneration without success.

20. Furthermore, the Single Judge took note that during the course of the investigation of this matter, the Respondent did not present any evidence proving the payment of the outstanding remuneration requested by the Claimant.

21. Conversely, the Single Judge deemed that the Claimant presented enough documentary evidence showing that he tried to fulfil his contractual obligations and that the Respondent prevented him to lead the training sessions on 27 August 2015 and 28 August 2015 prior to the termination of the contract. What is more, the Single Judge took note that the Claimant argued that on 27 August 2015 the Respondent appointed a new coach and conducted the training sessions on that date. In this regard, the Single Judge remarked that the Respondent did not contest this allegation.

22. 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 head coach of the team, by not remunerating the Claimant in accordance with the terms agreed in the contract and by replacing him with a new 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.

23. On account of all the above, the Single Judge decided that the Claimant had terminated the contract with just cause on 29 August 2015, date in which he sent the letter of 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.

24. 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.

25. In this respect and to begin with, the Single Judge analysed the outstanding remuneration requested by the Claimant, i.e. signing on fee amounting to EUR 50,000 plus two monthly salaries (i.e. July and August 2015) amounting to EUR 60,000 based on the terms agreed in the contract.

26. 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.

27. In view of the foregoing, the Single Judge concluded that the Respondent still owed to the Claimant an amount of EUR 50,000 as signing on fee plus EUR 60,000 as two monthly salaries in accordance with article four of the contract.

28. In addition, the Single Judge took note that the Claimant had requested a 5% annual interest from 29 April 2015 over the relevant signing on fee and from 1 August and 29 August 2015 respectively over the relevant monthly salaries.

29. As a consequence, the Single Judge deemed appropriate to grant interest at a rate of 5% per annum over the amount of EUR 50,000 from 29 April 2015 until the effective date of payment. With regard to the outstanding monthly salaries, the Single Judge decided to grant interest at a rate of 5% per annum over the two monthly salaries amounting to EUR 30,000 each from the relevant due dates (i.e. 1 August 2015 and 1 September 2015 respectively) until the date of effective payment.

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

31. 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.

32. In this regard, the Single Judge decided that, in principle, the Claimant would be entitled to receive the amount of EUR 300,000 from the Respondent as compensation for breach of the contract.

33. 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 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 Claimant’s general obligation to mitigate his damages.

34. 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 F valid until 1 January 2018, in accordance with which the Claimant was entitled to receive a monthly salary amounting to EUR 45,000.

35. 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 F) until 30 June 2016 (end of validity of the relevant contract).

36. Consequently, the Single Judge decided that the Respondent must pay to the Claimant the amount of EUR 120,000 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 F) 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.

37. 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 120,000 as from the date on which the Claimant lodged the present claim with FIFA, i.e. 14 September 2015.

38. 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.

39. 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 110,000 as outstanding remuneration as well as the amount of EUR 120,000 as compensation for breach of contract plus the respective interest.

40. 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.

41. 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.

42. 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 410,000. Therefore, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000.

43. In view of the specific circumstances of the case, the Single Judge determined the costs of the current proceedings to the amount of CHF 17,000.

44. Consequently, and in line with the aforementioned, the Single Judge decided that the Claimant must pay the amount of CHF 5,000 and the Respondent must pay the amount of CHF 12,000 in order to cover the costs of the present proceedings.

45. 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 110,000 as outstanding remuneration, plus interest as follows:

 5% per year on the amount of EUR 50,000 as from 29 April 2015 until the date of effective payment;

 5% per year on the amount of EUR 30,000 as from 1 August 2015 until the date of effective payment;

 5% per year on the amount of EUR 30,000 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 120,000 as compensation for breach of contract as well as 5% interest per year from 14 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 17,000 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 12,000 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 5,000 has to be paid by the Claimant, Coach A. Taking into account that the Claimant already paid to FIFA an amount of CHF 5,000 at the beginning of the present procedures as advance of costs, it is exempted to pay the said procedural costs.

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