F.I.F.A. – Players’ Status Committee / Commissione per lo Status dei Calciatori – coach disputes / controversie allenatori (2017-2018) – fifa.com – atto non ufficiale – Decision of the Single Judge of the Players’ Status Committee passed in Zurich, Switzerland, 27 September 2017

Decision of the Single Judge

of the Players’ Status Committee

passed in Zurich, Switzerland, on 27 September 2017,

by

Geoff Thompson (England)

Single Judge of the Players’ Status Committee,

on the claim presented by the assistant coach

Assistant Coach A, Country B

as Claimant

against the club

Club C, Country D

as Respondent

regarding an employment-related contractual dispute

between the parties

Facts of the case

1. On 20 February 2016, the Coach of Country B, Assistant Coach A (hereinafter: the Claimant or the coach) and the club of Country D, Club C (hereinafter: the Respondent or the club) concluded an “Assistant Senior Coach Employment Agreement” (hereinafter: the contract) valid from 20 February 2016 until 30 May 2016.

2. According to clause 3 of the contract, the Claimant was entitled to receive a salary of USD 215,000 payable as follows:

a. “USD 165,000 with consideration of signing fee to be paid as follows:

i. USD 25,000 in the date of signature of the contract,

ii. USD 60,000 before 15 April 2016,

iii. USD 60,000 before 30 May 2016.

b. Monthly salary: The remaining amount, as salary, in four equal monthly instalments of USD 12,500 on the latest day of each month (February, March, April and may) during the term hereof”.

3. On 18 February 2016, i.e. prior to the signature of the contract, the Claimant provided the Respondent with his bank details where all the payments due to him in accordance with the contract were to be made.

4. On 1 June 2016, the Claimant sent both a fax and an e-mail to the Respondent, requesting the payment of his outstanding salaries comprising part of the sign-on fee (cf. point I.2.a above) as well as his salaries of “four months” for the total amount of USD 190,000. Moreover, the Claimant granted the club a 15-day deadline to proceed with the payment as, on the contrary, he would lodge a claim in front of FIFA. The coach sent a similar e-mail on 15 June 2016, both letters were however to no avail.

5. On 22 September 2016, the Claimant lodged a claim against the Respondent in front of FIFA requesting the amount of USD 190,000 divided as follows:

a. USD 140,000 as unpaid part of the sign-on fee;

b. USD 50,000 as overdue salaries (USD 12,500 x 4);

c. “Interest legally due” as well as procedural costs.

6. In particular, the Claimant explained that, during the entire duration of the contract, he only received a small part of the sign-on fee (USD 25,000), with all the other amounts contained in the contract remaining unpaid.

7. In its reply to the claim, the Respondent argued being in “financial distress and hardship” and alleged it was “becoming insolvent”. Therefore, the Respondent asserted that if “the claimant accepts to be a secured creditor”, it offered to pay the owed amount, i.e. USD 190,000, in a “friendly settlement”.

8. In his replica, the Claimant refused the settlement agreement and asked FIFA to proceed with the case.

9. In its duplica, the Respondent reiterated its offer of a settlement.

I. 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 22 September 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. 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 4 as well as art. 22 lit. c) of the Regulations on the Status and Transfer of Players (edition 2016), he shall adjudicate on an employment-related dispute between a club and a coach that have an international dimension. As a consequence, the Single Judge confirmed that he was the competent body to decide on the present employment-related dispute between a Coach of Country B and a club of Country D.

3. 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 respect, he confirmed that in accordance with the art. 26 par. 1 and 2 of the Regulations (edition 2016) and taking into account that the present claim was lodged in front of FIFA on 22 September 2016, 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.

4. 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 all 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 he considered pertinent for the assessment of the matter at hand.

5. In this context, the Single Judge started by acknowledging that on 20 February 2016 the Claimant and the Respondent concluded an employment contract which expired on 30 May 2016.

6. The Single Judge further acknowledged that while the Claimant claimed the non-payment of his remuneration in the total amount of USD 190,000, the Respondent did not contest its debt with the Claimant in the aforementioned amount. The Single Judge further took note of the Respondent’s willingness “not to fight the matter in front of FIFA”, of its argument that it suffers financial distress and hardship, and of its suggestion to offer the claimed amount in a “friendly settlement” with the Claimant.

7. In view of all the above and bearing in mind the basic principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, the Single Judge concluded that the Respondent in fact acknowledged owing the coach the exact amount claimed and that the reasons given by the club for the non-payment of it up to this date cannot be considered as valid, in accordance with the jurisprudence of the Players’ Status Committee and the legal principle of pacta sunt servanda.

8. Consequently, the Single Judge decided that, in accordance with the contract, the Claimant was entitled to receive from the Respondent the amount of USD 140,000 as unpaid part of the sign-on fee, as well as USD 50,000 as outstanding salaries, thereby totalling USD 190,000. Moreover, regarding the Claimant’s request for interest, the Single Judge decided to grant it at a rate of 5% per year as of the date of the claim, i.e. 22 September 2016 until the date of effective payment, in accordance with the longstanding jurisprudence of the Players’ Status Committee.

9. 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 and its 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.

10. Furthermore and according to Annex 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 the amount claimed by the Claimant, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 20,000.

11. Along those lines, considering that the present case did not present any particular legal or factual difficulties and that the claim of the Claimant was mostly accepted, the Single Judge determined the costs of the current proceedings to the amount of CHF 15,000, to be borne entirely by the Respondent.

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

*****

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

1. The claim of the Claimant, Assistant 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 the present decision, the amount of USD 190,000 plus 5% interest p.a. as of 22 September 2016 until the date of effective payment.

3. In the event that the aforementioned amount, plus interest, is not paid within the stated time limit, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision.

4. Any further claims lodged by the Claimant are rejected.

5. The final costs of the proceedings in the amount of CHF 15,000 are to be paid, within 30 days as from the notification of the present decision, as follows:

5.1. The amount of CHF 4,000 by the Respondent to the Claimant.

5.2. The amount of CHF 11,000 by the Respondent to FIFA to the following bank account with reference to case nr. XXX:

UBS Zurich

Account number 366.677.01U (FIFA Players’ Status)

Clearing number 230

IBAN: CH27 0023 0230 3666 7701U

SWIFT: UBSWCHZH80A

6. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittances under points 2. and 5.1. 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