F.I.F.A. – Players’ Status Committee / Commissione per lo Status dei Calciatori – coach disputes / controversie allenatori (2018-2019) – fifa.com – atto non ufficiale – Decision of the Single Judge of the Players’ Status Committee passed in Zurich, Switzerland19 June 2019

Decision of the Single Judge

of the Players’ Status Committee

passed in Zurich, Switzerland, on 19 June 2019,

by

Vitus Derungs (Switzerland)

Single Judge of the Players’ Status Committee,

on the claim presented by the coach

COACH A, from country A

as “Claimant”

against the association

Football Association X, from country X

as “Respondent”

regarding a contractual dispute arisen between the parties.

I. Facts of the case

1. On 22 December 2015, the Coach A, from country A (hereinafter: the Claimant) and the Football Association of country X (hereinafter: the Football Association of country X or the Respondent) concluded an employment contract (hereinafter: the contract), valid “as from 1 December 2015 until 30 June 2018, i.e. until after the 2018 FIFA World Cup Russia is completed”.

2. According to article 2 of the contract, “Should [the Football Association X]’s National A Team fail to qualify for the 2018 FIFA World Cup Russia, the Parties agree for the Contract to be terminated immediately upon the last qualifying match, the play-off match included as well (if any), which is considered to be a qualifying cycle match”.

3. According to article 5 of the contract, the Claimant was, inter alia, entitled to receive from the Football Association X, from country X a monthly remuneration of 32,000 (approx. EUR 16,361), payable “latest by the 15th day in the current month for the previous month”.

4. By means of an email titled “conclusion of the executive committee of the Football Association X, from country X” dated 15 December 2017 and sent by Mr Y, i.e. “the executive director of administration of the Football Association X, from country X”, the Football Association X, from country X addressed to the Claimant the “conclusion” of the executive Committee of the Football Association X, from country X, dated 19 October 2017, which refers to art. 2 of the contract and inter alia stipulates that “this contract is terminated automatically starting from the date when the last qualifying match was played (10 October 2017 in country C), having in mind that after finishing this round the qualifying cycle for qualification to the 2018 FIFA World Cup Russia was finished, and our team did not manage to qualify” and that “the contract concluded with [the Claimant] is considered as terminated and ceased to be valid”.

5. On 9 May 2018, the Claimant lodged a claim against the Football Association X, from country X in front of FIFA, asking that the latter be ordered to pay to him outstanding remuneration in the total amount of 72,500 (approx. EUR 37,068), corresponding to i) the balance for October 2017 amounting to 23,000; ii) the salary for November 2017 amounting to 33,000 and iii) half of the salary for December 2017, amounting to 16,500.

6. More specifically, the Claimant affirmed that he remained employed by the Football Association X until 15 December 2017, i.e. the date on which he was notified with the “conclusion” of the executive committee of the Football Association X.

7. Moreover, the Claimant stated that the Football Association X had stopped paying him his remuneration as of 10 October 2017, i.e. the date of the last qualifying match of the national team in country C.

8. In this regard, the Claimant explained that following the last qualifying match of the national team on 10 October 2017, he allegedly attended a meeting of the executive committee of the Football Association X, from country X on 16 and 17 October 2017. Moreover, the Claimant held that the parties had established during the course of said meeting a clear schedule until 31 December 2017, which, according to him, proves the existence of a contractual relationship between the parties during that period of time.

9. In its reply, the Football Association X, from country X rejected the claim of the Claimant. In this context, the Football Association X, from country X referred to art. 2 of the contract and declared that “it is justified for this contract to be terminated after 10 October 2017 since the condition which had to be filled for extending the contract was obviously not filled”.

10. Moreover, the Football Association X, from country X stressed that the Claimant attended the meeting of the executive committee in October 2017 and was allegedly “notified and familiar with the fact that he will no more be the coach of national team of [the Football Association X, from country X] from 10 October 2017”. The Football Association X, from country X further argued that the Claimant “cannot claim that he found out for the termination of the contract after the conclusion of the executive committee was delivered to him by email on 15 December 2017”. In particular, the Football Association X, from country X declared that the Claimant’s departure was “largely and intensely covered by the Medias”.

11. In this context, the Football Association X, from country X claimed, considering that the national team did not qualify for the FIFA 2018 World Cup, that the contract “was terminated from the last match that national team of [the Football Association X, from country X] was played on 10 October 2017” and held that the Claimant “did not give any written evidence that the Football Federation X, from country X required his services after the termination of the contract”.

12. In his replica, the Claimant reiterated all of his demands and explained that he had been asked during the meeting of the executive committee in October 2017 to continue his work as coach of the national team.

13. Furthermore, the Claimant affirmed that “different work-related meetings took place at the Football Associations X’s premises between 24 October and 28 October 2017 in presence of the Technical Director of the Football Association X, from country X” and that “all of the expenses, travel and other notes had always been paid to him until 15 November 2017”.

14. In its duplica, the Football Association X underlined that the Claimant ”did not provide any relevant evidence which can rebut the indisputable fact that the contract was terminated on 10 October 2017” and “did not provide any proof which might be taken in consideration as activity which the Football Association X, from country X officially asked the coach to undertake”.

15. Finally, the Football Association X, from country X declared that “since the contract was terminated on 10 October 2017, the Football Association X finished the payments to Claimant at the end of before mentioned date since there was no reasonable ground for the Football Association X to keep the contract in force”.

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 9 May 2018. Consequently, the Single Judge concluded that the 2018 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 2019), he would, in principle, be competent to deal with the matter at stake, which concerns an employment–related dispute with an international dimension between a coach from country A and the Football Association X, from country X.

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 2019), and on the other hand, to the fact that the present claim was lodged with FIFA on 9 May 2018. In view of the foregoing, the Single Judge concluded that the 2018 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 22 December 2015, the Claimant and the Respondent signed an employment contract, valid “as from 1 December 2015 until 30 June 2018, i.e. until after the 2018 FIFA World Cup Russia is completed”, and according to which the Claimant was entitled to receive, inter alia, a monthly remuneration of 32,000 (approx. EUR 16,361), payable “latest by the 15th day in the current month for the previous month”.

6. In continuation, the Single Judge noted that, according to article 2 of the contract, “Should [the Football Association X]’s National A Team fail to qualify for the 2018 FIFA World Cup Russia, the Parties agree for the Contract to be terminated immediately upon the last qualifying match, the play-off match included as well (if any), which is considered to be a qualifying cycle match”.

7. Subsequently, the Singe Judge observed that, by means of an email dated 15 December 2017, the Football Association X addressed to the Claimant the “conclusion” of the executive committee of the Football Association X, dated 19 October 2017, which contains a clear reference to art. 2 of the contract and, inter alia, stipulates that “this contract is terminated automatically starting from the date when the last qualifying match was played (10 October 2017 in country C), having in mind that after finishing this round the qualifying cycle for qualification to the 2018 FIFA World Cup Russia was finished, and our team did not manage to qualify” and that “the contract concluded with [the Claimant] is considered as terminated and ceased to be valid”.

8. In continuation, the Single Judge took note that the Claimant substantially argued that he remained employed by the Football Association X until 15 December 2017, i.e. the date on which he was notified with the “conclusion” of the executive committee of the Football Association X.

9. The Single Judge also observed, as further alleged by the Claimant, that the Respondent would have stopped paying him his remuneration as of 10 October 2017, i.e. the date of the last qualifying match of the national team in country C. In this regard, the Single Judge noted that the Claimant affirmed being entitled to the total amount of 72,500, corresponding to i) the balance for October 2017 amounting to 23,000; ii) the salary for November 2017 amounting to 33,000 and iii) half of the salary for December 2017, amounting to 16,500.

10. In continuation, the Single Judge observed that, for its part, the Respondent rejected the claim of the Claimant and stressed that since the national team failed to qualify for the 2018 World Cup, art. 2 of the contract was fully applicable and the contract came to an end on the date of the last qualifying match of the team, i.e. on 10 October 2017. Moreover, the Single Judge equally noted that the Respondent stressed that the Claimant’s departure was “largely and intensely covered by the Medias” and that the latter attended a meeting of the executive committee in October 2017 and was informed that he was no longer the coach of the national team of the Football Association X, from country X. Finally, the Single Judge took note that the Respondent affirmed that the Claimant “did not give any written evidence that the Football Association X required his services after the termination of the contract”.

11. On account of the above, the Single Judge highlighted that the underlying issue in this dispute, considering the diverging position of the parties, was to determine whether the contract came to an end on 10 October 2017, i.e. on the last qualifying match of the national team in accordance with art. 2 of the contract or on 15 December 2017, i.e. the date on which the Claimant was notified with the “conclusion” of the executive committee of the Football Association X, from country X.

12. In this context, the Single Judge proceeded with an analysis of the circumstances surrounding the present matter, the parties’ arguments as well the documentation on file, 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.

13. In continuation, the Single Judge turned his attention to the content of art. 2 of the contract, which stipulates that “Should [the Football Association X]’s National A Team fail to qualify for the 2018 FIFA World Cup Russia, the Parties agree for the Contract to be terminated immediately upon the last qualifying match, the play-off match included as well (if any), which is considered to be a qualifying cycle match”.

14. In this context, the Single Judge firstly noted that the Claimant did not contest the validity of art. 2 of the contract, a pre-agreed early termination of the contract, which is for the benefit of both parties.

15. Along these lines, the Single Judge pointed out that it remained undisputed by the parties that the national team failed to qualify for the 2018 World Cup and that the last qualifying match of the national team took place in country C on 10 October 2017.

16. Having established the above, the Single Judge further observed that the Claimant affirmed that, contrary to the Respondent’s allegations, he remained employed by the Football Association X until 15 December 2017, i.e. the date on which he was notified with the “conclusion” of the executive committee of the Football Association X. In this regard, the Single Judge noted that, according to the Claimant, he attended a meeting of the executive committee of the Football Association X in October 2017 and held that he had been asked to continue his work as coach of the national team until 31 December 2017.

17. Furthermore, the Single Judge took note of the allegations of the Claimant that “different work-related meetings took place at the Football Association X’s premises between 24 October and 28 October 2017” and that “all of the expenses, travel and other notes had always been paid to him until 15 November 2017”.

18. Bearing in mind the foregoing, the Single Judge deemed it appropriate to recall the general principle of burden of proof stipulated in art. 12 par. 3 of the Procedural Rules, according to which any party claiming a right on the basis of an alleged fact shall carry the burden of proof.

19. In this context, the Single Judge observed that the Claimant did not submit any evidence in support of his allegations that he remained employed until 15 December 2017.

20. Consequently, and considering the specific wording of art. 2 of the contract, the Single Judge concluded that it can be established that the contract came to an end on 10 October 2017, i.e. on the last qualifying match of the national team.

21. All the above led the Single Judge to conclude that the claim of the Claimant has to be rejected, considering that it remained uncontested that all the remuneration due to the Claimant, up until 10 October 2017, had been duly paid to the latter.

22. 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.

23. In this respect, the Single Judge reiterated that the claim of the Claimant is rejected. Therefore, the Single Judge decided that the Claimant has to bear the entire costs of the current proceedings in front of FIFA.

24. 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 lower than CHF 50,000, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 5,000.

25. In conclusion and taking into account that the present decision was taken by the Single Judge and not by the Players’ Status in corpore and that it did not pose any particular legal or factual difficulty, the Single Judge determined the costs of the current proceedings to the amount of CHF 5,000.

26. Consequently, the amount of CHF 5,000 has to be paid by the Claimant 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 rejected.

2. The final costs of the proceedings in the amount of CHF 5,000 are to be paid by the Claimant to FIFA, EUR 885.27 of which have already been paid as advance of costs at the start of the present proceedings. Consequently, the additional amount of CHF 4,000 is to be paid by the Claimant to FIFA within 30 days of notification of the present decision, 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

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).

Coach A, from country A / Football Association X, from country X 9

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

e-mail: info@tas-cas.org

For the Single Judge of the

Players’ Status Committee

Emilio García Silvero

Chief Legal & Compliance Officer

Encl. CAS directives