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, Switzerland16 April 2019

Decision of the Single Judge

of the Players’ Status Committee

passed in Zurich, Switzerland, on 16 April 2019,

by

Jose Luis Andrade (Portugal)

Single Judge of the Players’ Status Committee,

on the claim presented by the coach

Coach A, Country B

as “Claimant”

against the

Football Federation of Country C

as “Respondent”

regarding a contractual dispute arisen between the parties.

I. Facts of the case

1. On 19 November 2015, the Coach of Country B, Coach A (hereinafter: the Claimant), from Country B, and the Football Federation of Country C (hereinafter: the Respondent) concluded an employment contract (hereinafter: the contract), valid as from 1 December 2015 “for a fix term until the end of the Asian Qualification Round for the FIFA World Cup 2022”, by means of which the Claimant was appointed “as Technical Director of the FOOTBALL FEDERATION D [i.e. the association]” and was inter alia entitled to receive from the latter, as salary, USD 5,000 monthly, payable on the last day of each month.

2. As further provided in the contract: “in case the first national team of the FOOTBALL FEDERATION D qualifies for the FIFA World Cup 2022, this Employment Contract is automatically extended for a fix term until the end date of the FIFA World Cup 2022”.

3. The following bonuses were payable to the Claimant by the Respondent as per the contract:

“a) the first national team of the FOOTBALL FEDERATION D wins an international match – 500 USD

b) Qualification of the first national team of the FOOTBALL FEDERATION D for the Asian Cup 2019 Games – one monthly salary

c) Tournament E Champion 2015 – 2 monthly salaries

d) Qualification of the first national team of the FOOTBALL FEDERATION D for the Asian Game Final – 4 Monthly salaries

e) the first national team of the FOOTBALL FEDERATION D is Champion of the Asia Cup 2019 – 500,000 USD

f) the first national team of the FOOTBALL FEDERATION D is in 2nd Position of the Asia Cup 2019 – 250,000 USD

g) the first national team of the FOOTBALL FEDERATION D is in 3rd position of the Asia Cup 2019 – 125,000 USD”.

4. In continuation, the contract specified the following: “in addition, in view of the possible need for an interim or long-term replacement of the current Head Coach of the first national team, the Technical Director is also willing to assume responsibility as Head Coach for the first national team of the FOOTBALL FEDERATION D on an interim or long-term basis, should the necessity arise”.

5. The following job description for the Technical Director was included in the contract:

“a) try to bring into top 10 in FIFA Ranking Asia by 2022

b) Try to bring into top 15 in the Technical Ranking of the AFC

c) Try Develop the Youth National Teams of Country C in the highest international standards

d) Try Develop the Football Academy of the FOOTBALL FEDERATION D

e) Develop the Coaches

f) Try Develop the Standard Education Plan

g) Develop a clear philosophy of Football in Country C within the next 6 months

h) Create a short, medium and long term development plan for the FOOTBALL FEDERATION D with the support of the President and of the FOOTBALL FEDERATION D

i) Develop the FOOTBALL FEDERATION D Strategy plan

j) Monitor the FOOTBALL FEDERATION D Club licensing

k) Develop the Women’s National Teams

l) Develop the Grassroots Football within the FOOTBALL FEDERATION D

m) Develop the «A” National Team of Country C in highest international standards

n) Develop the Yearly Calendar

o) Develop an Information Database

p) Develop the Scouting System in Country C

q) Develop the Video Analysis system

r) Develop the Goal Keeper Coaches

s) Develop the Physical / Fitness / Condition Coaches

t) Develop the Medical System and Medical Treatment within the FOOTBALL FEDERATION D”.

6. Furthermore the “Technical Director” was “the only authorized person to choose and appoint the Coaches and Managers of the national teams of the FOOTBALL FEDERATION D (..)”.

7. The following “specific responsibilities” of the Technical Director were also mentioned in the contract:

“a) the Technical Director agrees to monitor the quality of the youth national teams that are selected by the FOOTBALL FEDERATION D to improve and develop their abilities inside and outside of a football match.

b) the Technical Director agrees to monitor the process of the players’ development of the youth national teams (any age).

c) the Technical Director will duly consider any request or proposal concerning improvement of football made by the FOOTBALL FEDERATION D and cooperate to his best efforts.

d) the Technical Director will take responsibility to deliver any kind of report that is linked with any of the national football teams of the FOOTBALL FEDERATION D. Such reports must be made to the President of the FOOTBALL FEDERATION D.

e) the Technical Director accepts the general sporting targets that have been discussed with the FOOTBALL FEDERATION D and which are set out in this contract.

f) the Technical Director will communicate any direct cost of travel, promotion or any other direct cost that is linked to the activity of his position on time and in advance to the FOOTBALL FEDERATION D. The FOOTBALL FEDERATION D will reimburse such costs, to the extend they are of a reasonable level and directly linked to the professional activities of the Technical Director.

g) after each game, the Technical Director must make himself available for a report about the game to the President of the FOOTBALL FEDERATION D and to answer questions by the media about the respective game.”

8. In accordance with art. 15 of the contract, the Respondent could terminate its contractual relationship “with immediate effect whenever the Technical Director misuses or damages the name and image of the FOOTBALL FEDERATION D or in case the Technical Director seriously and repeatedly violates his contractual duties”.

9. In case of termination of the contract without just cause by the Respondent, the latter had to “pay to the Technical Director an amount equalling one full yearly salary or the remaining salaries due under the contract, whichever is less, within 45 days as of the day of termination, if not, the full contract must be paid in 30 days” (cf. art. 16 par. 1 of the contract).

10. Equally, in case of termination of the contract without just cause by the Claimant, the latter had to pay to the Respondent “an amount equalling Four monthly salaries or an amount equalling the remaining salaries due under the contract, whichever is less, within 45 days as of the day of termination” (cf. art. 16 par. 1 of the contract).

11. In the same context, art. 17 of the contract specified that “any termination, whether rightful or without just cause, can always only be made with a notice period of 2 months as per the end of the calendar month”.

12. Finally, art. 13 of the contract stated the following: “The Technical Director agrees that he has to stay in Country C for at least half of the period of each contractual year for his work for the FOOTBALL FEDERATION D. Even when the Technical Director is not present in Country C, he is in any event obliged to devote 75% of each contractual year to his duties towards the FOOTBALL FEDERATION D”.

13. By means of a correspondence dated 22 March 2017 (hereinafter: the termination letter), the Claimant terminated the contract accusing the Respondent of inter alia having overdue payables towards him. In the same correspondence, the Claimant mentioned that he had been forced to leave Country C on 9 November 2016 because he had feared for his own safety.

14. By means of several pieces of correspondence, the first one dated 26 May 2017, the Claimant lodged a claim before FIFA against the Respondent and requested from the latter the payment of at least USD 400,000, plus 5% interest p.a. as of 1 July 2017.

15. To begin with, the Claimant accused the Respondent of having endangered his life by leaving him alone and without bags, documents, flight tickets or money in the middle of the city of City G on 9 November 2016, after he had confronted its secretary general in connection with an allegation of match fixing which had allegedly occurred in October 2016 in Malaysia.

16. According to the Claimant, as a consequence of the above, the bus which was supposed to drive him and the team to Country F for a match, left without him.

17. The Claimant further alleged that, for security reasons, he had decided to flee the country on the same day, i.e. on 9 November 2016.

18. From the Claimant’s point of view, considering the aforementioned circumstances, i.e. the alleged match fixing issue and the potential danger for his own life, he was no longer in a position to keep working for the association or to return to Country C. In this respect, the Claimant was eager to emphasize that, in accordance with his contract, he had not been under the obligation to remain in Country C.

19. In continuation, the Claimant elucidated that, by the time he had formally terminated the contract, i.e. 22 March 2017 (cf. point 10 above), four monthly salaries had been outstanding and a new head coach had been hired by the association, allegedly in February 2017. As a result, he deemed having had just cause to terminate his contractual relationship with the Respondent.

20. With regard to the claimed amount, the Claimant clarified that, when he left Country C in November 2016, the sum of EUR 6,000, corresponding to travel expenses in which he had allegedly incurred between March and November 2016, had been outstanding. Hence, from his point of view, the Respondent had to pay him such amount.

21. Equally, and because he considered that the termination of the contract had occurred as a consequence of the Respondent’s wrongful behaviour, the Claimant believed that the Respondent had also to pay him an amount equal to the remaining value of the contract as compensation for breach of contract.

22. In this respect, he requested compensation from the Respondent, as of November 2016, in the amount of USD 246,000, corresponding to 41 times the amount of USD 6,000. As to that, the Claimant alleged having been entitled to receive from the Respondent a monthly salary of USD 5,000, plus USD 1,000 in bonuses.

23. Additionally, and in case the contract was extended (cf. point 2 above), the Claimant mentioned that he would be entitled to receive from the Respondent the payment of USD 96,000, corresponding to his salary until July 2016, plus the amount of USD 500 for every match won by the Respondent as well as the sum of USD 20,000 in case the association qualified for the Asian Cup.

24. Equally, the Claimant argued that the Respondent had failed to pay him the flight ticket to go back home from Country C.

25. Finally, the Claimant clarified that, during the following matches, he had accompanied the Respondent as coach although, officially, he had still been employed as technical director: on 12 November 2015; on 24 December 2015; on 26 December 2015; on 28 December 2015; on 31 December 2015; on 3 January 2016; on 24 March 2016; on 29 March 2016; on 5 September 2016 and on 11 October 2016.

26. In its response on 9 July 2018, the Respondent rejected the claim of the Claimant and contested FIFA’s competence to decide over the dispute at stake.

27. In this respect, the Respondent pointed out that the Claimant had been hired as technical director and clarified that, only because its “national team” had been “in need of a replacement for its former Head Coach, it was agreed that the Technical Director would, on an interim basis, also accept to take care of the national team “should the necessity arise”

28. In the same context, the Respondent added that even the Claimant had acknowledged on several occasions having been hired as technical director.

29. From the Respondent’s point of view, after having realized that FIFA would not be competent to hear his claim as technical director, the Claimant had changed “his position” and claimed “that he was in fact hired as national coach [which] is obviously contradictory and self-serving.”

30. In continuation and “in the unlikely event that FIFA would address the merits of this case”, the association contested the claim of the Claimant as to its substance arguing that, in fact, he had been the one who had terminated their contractual relationship without just cause by “refusing to accompany his team to a friendly match, by travelling home instead and by refusing to take up his duties again afterwards”.

31. According to the Respondent, shortly after having “assumed temporary responsibility for the national team”, “serious disagreements arose” between the Claimant and its management. As to that, the Respondent provided FIFA with an exchange of email which apparently occurred in October 2016.

32. As further alleged by the Respondent, the attitude of the Claimant “quickly became more and more hostile” and the overall tense situation culminated in a meeting held between the latter and its representatives on 9 November 2016, where the Claimant allegedly “made several very substantial demands (..) complained about the composition of the national team and about several players, and he requested a new contractual arrangement”.

33. Equally, the Respondent clarified that, following the aforementioned meeting and because no agreement could be reached between the Claimant and its president, he refused to “accompany the team and (..) travel to Country F. Therefore, the bus with all players had to leave to reach the scheduled flight, and the national team of the Respondent was left without a coach or this important match”. As to that, the Respondent elucidated that, before the bus left, the Claimant’s luggage was taken out and brought to the latter but that, “by mistake”, one of his bags “was left behind in the luggage compartment of the bus. As soon as this was realized, this bag was immediately delivered to the Claimant”.

34. In continuation, the Respondent explained that, after the aforementioned incident had occurred, the Claimant had requested to return to his country, a wish which it had accommodated hoping to “ease the tensions” with the latter. In this context, the Respondent provided two emails dated 9 and 10 November 2016, respectively, addressed to the Claimant as well as a message dated 9 November 2016, allegedly received from him.

35. The Respondent continued its allegations against the Claimant by accusing the latter of having started to “post very serious accusations” against it on Facebook as soon as he had returned home, and of having also publicly announced on social media that he was stepping down as its national coach. The Respondent provided FIFA with a printout from Facebook in which the Claimant, inter alia, mentioned that the Respondent had prevented him to go to the friendly game scheduled to take place on 9 November 2016.

36. From the Respondent’s point of view, considering the aforementioned as well as the Claimant’s lack of response to its correspondence of 12 and 15 November 2016, by means of which he was asked to take down the relevant Facebook posts and to specify whether he intended to terminate the contract or not, it had been entitled to stop paying the latter’s salary as he had clearly been in breach of his contractual obligations.

37. Subsequently, the Respondent made it clear that it had always complied with all of its contractual obligations and that “at all times” it had “ensured the safety and the security” of the Claimant.

38. Finally, the Respondent contested the allegations of match fixing made by the Claimant and added that, “even if these allegations were true – quod non – they certainly cannot justify that the Claimant suddenly stop to comply with this contractual obligations.” Additionally, the Respondent stressed that it had duly investigated such allegations and also made all the necessary reports “to the competent football authorities”.

39. In addition, the Respondent accused the Claimant of having returned to Country C on several occasions without however resuming his duties as per the contract. “Instead [he] sought contact to candidates opposing the current president and management (..). It appears that the Claimant was hoping that in the next presidential elections of the FOOTBALL FEDERATION D [i.e. the Respondent], these opposition candidates would win and he could return to his position with better financial conditions”.

40. All in all, the Respondent deemed that the termination of the contract by the Claimant had occurred without just cause and that the latter had failed to provide any evidence to the contrary.

41. Equally, the Respondent recalled that the Claimant had never “issued even a single warning (..) that he intended to terminate his contract” and pointed out that it would be entitled to lodge a counterclaim against the latter. “However [the Respondent] has no interest in such an additional legal dispute (..).”

42. Finally and “only for the extremely unlikely event that the FIFA Player’s Status Committee would consider the claim of the Claimant as justified”, the Respondent requested for art. 16 par. 1 of the contract to be taken into account (cf. point 10 above). As a result, the Respondent deemed that “the maximum amount the FIFA Players’ Status Committee could award to the Claimant is (..) a sum of USD 60,000.00 payable within 45 days as from the decision rendered by FIFA”. For such a case, the association requested FIFA to take into account the fact that the coach only entered into a new employment relationship in March 2018 and therefore failed to “mitigate his own damage” .

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 referred to art. 21 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (editions 2017 and 2018). Consequently, and since the present matter was submitted to FIFA on 26 May 2017, the Single Judge concluded that the 2017 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 2018 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 has an international dimension.

3. As a consequence, the Single Judge would, in principle, be the competent body to decide on the present employment-related dispute involving a Coach of Country B and the Football Federation of Country C.

4. However, the Single Judge acknowledged that the Respondent had contested the competence of FIFA to take a decision on the matter at stake, arguing that the Claimant had mainly been hired as Technical Director.

5. With the aforementioned considerations in mind, the Single Judge turned his attention to the content of the contract and noticed, inter alia, that in accordance with the document in question, the Claimant had been hired as Technical Director. Equally, the Single Judge remarked that, as per the document in question, the Claimant had agreed to assume the role of coach of the Respondent “ad interim or long-term basis, should the necessity arise”.

6. In addition, the Single Judge recalled that the Respondent itself had confirmed that, at some point during the course of their employment relationship, the Claimant had taken over the role of coach.

7. Hence, considering the content of the contract and bearing in mind that it was undisputed that the Claimant had also acted as coach of the Respondent, the Single Judge concluded that it had to be assumed that the Claimant had been partially hired as coach.

8. Consequently, the Single Judge concluded he was competent to enter in the matter at hand.

9. 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 2016 and 2018 editions of the Regulations on the Status and Transfer of Players, and on the other hand, to the fact that the present claim was lodged with FIFA on 26 May 2017. In view of the foregoing, the Single Judge concluded that 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 (cf. art. 26 par. 1 and 2 of the Regulations).

10. 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.

11. In doing so and first of all, the Single Judge noted that the Claimant and the Respondent had concluded an employment contract, which was originally valid from 1 December 2015 “for a fix term until the end of the Asian Qualification Round of the FIFA World Cup 2022”, the financial terms of which are recalled at points I.1. and I.3 above.

12. The Single Judge further realized that, in accordance with art. 15 of the contract, the Respondent could terminate its contractual relationship with the Claimant “with immediate effect whenever the Technical Director misuses or damages the name and image of the FOOTBALL FEDERATION D or in case the Technical Director seriously and repeatedly violates his contractual duties” whereas in case the termination of contract occurred without just cause, the Respondent had to “pay to the Technical Director an amount equalling one full yearly salary or the remaining salaries due under the contract, whichever is less, within 45 days as of the day of termination, if not, the full contract must be paid in 30 days” (cf. art. 16 par. 1 of the contract).

13. Equally, the Single Judge took note of the fact that, in case of termination of the contract without just cause by the Claimant, the latter had to pay to the association “an amount equalling Four monthly salaries or an amount equalling the remaining salaries due under the contract, whichever is less, within 45 days as of the day of termination” (cf. art. 16 par. 1 of the contract).

14. In continuation, the Single Judge acknowledged that, on 22 March 2017, the Claimant had terminated the contract in writing accusing the Respondent of, inter alia, having overdue payable towards him.

15. Similarly, the Single Judge took note of the fact that, in his claim to FIFA, the Claimant had, inter alia, requested from the Respondent the payment of outstanding remuneration and of compensation for breach of contract, arguing that the termination of the contract had occurred with just cause following the non-payment by the Respondent of four of his monthly salaries, and considering the physical danger in which the Respondent had put him since November 2016.

16. The Single Judge further remarked that, for its part, the Respondent, had rejected the claim and allegations of the Claimant, maintaining that the contract had been terminated by the latter without just cause.

17. After having carefully analyzed the parties’ submissions and the documentation at his disposal, the Single Judge established that the first question that had to be addressed in the present matter was whether the contract between the parties was terminated by the Claimant with or without just cause.

18. In this regard and to begin with, the Single Judge recalled that it had remained uncontested that, although the termination letter was only issued on 22 March 2017, the Claimant had de facto already stopped working for the Respondent on 9 November 2016.

19. The Single Judge further recalled that the Respondent had admitted having ceased to pay the Claimant’s salary as of November 2016.

20. In the same context, the Single Judge bore in mind that the Claimant had alleged having been forced to leave Country C because his life had been in imminent danger.

21. Considering all the aforementioned, the Single Judge referred to art. 12 par. 3 of the Procedural Rules and emphasised that, in accordance with the provision in question, any party deriving a right from an alleged fact shall carry the burden of proof.

22. Taking into account the aforementioned principle and reverting to the documentation presented by the Claimant, the Single Judge realized that the latter had failed to provide documentary evidence in support of the allegation that his life in Country C would have been in danger. Equally, the Single Judge remarked that no evidence had been provided by the Claimant demonstrating that the Respondent would have breached the contract in such a way that could justify the fact that, after November 2016, he had ceased to render his services to the latter.

23. As a result of the above, the Single Judge came to the conclusion that the Claimant had no just cause to stop working for the Respondent as of November 2016. Hence, from the Single Judge’s point of view, the non-payment of the Claimant’s salary by the Respondent as of the latter’s departure from Country C had been justified by the fact that the Claimant was no longer providing his services under the contract.

24. In view of the aforementioned, the Single Judge established that the Claimant had no just cause to terminate the contract and that, therefore, the Claimant’s claim related to the payment of compensation for breach of contract had to be rejected.

25. After having established the aforementioned, the Single Judge turned his attention to the second part of the Claimant’s claim, i.e. his request for the payment of EUR 6,000, allegedly corresponding to travel expenses he allegedly incurred between March and November 2016.

26. In this context, the Single Judge referred once again to art. 12 par. 3 of the Procedural Rules and pointed out that no evidence had been provided by the Claimant in support of his allegation concerning the aforementioned travel expenses. As a result, the Single Judge established that the Claimant’s request related to the payment of the amount of EUR 6,000 as outstanding travel expenses had to be rejected for lack of evidence.

27. In continuation and as to the Claimant’s allegation that the Respondent had failed to pay him the flight ticket to return home in November 2016, the Single Judge was eager to emphasize that the contract did not include any provision indicating that the Respondent would have had to pay the Claimant’s flight between his home country and Country C. Therefore, the Single Judge decided that also this last part of the Claimant’s claim was to be rejected as it lacked a contractual basis.

28. In view of all the aforementioned, the Single Judge concluded that the claim of the Claimant is rejected.

29. 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, including 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 (cf. art. 18 par. 1 of the Procedural Rules).

30. 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 costs of the current proceedings in front of FIFA.

31. 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 above CHF 200,001, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000.

32. In conclusion, and considering that the case at hand was adjudicated by the Single Judge and not by the Players’ Status Committee in corpore and that it did not pose any particular legal or factual difficulties, the Single Judge determined the costs of the current proceedings in the amount of CHF 20,000.

33. Consequently, the Claimant has to pay the amount of CHF 20,000 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 admissible.

2. The claim of the Claimant, Coach A, is rejected.

3. The final costs of the proceedings in the amount of CHF 20,000 are to be borne by the Claimant. Considering that the Claimant already paid an advance of costs in the amount of CHF 5,000 at the start of the present proceedings, the Claimant has to pay the remaining amount of CHF 15,000 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

*****

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

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

Emilio García Silvero

Chief Legal & Compliance Officer

Encl. CAS directives

_________________________________________________________________________________________________________________

Coach A, Country B / Football Federation of Country C

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