F.I.F.A. – Players’ Status Committee / Commissione per lo Status dei Calciatori – coach disputes / controversie allenatori (2019-2020) – fifa.com – atto non ufficiale – Decision 25 September 2019

Decision of the Single Judge

of the Players’ Status Committee

passed in Zurich, Switzerland, on 25 September 2019,

by

Roy Vermeer (the Netherlands)

Single Judge of the Players’ Status Committee,

on the claim presented by the coach

José Carlos Freitas Graça, Portugal

represented by Mr Daniel Rey

as “Claimant”

against the club

CD Chingale de Tete, Mozambique

as “Respondent”

regarding an employment related dispute between the parties

I. Facts of the case

1. The Portuguese coach, José Carlos Freitas Graça (hereinafter: the coach or the Claimant) and the Mozambican club, CD Chingale de Tete (hereinafter: the club or the Respondent) allegedly concluded an employment contract (hereinafter: the contract) on 28 April 2017, valid as from May 2017 until October 2017.

2. According to the contract, the coach was entitled to a monthly salary of USD 3,500.

3. On 18 October 2017, allegedly the club signed a “Debt declaration” (hereinafter: the debt recognition) according to which the club recognized its debt towards the coach in the amount of USD 17,500.

4. On 28 January 2019, the coach lodged a claim in front of FIFA against the club explaining that the latter had still not paid the agreed sum as per the debt recognition and requested therefore the following :

i. USD 17,500 as the salaries from June to October 2017,

ii. USD 1,250 as late payment interest at the rate of 5% p.a. as from “September 2017 until this day“.

5. In his claim, the coach explained that despite having not been paid almost all his salaries, he duly executed and respected the contract by leading the team during all the training sessions and the matches of the relevant sporting season.

6. Furthermore, the coach also underlined that he came back to Mozambique in February 2018 to negotiate a payment settlement with the club, however to no avail.

7. In its reply to the claim, the club alleged that the contract, as well as the debt recognition, had both been signed on the club’s side by an incompetent person according to its statutes, i.e. Mr. Manuel Lopes “the supposed Advisor to the Chairman”.

8. As a consequence, the club deemed the claim of the coach to be “(…) unfounded and or with the purpose of harming the [club] and the benefit thereof”.

9. Moreover, the club explained that the coach’s name did not appear in its “salary slip” which allegedly “(…) demonstrates that there is no agreement with the club to declare the work contract”.

10. Finally, the club underlined that according to Mozambican regulations, the coach should have had an employment visa/work permit which he allegedly failed to provide.

11. In his replica, the coach rejected the club’s argument as to the validity of the contract by underlining that said contract had been most certainly validated by the Federação Moçambicana de Futebol.

12. Furthermore, the coach provided various press articles allegedly justifying his presence in Mozambique, as the coach of the club, exercising his duties as per the contract concluded between the parties for the relevant period.

13. Finally, the coach also provided a copy of his passport allegedly referring to a visa for “multiple” reasons. The coach also insisted on the fact that any formality related to the issuance of a work permit for its employees relies on the employer.

14. As a consequence, the coach reiterated his initial request as referred to in his statement of claim.

15. Despite having been invited to do so, the club did not provide its final comments pertaining to the present affair.

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 (edition 2018). Consequently, and since the present matter was submitted to FIFA on 28 January 2019, 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 June 2019 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 is the competent body to decide on an employment-related dispute involving a Portuguese coach and a Mozambican club.

4. 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 June 2018 and June 2019 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 28 January 2019. In view of the foregoing, the Single Judge concluded that the June 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 (cf. art. 26 par. 1 and 2 of the Regulations).

5. 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.

6. Having said this, 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.

7. In this respect and first of all, the Single Judge acknowledged that the Claimant and the Respondent had allegedly concluded an employment contract valid as of May 2017 until October 2017. Furthermore, the Single Judge took note that the parties allegedly signed a “Debt declaration”, by means of which the Respondent recognized its debt toward the Claimant in the amount of USD 17,500.

8. In this regard, the Single Judge noted the Respondent’s argument that the contract and the debt recognition have been signed by an unauthorised person and have therefore no legal value.

9. Nonetheless, evaluating the evidence provided by the Respondent, the Single Judge deemed it appropriate to remind the latter of the wording of art. 9 par. 1 lit. e of the Procedural Rules, which established that documents of relevance to the dispute shall be translated into one of the official FIFA languages. The Single Judge observed that the Respondent did not provide any translation of its submitted evidence and, moreover, referred to evidence that had not been provided.

10. Subsequently, the Single Judge observed that, for its part, the Claimant provided all the relevant documentation, signed with a club’s stamp. In light of all the above, the Single Judge concluded that the employment contract as well as the debt acknowledgement have been concluded between the club and the coach and that the latter in good faith could believe that the people signing those documents were in fact authorised by the club to do so.

11. Furthermore, the Single Judge took note of the Respondent’s argumentation that the Claimant failed to provide an employment visa/working permit. In this regard, the Single Judge considered relevant to recall the jurisprudence of the Players’ Status Committee, in accordance with which the validity of an employment contract cannot be made conditional upon the execution of (administrative) formalities, such as, but not limited to, employment visa or working permit, which are of the sole responsibility of a club and on which a coach has no influence.

12. Consequently, the Single Judge concluded that the total amount of USD 17,500 was payable by the Respondent to the Claimant, corresponding to the amount agreed in the “Debt declaration” termination.

13. Furthermore, the Single Judge decided that the Respondent has to pay 5% interest p.a. on the amount of USD 17,500 as of 19 October 2017 until the date of the claim, i.e. until 28 January 2019, in conformity with the practice of the Players’ Status Committee and with the Claimant’s limited request for interest.

14. The Single Judge concluded his deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected.

15. 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.

16. In this respect, the Single Judge highlighted that the claim was almost entirely accepted and that the Respondent was the party at fault. Therefore, the Single Judge decided that the Respondent has to bear the costs of the current proceedings in front of FIFA.

17. 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.

18. In conclusion and considering the specific circumstances of the case, the Single Judge determined the costs of the current proceedings to the amount of CHF 3,000.

19. Consequently, the Respondent has to pay the amount of CHF 3,000 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, José Carlos Freitas Graça, is partially accepted.

2. The Respondent, CD Chingale de Tete, has to pay to the Claimant within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of USD 17,500, plus 5% interest p.a. as from 19 October 2017 until 28 January 2019.

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

4. In the event that the amount, plus interests, due to the Claimant in accordance with the above-mentioned number 2. is not paid by the Respondent within the stated time limits, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision.

5. The final costs of the proceedings in the amount of CHF 4,000 are to be paid by the Respondent within 30 days as from the date of notification of the present decision as follows:

5.1 The amount of CHF 3,000 to FIFA to the following bank account with reference to case no. 19-00256/sil:

UBS Zurich

Account number 366.677.01U (FIFA Players’ Status)

Clearing number 230

IBAN: CH27 0023 0230 3666 7701U

SWIFT: UBSWCHZH80A

5.2 The amount of CHF 1,000 has to be paid directly to the Claimant.

6. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittances under points 2. and 5.2. above are to be made and to notify the Players’ Status Committee of every payment received.

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Note related to the publication:

The FIFA administration may publish decisions issued by the Players’ Status Committee or the DRC. Where such decisions contain confidential information, FIFA may decide, at the request of a party within five days of the notification of the motivated decision, to publish an anonymised or a redacted version (cf. article 20 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber).

Note related to the appeal procedure:

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. 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.

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