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 27 March 2020

Decision of the Single Judge

of the Players’ Status Committee

passed in Zurich, Switzerland, on 27 March 2020,

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 member association

Football Association B, from country B

as “Respondent”

regarding an employment related dispute between the parties

I. Facts of the case

Overview and contractual basis

1. On 16 September 2015, the coach from country A, Mr A (hereinafter: the coach A) and the Football Association B, from country B (hereinafter referred also as: the Football Association B or the Respondent) concluded an employment contract (hereinafter: the contract) and a bonus schedule.

2. Art. 1 of the contract sets out the main tasks of the coach, including but not limited to the training of the Football Association of country B’s Women’s National Team (hereinafter: Women’s National Team of country B) and “improve the performance of the team significantly as well as advance the team’s FIFA ranking” (art. 1 (1)), to qualify for the 2016 Olympics (art. 1 (2)).

3. According to art. 2 of the contract, “The term of the Contract shall be four years with 16 September 2015 to 15 September 2016 as the first stage of the cooperation. The remaining stages shall be defined in the Supplementary Contract.”

4. According to art. 4 of the contract, the coach is entitled to receive for the first year of the contract a total fixed remuneration of USD 350,000 “after tax”, payable in 8 monthly instalments of USD 29,000 “after tax” from September 2015 to July 2016 and 2 instalments of USD 30,000 “after tax” for August and September 2016. The parties agreed that each monthly instalment shall be paid on the 15th of each month at the exchange rate of the first day of the relevant month, and the coach has to provide a “tax certificate”.

5. In addition, art. 4 of the agreement stipulates that “if the contract shall be renewed for a second year, the annual service fee is to be determined.”

6. Art. 5 of the contract foresees that the coach should receive a monthly allowance of 500 for internet and mobile phone and the coach shall be accommodated by the Football Association B, from country B or shall receive a housing allowance of 20,000.

7. The bonus schedule indicates that the coach is entitled to 60% of the performance based incentives, including:

a. USD 300,000 for qualifying the Women’s National Team of country B to the 2016 Olympic Games, as well as an additional ranking bonus as follows:

- USD 100,000 for finishing in the top 8;

- USD 200,000 for finishing in the top 4;

b. USD 200,000 for finishing in the top 3 of the 2018 Football Confederation Women’s Cup;

c. USD 200,000 for finishing in the top 3 of the 2018 Games; and

d. USD 100,000 for finishing in the top 16 of the 2019 FIFA Women’s World Cup Finals, as well as additional ranking bonus as follows:

- USD 200,000 for finishing in the top 8;

- USD 300,000 for finishing in the top 4.

8. Art. 11 of the contract stipulates that “Both parties shall give support and respect to each other as they are working for mutual goals and benefits.”

9. Art. 17 of the contract foresees that the Football Association B, of country B “is entitled to modify [the coach]’s work position and tasks when necessary and is entitled to adjust [the coach]’s service fees based on the modified job description.”

10. Moreover, art. 18 indicates that “Modification of this Contract shall only be allowed if any of the following occurs during the Contract period:

(1) Both parties have reached an agreement, which will not damage national interests and social interests of Party A;

(2) The laws based on which this Contract was signed has been changed and the new law conflicts with the terms of this Contract;

(3) It is not possible to execute this Contract or the Contract remains no meaning to be executed due to force majeure and change of circumstances.

11. The contract contains several termination clauses allowing the Football Association B to unilaterally terminate the contract without bearing “any legal responsibility” if, inter alia:

a. the coach “commits serious violation of the terms of this Contract or of the rules and regulations related to coaches and members of Women’s National Team of country B” (cf. art. 19 lit. (1) of the contract);

b. the coach “fails to fulfill the tasks set out in Article 1 of the contract” (cf. art. 19 lit. (3) of the contract);

c. the Football Association B conducts an “evaluation” and deems that the coach is not of the requisite level, In this scenario the coach shall be given a 30-day written notice (cf. art. 20 (1) of the contract);

12. With art. 21 of the contract, the coach is also provided with the possibility to unilaterally terminate the contract should, inter alia, the Football Association B fails to comply with its financial obligations or fails to provide the correct work conditions to perform his tasks.

13. Art. 25 of the contract stipulates that ”any Party [that] violates the terms of this Contract, or unilaterally modify or terminate the Contract shall pay three month service fees to the other Party as penalty”, whilst art.27 foresees that “other liability for breach of Contract shall be dealt with in accordance with the rules and regulations of the Contract Law of People‘s Republic of country B.”

14. Finally, as to the resolution of disputes arising from the contract, art. 29 indicates that “both Parties mutually agree to resolve all disputes arising from this Contract through amicable negotiation. In case such amicable resolution is not possible, disputes shall be settled by the jurisdiction of the court ruling and the decision is final.”

15. On an undisclosed date, the parties signed a letter of intent which led to the conclusion of the supplementary agreement according to which the parties extended the contractual relationship for an additional 4 years, i.e. from 16 September 2016 to 15 September 2020.

16. The supplementary agreement provides two amendments to the terms of the contract:

a. The coach will receive a yearly remuneration of USD 450,000 “after tax”; and

b. Art. 1 of the contract was amended as follows: “[the coach] shall use his knowledge on football training, skill, experience and competitions to achieve the following goals year by year: (1) Fulfill the task of selection, training and competitions of Women’s National Team of country B and improve the performance of the team significantly as well as advance the team’s FIFA ranking. (2) Lead the team to qualify for 2016 Olympic Games Women’s Football Tournament (…)”.

17. The coach sent a correspondence to the Football Association B in which he stated that one of his assistant coaches, Mr X (hereinafter: the former assistant coach), had been told in a meeting that took place on 14 July 2016 in country A that his contract would not been extended beyond 15 September 2016.

18. On 12 August 2016, Mr X filed a complaint in front of the authorities of country A for Tax Fraud by the coach and his assistant, Mr Y. In his complaint, Mr X alleged that the coach brought cash back from country B to country A without declaring it to the authorities of country A, and that he received in or around EUR 150,000 in undeclared cash commissions for the organizing of training camps in country A.

19. On 8 September 2016, Mr X sent a letter to the Football Association B taking note of his dismissal and requesting the payment of the residual value of his contract up to 15 September 2019.

20. On 20 October 2017, the former assistant coach lodged a claim in front of FIFA against the Football Association B for breach of contract.

21. On 25 October 2017, after the end of a fixture played against country C, the coach explained that he had been discharged from his role of head coach of the Women’s National Team.

22. On 10 November 2017, the Football Association B appointed a new head coach of the Women’s National Team, Mr Z.

23. On 13 November 2017, the Football Association B “readjusted” the coach’s position to “Technical Consultant”.

24. On 13 February 2018, the coach sent a letter to the Football Association B asking for an update on the situation, and reminding the Football Association B that his visa was expiring in March 2018.

25. On 7 March 2018, the coach sent a letter to the Football Association B in which he stated that since 25 October 2017 he had been dismissed from his role and that the contract had “orally” been terminated by the Football Association B but that to date no termination letter had been received, nor no termination and/or reassignment had been discussed.

26. On 9 March 2018, the Football Association B sent a notice of termination to the coach, stipulating that the coach did not comply with art. 1 lit. (1) of the contract.

27. In addition, the Football Association B referred to the fact that upon extension of the contract, the coach allegedly advised the Football Association B not to renew one of the coaching staff members, who subsequently lodged a claim in front of FIFA in November 2017. In this regard, the Football Association B stated that after being reassigned as a “technical advisor of the Women’s National Team of country B” in November 2017, the coach failed to provide his reasoning despite the Football Association’s request, and “refused to cooperate”.

28. The Football Association B concluded that the coach breached art. 1 and 11 of the contract, which constituted a violation of art. 19 lit (1) of the contract and subsequently terminated the contract on that basis.

Requests from the Claimant

29. On 26 April 2018, the coach lodged a claim for breach of contract without just cause and requested:

A. The award of compensation of an amount of USD 1,106,250 net “after tax”, corresponding to the residual value of the contract (the coach indicated the following breakdown: USD 337,500 for the remainder of the year 2018 plus USD 450,000 for the year 2019 and USD 318,750 for the year 2020);

B. USD 420,000 net “after tax” corresponding to the incentives for performances that the Women’s National Team of country B would have “reasonably” been expected to achieve based on its “usual performances” in the 2018 Football Confederation Women’s Cup (final – USD 150,000), 2018 [….] Games (final – USD 150,000) and the 2019 FIFA Women’s World Cup Finals (1/4 finals, i.e. top 8 – USD 120,000);

C. USD 100,000 as moral damages;

D. A public apology from the Football Association B;

E. Procedural costs to be imposed in full on the Football Association B.

Requests from the Respondent

30. The Football Association B is of the opinion that FIFA has no jurisdiction to hear the present matter.

31. Alternatively, the Football Association B rejected the claim of the coach in full.

Positions of the parties

32. In his claim, the coach declared that he was informed orally that he was discharged of his coaching duties following a draw against country C on 25 October 2017.

33. The coach explained that he requested clarification from the Football Association B on several occasions, to no avail. He however confirmed that he continued to receive his monthly remuneration.

34. The coach pointed out that it was only after his letter dated 9 March 2018 that the Football Association B reacted formally and terminated his contract.

35. In this respect, the coach noted that the Football Association B indicated that he had been reassigned as technical advisor since November 2017, but stated that he had never been made aware of such reassignment.

36. As to the reasons for the termination of the contract, the coach noted that the first reason invoked by the Football Association B was the non-achievement of the targets set out in art. 1 of the contract.

37. In this respect, the coach underlined that he had qualified the Women’s National Team of country B to the 2016 Olympics, and that under his stewardship the Women’s National Team of country B progressed from the 15th position to the 13th position in the FIFA rankings, and therefore fulfilled his contractual objectives.

38. Then, the coach underlined that the Football Association B had also invoked a refusal to cooperate in relation to a contractual dispute taking place between the Football Association B and Mr X, a former assistant of the coach for the Women’s National Team of country B, constituting a breach of art. 11 of the contract.

39. In this regard, the coach confirmed that he had refused to provide statement to be added to the Football Association’s answer to Mr X’s claim, but he was of the opinion that:

a. He never received any warning that such refusal would put him in breach of his contractual obligations;

b. He only suggested to the Football Association B that Mr X’s services were no longer needed but insisted that it was the sole responsibility of the Football Association B to determine the composition of the Women’s National Team of country B coaching staff;

c. He was discharged prior to Mr X’s claim, therefore this argument, i.e. refusal to support the Football Association B in defending itself against Mr X, cannot be held against him. The coach underlined that this was an isolated fact that he was not party to, and that this dispute had no link whatsoever with his contractual duties.

40. The coach emphasized that the two reasons invoked for his dismissal were groundless, and that the fact that the Football Association B continued to pay his salary from his sidelining on 25 October 2017 to his dismissal in March 2018 and that he never received any warning or that the Football Association B never expressed its dissatisfaction as to his results and/or management are proof that he had never breached the terms of his contract.

41. In view of all the above, the coach declared that the Football Association B terminated the contract without just cause.

42. In reply, the Football Association B first referred to art. 29 of the contract and emphasised that the “People's Court in country B” is competent to hear the matter. The Football Association B stated that this court met the requirements set out in art. 22 of the FIFA RSTP, and that by agreeing to this clause the coach agreed to the country B court’s jurisdiction of relevance.

43. Then, should FIFA deems itself competent, the Football Association B pointed out that the contract allowed to reassign the coach’s duties.

44. In addition, the coach refused to cooperate with the Football Association B in its dispute against the former assistant coach, which potentially put the Football Association B at a loss. The Football Association B argued that the coach’s conduct was in breach of the FIFA code of ethics by not showing loyalty and was therefore in breach of art. 19 of the contract which entitled the Football Association B to terminate the contract. The Football Association B emphasized that the termination had been done accordingly.

45. The Football Association B also stated that the coach did not achieve the expected results which justified his requalification as technical advisor.

46. In his replica, to the admissibility of his claim in front of FIFA, the coach stated that with reference to art. 22 of the FIFA RSTP and the FIFA NDRC regulations, the parties may chose a specific jurisdiction to hear their contractual dispute, but such choice of jurisdiction must be specified within the contract. In this respect, the coach pointed out that the clause was not specific and open to interpretation.

47. Therefore, the coach deemed that FIFA was competent to hear the matter.

48. As to the position of the Football Association B, the coach first underlined that the argumentation of the Football Association B was in fact a montage in order to dismiss the coach after he refused to provide a statement to the Football Association B in relation to its dispute with Mr X.

49. The coach indicated that the contents of art. 17 of the contract were of potestative nature: the Football Association B could, without the coach’s knowledge or agreement change his job, his duties and remuneration at will, clause upon which the Football Association B apparently reassigned the coach in October 2017.

50. In this regard, the coach highlighted that the Football Association B relied on an invalid clause to change his duties, and as such deprived the coach of his right to exercise his coaching duties. What is more, the coach referred to art. 18 of the contract in which the parties agreed that a modification of the contents of the contract could only be done via the parties’ mutual agreement.

51. In view of the above, the coach concluded that as the Football Association B never informed him of his reassignment and that such changes of the contractual terms were never discussed, he argued that the Football Association B terminated the contract without just cause on 25 October 2017.

52. As to the alleged lack of results that led to his reassignment and dismissal, the coach reiterated his argumentation as to the sporting results achieved by the Women’s National Team of country B under his stewardship.

53. The coach then reiterated all his other arguments set out in his statement of claim.

54. In its duplica, Football Association B alleged that during the course of summer 2016, the coach took advantage of the Football Association B by overcharging training camps’ hotel bills between 2016 and 2017 of total amount of EUR 145,000.

55. In this respect, the Football Association B alleged that according to Mr X, the coach had a “pattern” of using the same hotels in country A in their previous coaching experiences, and due to their personal connections with said hotels they set up a scheme in order to get “commissions” from these hotels.

56. The Football Association B provided statements obtained via email from Mr. D, a former collaborator of the coach, in which he stated that the coach and his assistants had taken commissions from hotels when organizing training camps, along with copies of email exchanges between the coach and his former coaching staff in this respect.

57. The coach informed the FIFA administration that he remained had remained unemployed since 9 March 2018.

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

1. First of all, the Single Judge of the Players’ Status Committee (hereinafter: the Single Judge) analysed whether he was competent to deal with the case at hand. In this respect, he took note that the present matter was submitted to FIFA on 26 April 2018 and decided on 27 March 2020. Consequently, the 2019 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 par. 2 of the Procedural Rules and confirmed that in accordance with art. 23 par. 4 in combination with art. 22 lit. c) of the Regulations on the Status and Transfer of Players (hereinafter referred also as: the Regulations – March 2020 edition), the Single Judge of the Players’ Status Committee would, in principle, be competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between Coach A and the Football Association B.

3. However, the Single Judge acknowledged that the Football Association B contested the competence of FIFA’s deciding bodies on the basis of art. 29 of the contract, according to which the “People's Court in country B” shall be competent to hear the matter as it meets the requirements set out in art. 22 of the Regulations.

4. On the other hand, the Single Judge noted that the coach insisted on the competence of the Single Judge of the Players’ Status Committee to adjudicate on the claim lodged by him against the Football Association B.

5. Taking into account all the above, the Single Judge emphasised that in accordance with art. 22 lit c) of the Regulations, and without prejudice to the parties’ right to seek redress before a civil court, he is, in principle, competent to deal with employment-related disputes of an international dimension employment-related disputes between a club or an association and a coach of an international dimension, unless an independent arbitration tribunal guaranteeing fair proceedings exists at national level.

6. In relation to the above, the Single Judge emphasised that it was vital to outline that the first condition that needs to be met in order to establish that another organ than the Players’ Status Committee is competent to settle an employment-related dispute between a club and a coach of an international dimension, is that the jurisdiction of the relevant national arbitration tribunal or national court derives from a clear reference in the employment contract.

7. Therefore, in analysing whether it was competent to hear the present matter, the Single Judge considered that it should, first and foremost, analyse whether the employment contract at the basis of the present dispute contained a clear, specific and exclusive arbitration clause.

8. In fact, the Single Judge pointed out that should this requirement not be fulfilled, the analysis of the “People's Court in country B” would be obsolete.

9. In this respect, the Single Judge recalled that according to art. 29 of the contract “both Parties mutually agree to resolve all disputes arising from this Contract through amicable negotiation. In case such amicable resolution is not possible, disputes shall be settled by the jurisdiction of the court ruling and the decision is final.”

10. Having thoroughly analysed the content of art. 29 of the contract, the Single Judge remarked that there were no specific and unambiguous reference to one court in country B within the judicial system of the country or to an independent arbitration tribunal guaranteeing fair proceedings exists at national level. Recalling his extensive jurisprudence in this respect, the Single Judge came to the conclusion that art. 29 of the contract did not make a clear and unambiguous reference to one jurisdiction of choice agreed by the parties.

11. In view of all the above, the Single Judge established that the Football Association B’s objection to the competence of FIFA to deal with the present matter has to be rejected and that the Single Judge is competent, on the basis of art. 22 lit. c) of the Regulations, to consider the present matter as to the substance.

12. Subsequently, the Single Judge analysed which set of regulations should be applicable as to the substance of the matter. In this respect, the Single Judge confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (March 2020 edition), and considering that the claim was lodged on 26 April 2018, the January 2018 edition of the Regulations is applicable to the matter at hand as to the substance.

13. The competence of the Single Judge and the applicable regulations having been established, the Single Judge entered into the substance of the matter. In this respect, the Single Judge started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. 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.

14. 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.

15. First of all, the Single Judge acknowledged that, on 16 September 2015, the coach and the Football Association B had concluded an employment contract valid as from the date of signature until 15 September 2016 and a bonus schedule, both which were at an unknown date extended up until 15 September 2019, pursuant to which the Football Association B undertook to remunerate the coach, as established in points I.4 to I.7 and I.16 above.

16. Then, the Single Judge observed that the coach sent a correspondence to the Football Association B in which he stated that the former assistant coach had been told in a meeting that took place on 14 July 2016 in country A that his contract would not been extended beyond 15 September 2016.

17. In this respect, the Single Judge acknowledged that on 12 August 2016, the former assistant coach filed a complaint in front of the country A authorities for Tax Fraud by the coach and his assistant, Mr X allegedly linked to the organization of training camps in country A.

18. The Single Judge also took note that on 20 October 2017, the former assistant coach lodged a claim in front of FIFA against the Football Association B for breach of contract.

19. Then, the Single Judge observed on 25 October 2017, after the end of a fixture played against country C, the coach explained that he had been discharged from his role of head coach of the Women’s National Team of country B, and that 10 November 2017, the Football Association appointed a new head coach of the Women’s National Team of country B, Mr Z.

20. What is more, the Single Judge noted that on 13 November 2017, the Football Association B “readjusted” the coach’s position to “Technical Consultant”.

21. In addition, the Single Judge observed that on 13 February 2018, the coach sent a letter to the Football Association B asking for an update on the situation, and reminding the Football Association B that his visa was expiring in March 2018.

22. The Single Judge acknowledged the correspondence sent by the coach to the Football Association B on 7 March 2018, in which he stated that since 25 October 2017 he had been dismissed from his role and that the contract had “orally” been terminated by the Football Association B but that to date no termination letter had been received, nor no termination and/or reassignment had been discussed.

23. Furthermore, the Single Judge noted that on 9 March 2018, the Football Association B sent a notice of termination to the coach, stipulating that the coach did not comply with art. 1 lit. (1) of the contract.

24. The Single Judge also remarked that the Football Association B referred to the fact that upon extension of the contract, the coach allegedly advised the Football Association B not to renew one of the coaching staff members, who subsequently lodged a claim in front of FIFA in November 2017. In this regard, the Football Association B stated that after being reassigned as a “technical advisor of the Women’s National Team of country B” in November 2017, the coach failed to provide his reasoning despite the Football Association B’s request, and “refused to cooperate”. The Single Judge observed that the Football Association B concluded that the coach had breached art. 1 and 11 of the contract, which constituted a violation of art. 19 lit (1) of the contract and subsequently terminated the contract ion that basis.

25. However, the Single Judge observed that the coach claimed that the Football Association B terminated the contract without just cause.

26. In fact, the Single Judge noted that the coach denied the reasons invoked by the Football Association B in the aforementioned termination notice:

- As to the lack of results, the coach explained that it had fulfilled all his contractually agreed targets;

- And as to the alleged refusal to cooperate, he acknowledged that he refused to provide a statement for the Football Association B in its dispute against the former assistant coach, but he declared that he was never informed that this would be a breach of the contract nor was never formally informed that he had breach such terms up until the termination letter.

27. The Single Judge took note of the coach’s arguments that the Football Association B constructed his dismissal after the former assistant coach lodged a claim against the Football Association B and after he refused to provide a statement in this respect. In particular, the Single Judge observed that the coach interpreted his oral discharge of the Women’s National Team of country B on 25 October 2017 as the date of termination of the contract by the Football Association B without just cause, and requested, inter alia, financial compensation in this respect for a total amount of USD 1,626,250.

28. Furthermore, the Single Judge acknowledged the argumentation of the Football Association B, and took note that the Football Association B mainly held that the coach’s refusal of providing a statement in relation to its contractual dispute with the former assistant coach constituted a severe breach of art. 11 of the contract, and that the non-satisfactory results of the Women’s National Team of country B constituted a breach of art. 1 of the contract, in light of which it argued to have rightfully terminated on the basis of art. 19 lit (1).

29. In view of the foregoing, the Single Judge considered that the underlying issue in this dispute, considering the parties’ position, was to determine as to whether the termination of the contract by the Football Association B was made with or without just cause, and subsequently, to determine the consequences of such early termination by the Football Association B.

30. In this context, the Single Judge first observed that the Football Association B discharged the coach of his duties in relation to the Women’s National Team of country B on 25 October 2017, without any formal notification. The Single Judge observed that the coach was also never formally informed of his reassignment nor of any change made to his contractual terms, and in particular to his employment duties.

31. In parallel, the Single Judge duly noted that on 10 November 2017, the Football Association B appointed a new coach for the Women’s National Team of country B. In the absence of formal notice of reassignment of the coach, the Single Judge considered that the Football Association’s official appointment of new coach for the Women’s National Team of country B de facto officially ended the coach’s role vis-à-vis the Football Association B.

32. That being said, the Single Judge however emphasised that prior to the coach’s dismissal, it had at no point in time expressed its dissatisfaction at the Women’s National Team’s performances under the stewardship of the coach, nor expressed its dissatisfaction at the coach’s work. The Single Judge highlighted that the coach was set aside orally, and a new coach was appointed shortly after, still without any sort of formal communication to the coach.

33. However, the Single Judge noted that the parties continued to communicate in relation to the former assistant coach’s dispute, and the Football Association B continued to timely pay the coach’s remuneration in full.

34. Therefore, the Single Judge noted that the contractual relationship was still continuing despite the absence of any formal notification of reassignment of the coach.

35. Then, the Single Judge remarked that the coach contacted the Football Association B on 13 February 2018 to request an update on his professional situation, that is to say four months after his discharge, and that in response the F dismissed him for refusal to cooperate and bad results.

36. In view of the above sequence of events and the conduct of the parties between 25 October 2017 and 9 March 2018, the Single Judge determined that the contract was terminated as of 9 March 2018, date on which the Football Association B sent to the coach the termination letter, and not on 25 October 2017 as considered by the coach.

37. Starting with the analysis of the termination, the Single Judge wished to first and foremost recall the extensive jurisprudence of the Players’ Status Committee in relation to dismissal based on sporting results. The jurisprudence in this respect clearly sets out that dissatisfactory sporting results are not to be considered just cause to terminate a contract, unless a pre-existing result-based clause is contractually foreseen.

38. In the present matter, the Single Judge noted that according to art. 1 of the contract, the coach shall “improve the performance of the team significantly as well as advance the team’s FIFA ranking” (art. 1 (1)), and qualify for the 2016 Olympics (art. 1 (2)). The Single Judge further noted that art. 1 was later amended as follows: “[the coach] shall use his knowledge on football training, skill, experience and competitions to achieve the following goals year by year: (1) Fulfill the task of selection, training and competitions of Women’s National Team of country B and improve the performance of the team significantly as well as advance the team’s FIFA ranking. (2) Lead the team to qualify for 2016 Olympic Games Women’s Football Tournament (…)”.

39. Based on the evidence presented by the parties, the Single Judge underlined that it is not possible to determine that the coach did not fulfil the tasks and results foreseen in art. 1 of the contract, as, inter alia, the Women’s National Team progressed in the FIFA rankings and qualified for the 2016 Olympics football tournament.

40. Additionally, the Single Judge noted that the Football Association B never formally expressed its dissatisfaction, if any, to the coach. In that sense, the Single Judge emphasised that the coach could not legitimately expect to be dismissed on the basis of his and the Women’s National Team’s performances.

41. Subsequently, the Single Judge paid particular attention to the Football Association B’s allegations of a breach of art. 11 of the contract by the coach, namely the refusal to cooperate, or rather the refusal to provide a statement in the present matter.

42. The Single Judge acknowledged that art. 11 stipulated that “Both parties shall give support and respect to each other as they are working for mutual goals and benefits.”

43. Having said that, the Single Judge referred to the well-established jurisprudence of the Players’ Status Committee and emphasised that, as a general rule, only a breach or misconduct which is of a certain severity justifies the termination of a contract without notice. In other words, only when there are objective criteria which do not reasonably permit to expect a continuation of the employment relationship between the parties, a contract may be terminated prematurely. Hence, if there are more lenient measures which can be taken in order for an employer to ensure the employee’s fulfilment of his contractual duties, such measures must be taken before terminating an employment contract. A premature termination of an employment contract can only ever be an ultima ratio measure.

44. In this respect, the Single Judge emphasised that the coach was at no point formally informed and/or warned that failure to provide a statement in relation to the dispute opposing the Football Association B to the former assistant consisted in a violation of art. 11 and that such breach could lead to his dismissal. What is more, the Single Judge observed that no disciplinary hearing in this respect was held by the Football Association B to deal with the alleged breach and/or that the coach was informed of disciplinary proceedings against him.

45. As such, the Single Judge underlined that the coach had been never given an opportunity to answer the allegations of breaches of art. 1 and 11 of the contract, thus depriving him of his right to be heard.

46. In view of all the above, the Single Judge concluded that, in accordance with the constant jurisprudence of the Players’ Status Committee, it cannot be determined that the conduct of the coach did reach a sufficient degree of severity, if any, that could justify a termination of contract without notice.

47. In view of all the aforementioned, the Single Judge was of the firm opinion that the Football Association B did not have just cause to prematurely terminate the employment contract with the coach.

48. After having established the foregoing, the Single Judge went on analysing the consequences of the termination of contract without just cause committed by the Football Association B.

49. Nevertheless, before entering the analysis of the consequences of the unjust termination of contract on the part of the Football Association B, the Single Judge deemed it appropriate to first assess whether any outstanding remuneration was still due by the Football Association B to the coach. In this regard, the Single Judge underlined that the coach had not requested any outstanding remuneration.

50. Having established the aforementioned and turning his attention to the compensation payable to the coach by the Football Association B following the termination without just cause of contract by the latter, the Single Judge held that it first of all had to clarify whether the pertinent employment contract contained any clause, by means of which the parties had beforehand agreed upon a compensation payable by the contractual parties in the event of breach of contract.

51. In this respect, the Single Judge observed that art. 25 of the contract stipulates that “any Party [that] violates the terms of this Contract, or unilaterally modify or terminate the Contract shall pay three month service fees to the other Party as penalty”. However, the Single Judge duly pointed out that this clause is not a per se compensation clause as it refers to other liabilities. As a consequence, the Single Judge decided not to take art. 25 into account

52. As a result, the Single Judge established that the amount of compensation due to the coach had to be assessed in accordance with other criteria, in line with the jurisprudence of the Players’ Status Committee.

53. Bearing in mind the foregoing, the Single Judge proceeded with the calculation of the fixed remuneration payable to the coach under the terms of the employment contract as from the date of termination without just cause by the Football Association B until its natural expiration, bearing in mind the amount claimed by the coach with respect to fixed remuneration, and determined that the amount of USD 1,106,250 serves as the basis for the final amount of compensation for breach of contract awarded in the case at hand.

54. Then, the Single Judge observed that the coach had requested the award of performance-based incentives in relation to the bonus schedule signed by the parties on 15 September 2015.

55. Recalling the jurisprudence of the Players’ Status Committee in this respect, the Single Judge emphasised that incentives foreseen in contracts for targets that have not been achieved and/or were yet to be achieved and/or achieved after the termination of the contract without the direct involvement of the coach during the course of the relevant competition cannot be granted as compensation. Therefore, the Single Judge rejected the coach’s request for bonuses.

56. Equally, the Single Judge verified as to whether the coach had signed a new employment contract after having been dismissed by the Football Association B on 9 March 2018 by means of which he would have been enabled to reduce his loss of income. According to his constant practice, such remuneration under a new employment contract would be taken into account in the calculation of the amount of compensation for breach of contract in connection with the coach’s general obligation to mitigate his damages.

57. The Single Judge noted in this respect that the coach had informed the FIFA administration that he had remained unemployed since his dismissal on 9 March 2018.

58. In view of the above, the Single Judge concluded that the amount of USD 1,106,250 is to be paid by the Football Association B to the coach as compensation for breach of contract.

59. In addition, the Single Judge established that any other request of the coach had to be rejected.

60. 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.

61. In this respect, the Single Judge reiterated that the claim of the coach is partially accepted and that the Football Association B is the party at fault. However, the Single Judge observed that a certain number of requests of the coach had been rejected and the amount awarded was considerably lower than the amount requested. Therefore, the Single Judge decided that the Football Association B and the coach have to bear the costs of the current proceedings in front of FIFA.

62. 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 higher than CHF 200,001, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000.

63. In conclusion and in view of the numerous submissions that had to be analysed in the present matter, the Single Judge determined the costs of the current proceedings to the amount of CHF 22,000.

64. Consequently, the Single Judge determined that the Football Association B has to pay the amount of CHF 15,000 and the coach the amount of CHF 7,000 in order to cover the costs of the present proceedings.

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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 is partially accepted.

3. The Respondent, the Football Association B, has to pay to the Claimant, within 30 days as from the date of notification of the present decision, compensation for breach of contract in the amount of USD 1,106,250.

4. In the event that the aforementioned sum plus interest 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. Any further claim lodged by the Claimant, is rejected.

6. The final costs of the proceedings in the amount of CHF 22,000 are to be paid as follows:

6.1. The amount of CHF 15,000 has to be paid by the Respondent;

6.2. The amount of CHF 7,000 has to be paid by the Claimant. In view of the fact that the Claimant has already paid CHF 5,000 in advance of costs, the Claimant shall only pay the amount of CHF 2,000;

6.3. The aforementioned amounts have to be paid to FIFA to the following bank with reference to case nr. XXXX:

UBS Zurich

Account number 366.677.01U (FIFA Players’ Status)

Clearing number 230

IBAN: CH27 0023 0230 3666 7701U

SWIFT: UBSWCHZH80A

7. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittances under point 3. above is to be made and to notify the Players’ Status Committee of every payment received.

*****

Note related to the publication:

The FIFA administration may publish decisions issued by the Players’ Status Committee or the Dispute Resolution Chamber. 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 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. 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 (CAS)

Avenue de Beaumont 2, CH-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