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 15 April 2020

Decision of the Single Judge

of the Players’ Status Committee

passed on 15 April 2020,

by

Johan Van Gaalen (South Africa)

Single Judge of the Players’ Status Committee,

on the claim presented by the coach

Ridha Jeddhi, France,

represented by Mr Mohamed Kamel Laroussi

as “Claimant”

against the club

Al Batin SC, Saudi Arabia,

Represented by Mr Nasr El-din Azzam

as “Respondent”

regarding an employment related dispute between the parties

I. Facts of the case

1. On 4 July 2019, the French coach, Mr Ridha Jeddhi (hereinafter: the coach or the Claimant) and the Saudi Arabian club, Al Batin SC (hereinafter: the club or the Respondent) concluded an employment contract (hereinafter: the contract), valid for one sporting season “as from the date of arrival of the coach in the city of El Baten” (free translation from French).

2. In accordance with the information available in the Transfer Matching System (TMS), the season 2019/2020 in Saudi Arabia started on 24 August 2019 and was set to finish on 30 May 2020.

3. Article 4 of the contract provided, inter alia, the following financial conditions :

“1- the coach is entitled to a monthly salary of USD 10,000.

(…)

5- the coach is entitled to an advance salary of USD 20,000.

(…)

6- the coach is entitled to a winning bonus of 200% of what the players receive in case of a win.”

(Free translation from French)

4. In addition, article 7 par. 2 of the contract stipulated the following :

“The club can terminate the contract at any time at the will of its Board. It will have to pay 2 monthly salary to the coach as penalty”.

(Free translation from French)

5. By means of a letter dated 26 September 2019, sent on 25 September 2019, the coach was informed by the Respondent of the termination of the contract in the following terms :

“We bring to your knowledge that the Board of [the Respondent] has decided to terminate your duties as the coach of our first football team in accordance with the contract dated 4 July 2019. All procedures will be finalized in a timeframe of 10 days”.

(Free translation from French)

6. On 7 January 2020, the Claimant lodged a claim against the Respondent in front of FIFA for outstanding remuneration and compensation for breach of contract, requesting the total amount of USD 101,066, corresponding to:

- USD 21,066 as outstanding remuneration corresponding to the salary of August and September 2019 (USD 20,000) and a bonus for a match won (USD 1,066);

- USD 80,000 as compensation for breach of contract as residual value of the contract;

- Disciplinary sanction in application of art. 64 of the FIFA Disciplinary Code.

7. The Claimant sustained that the Respondent unilaterally terminated the contract on 25 September 2019 arguing that it was a decision of its Board.

8. In addition, according to the Claimant, he only received USD 10,000 from the Respondent over the entire duration of the contract.

9. Furthermore, the Claimant held that, in an undated letter, the Respondent recognized in writing a debt of Saudi Riyal (SAR) 150,000 (approx. USD 40,000), corresponding to the penalty clause of 2 monthly salaries as well as salaries and bonuses in accordance with the contract.

10. For its part and in reply to the claim, the Respondent emphasised that “Since the conclusion of the Contract, [it] respected all its obligations towards [the Claimant]”.

11. Moreover, the Respondent indicated that on 24 August 2019 it paid SAR 112,000, corresponding to USD 30,000, to the Claimant as the sign-on fee and the “first monthly salary”. In this respect, the Respondent provided two cheques in support of its allegations.

12. In continuation, the Respondent held that it decided to terminate the contract for “technical reasons”, and as per art. 7 par. 2 of the contract, it consequently sent a correspondence to the Claimant in which it was agreed that two monthly salaries, i.e. USD 20,000, will be paid in this regard.

13. In addition, the Respondent stated that the document had been produced upon request of the Claimant, and that the Claimant tacitly agreed to the termination. As such, the Respondent declared that the acknowledgment of debt was indeed a mutual termination, and therefore that it cannot be held that there was a termination without just cause and no compensation should be awarded to the Claimant.

14. However, the Respondent confirmed that it had a debt of USD 34,329 towards the Claimant consisting of:

- USD 10,000 as the unpaid salary for the period 13 August – 13 September 2019;

- USD 4,329 as the unpaid salary for the period 13 September – 25 September 2019;

- USD 20,000 as the two monthly salaries as per the termination clause.

15. In respect to the above, the Respondent rejected the claim in full and requested that no compensation shall be awarded. Alternatively, the Respondent requested that any compensation granted shall not be higher than USD 40,000.

16. Finally, in accordance with the information currently in FIFA’s possession, the coach appeared to have remained unemployed.

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 7 January 2020. Consequently, the Single Judge concluded that the 2019 edition of 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 March 2020 edition of the Regulations on the Status and Transfer of Players, he is competent to deal with the matter at stake which concerns an employment-related dispute of an international dimension between a French coach and a Saudi Arabian club.

3. Furthermore, the Single Judge analysed which edition of the Regulations on the Status and Transfer of Players should be applicable to the matter. In this respect, he referred, on the one hand, to art. 26 par. 1 and 2 of the March 2020 edition 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 7 January 2020. In view of the foregoing, the Single Judge concluded that the January 2020 edition of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the case at hand (cf. art. 26 par. 1 and 2 of the Regulations).

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. However, the Single Judge emphasized 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, the Single Judge acknowledged that, on 4 July 2019, the Claimant and the Respondent had concluded an employment contract valid for one sporting season, i.e. until 30 May 2020, which provided for the Claimant to work as coach of the Respondent’s team, against a monthly remuneration of USD

10,000, an advance payment of USD 20,000 and a winning bonus of 200% of what the players receive in case of a win.

6. In addition, the Single Judge took note of the content of article 7 par. 2 of the contract which stated that the Respondent could terminate the contract at any time at the will of its Board and that it would have to pay two monthly salaries to the Claimant as “penalty”, i.e. compensation.

7. In continuation, the Single Judge remarked that, in his claim to FIFA, the Claimant had accused the Respondent of having terminated their contractual relationship without just cause on 25 September 2019 invoking its Board’s decision.

8. The Single Judge also noted that, as such, the Claimant deemed, inter alia, being entitled to claim from the Respondent the payment of outstanding remuneration in the amount of USD 21,066, corresponding to the salaries of August and September 2019 plus USD 1,066 as a bonus for a match won, and of compensation for breach of contract in the sum of USD 80,000 corresponding to the residual value of the contract.

9. Moreover, the Single Judge noticed that, for its part, the Respondent, had rejected the claim of the Claimant arguing that, inter alia, it had respected its obligations towards the Claimant and paid him SAR 112,000 on 24 August 2019, i.e. USD 30,000.

10. Furthermore, the Single Judge underlined that, in the Respondent’s opinion, it had correctly terminated the contract in accordance with art. 7 par. 2 of the contract for “technical reasons” and that by issuing the acknowledgment of debt, the parties had mutually terminated the contract. Consequently, the Single Judge took note of the Respondent’s recognition of debt amounting to USD 34,329, and recalled the Respondent’s position that no breach of contract had occurred and its rejection of compensation for breach of contract, or, in the alternative, limited to a maximum of USD 40,000.

11. With the above in mind and after having thoroughly analysed the submissions of the parties as well as the documentation at his disposal, the Single Judge deemed that the first question to be addressed in the present matter was whether the Respondent had terminated the contract with or without just cause on 25 September 2019.

12. In this regard, the Single Judge recalled that the Respondent considered having rightfully terminated the contract for “technical reasons” and justified said decision by referring to art. 7 par. 2 of the contract.

13. In this context, the Single Judge firstly focused its attention on the said art. 7 par. 2 of the contract and took note that said clause appeared to be unilateral and to the benefit of the Respondent only. What is more, the decision to terminate the contract at any time at the will of its Board is left fully to the discretion of the Respondent. In the light of such potestative character of the pertinent contractual clause, the Single Judge deemed that art. 7 par. 2 of the contract is not acceptable and cannot be considered as valid.

14. Therefore, the Single Judge concurred that the said art. 7 par. 2 of the contract does not constitute a legal basis to unilaterally terminate the contract. Consequently, the Single Judge rejected the Respondent’s argument in this respect.

15. In continuation, the Single Judge acknowledged that it had also to examine whether the reason put forward by the Respondent in its reply to the claim, i.e. “technical reasons”, could justify the termination of the contract in the present matter.

16. In this respect, the Single Judge referred to his well-established jurisprudence 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.

17. As such, the Single Judge also recalled that, still in accordance to its longstanding jurisprudence, sporting results / sporting performance cannot be retained as a valid reason to justify an early termination of an employment contract.

18. As a consequence and considering the above, the Single Judge held that, although the Respondent provided explanations and arguments, the reason put forward cannot be considered as a valid reason for unilaterally terminating the contract.

19. In view of all the aforementioned, the Single Judge was of the firm opinion that the Respondent did not have just cause to prematurely terminate the employment contract with the Claimant.

20. After having established the foregoing, the Single Judge went on analysing the consequences of the termination of contract without just cause committed by the Respondent.

21. Nevertheless, before entering the analysis of the consequences of the unjust termination of contract on the part of the Respondent, the Single Judge deemed it appropriate to first assess whether any outstanding remuneration was still due by the Respondent to the Claimant.

22. In this regard, the Single Judge underlined that the Claimant had requested from the Respondent the payment of USD 21,066 corresponding to the salary of August and September 2019, each amounting to USD 10,000, and USD 1,066 as a bonus for a match won, whilst the Respondent stated that USD 30,000 had been paid to the Claimant.

23. In respect to the above, the Single Judge firstly underlined that despite stating that it respected all its contractual obligations, the Respondent acknowledged that it had only paid USD 30,000 to the Claimant. As such, in view of the fact that the contract started on 4 July 2019, and in line with the Claimant’s claim, the Single Judge deemed that the Claimant only received USD 20,000 as the advance payment and USD 10,000 as the salary of July 2019.

24. Furthermore and as to the requested bonus for a match won amounting to USD 1,066, the Single Judge observed that the Claimant failed to provide any evidence in this respect. In addition, the Single Judge underlined the absence of any bonus schedule in this sense. Consequently, the Single Judge decided to reject said request of the Claimant in accordance with art. 12 par. 3 of the Procedural Rules, the Claimant having failed to fulfil the burden of proof in respect of this part of his claim.

25. As such, the Single Judge concluded that the salary of August 2019, i.e. USD 10,000, was outstanding at the moment of the termination and in accordance with the general legal principle of pacta sunt servanda, the Single Judge decided that the Respondent is liable to pay to the Claimant the amount of USD 10,000 as outstanding remuneration. The Single Judge further observed that the amount requested by the Claimant pertaining to the salary for the month of September 2019 should be part of the compensation due to him as the contract was terminated on 25 September 2019.

26. As a consequence, and having established the aforementioned, the Single Judge turned his attention to the compensation payable to the Claimant by the Respondent following the termination without just cause of contract by the latter.

27. In this respect, the Single Judge held that he 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.

28. In this sense, the Single Judge recalled the aforementioned conclusions as to art. 7 par. 2 (cf. point II./13 and II./14) and consequently underlined the absence of any compensation clause included in the contract. Consequently, the Single Judge held that no compensation clause being applicable to the case at hand, the compensation can be assessed on the basis of the residual value of the contract in line with the jurisprudence of the Players’ Status Committee.

29. Bearing in mind the foregoing, the Single Judge proceeded with the calculation of the monies payable to the coach under the terms of the employment contract as from the date of termination without just cause by the Respondent until its natural expiration. Bearing this in mind, the Single Judge deemed that the Claimant would have received in total USD 90,000 as remuneration for the period as from September 2019 until 30 May 2020, said amount consisting of the monthly salaries as from the month of September 2019, originally requested as outstanding remuneration, i.e. USD 10,000, plus the remaining amounts due until the end of the contract, i.e. USD 80,000 as 8 monthly salaries of USD 10,000 each, as from October 2019 until May 2020. Consequently, the Single Judge concluded that the amount of USD 90,000 serves as the basis for the final determination of the amount of compensation for breach of contract in the case at hand.

30. Equally, the Single Judge verified as to whether the coach had signed a new employment contract after having been dismissed by the club on 25 September 2019 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.

31. The Single Judge recalled that, after termination of the contract, it appeared that the coach was not able to mitigate his damages as he apparently remained unemployed.

32. In view of the above, the Single Judge concluded that the amount of USD 90,000 is to be paid by the club to the coach as compensation for breach of contract.

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

34. 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 10,000 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.

35. In this respect, the Single Judge reiterated that the claim of the Claimant is partially accepted and that the Respondent is at fault. Therefore, the Single Judge decided that the Respondent has to bear the costs of the current proceedings in front of FIFA.

36. 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 included between CHF 50,000 and CHF 100,000, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 10,000.

37. In conclusion and in view of the invalidity of the reason advanced by the Respondent for the early termination of the contract occurred without just cause, the Single Judge determined the costs of the current proceedings to the amount of CHF 10,000.

38. Consequently, the Single Judge determined that the Respondent has to pay the amount of CHF 10,000 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, Ridha Jeddhi, is partially accepted.

2. The Respondent, Al Batin FC,, has to pay to the Claimant, within 30 days as from the date of notification of the present decision, the amount of USD 10,000.

3. The Respondent has to pay to the Claimant compensation for breach of contract within 30 days as from the date of notification of this decision the amount of USD 90,000.

4. Any further claim lodged by the Claimant, is rejected.

5. The final costs of the proceedings in the amount of CHF 10,000 are to be paid by the Respondent to FIFA to the following bank account with reference to case nr.

20-00066/tle:

UBS Zurich

Account number 366.677.01U (FIFA Players’ Status)

Clearing number 230

IBAN: CH27 0023 0230 3666 7701U

SWIFT: UBSWCHZH80A

6. In the event that the amounts due to the Claimant in accordance with the abovementioned point 2. and 3. are 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.

*****

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 article 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS. 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