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 14 February 2020

Decision of the Single Judge

of the Players’ Status Committee

passed on 14 February 2020,

by

Roy Vermeer (the Netherlands)

Single Judge of the Players’ Status Committee,

on the claim presented by the coach

Antonio Luis Severa Santandreu, Spain

represented by Mr Iñigo de Lacalle & Mr Ignacio Triguero Gea

as “Claimant ”

against the club

Guizhou Hengfeng FC, China PR

represented by Mr Bing Zhang & Mr Yu Zhuang

as “Respondent”

regarding an employment related dispute between the parties

I. Facts of the case

1. On 28 April 2017, Mr Antonio Luis Severa Santandreu (hereinafter: “Claimant”), and the Chinese club, Guizhou Hengfeng FC (hereinafter: “Respondent” or “club”) signed an “initial contract” (hereinafter: 1st contract), valid as from 1 May 2017 until 31 December 2017.

2. Pursuant to Article 2 of the 1st contract, the club appointed the Claimant “and [the Claimant] accepts appointment from [the club] as the professional Physical coach working in Guizhou Hengfeng Zhicheng FC Football Team. [The Claimant] must fulfill all duties as Second Assistant coacht, and do his best to reach season target as set out by [the club]. [The Claimant] must take care and manage of all the players in the first Team, subject to Head Coach instructions”.

3. By means of Article 7 of the 1st contract, the Claimant was obligated to “participate in [club’s] all training, matches and related activities and make effort to complete specified training and matches”.

4. Under the 1st contract, the Claimant was inter alia entitled to a monthly salary of EUR 40,000 “net of Chinese taxes to be paid within the last five business days of each month”.

5. Article 5.5 of the 1st contract stipulated the following: “The amounts to be paid under the present contract are net of taxes […] and withholding tax. Therefore, [the club] will be responsible for any tax liability derived from the payments to made to [the Claimant] pursuant to this contract. [The club] would have to make the corresponding gross up in order to pay [the Claimant] the net amount agreed. [The club] will provide each year (between January 1st and February 28th) with to [the Claimant] the tax certificates as well as the tax withholding certificates in order to comply with its tax obligations before the tax authorities.”

6. On 23 November 2017, the parties signed an employment contract (hereinafter: 2nd contract) valid as from 1 January 2018 until 31 December 2018.

7. According to Article 2 of the 2nd contract, “[the club] hereby appoints [the Claimant] and [the Claimant] accepts appointment from [the club] as the professional physical coach […]. [The Claimant] must fulfill all duties as physical coach, and do his best to reach season target as set out by [the club]. [The Claimant] must take care and assist in managing of all the players in the first team.”

8. In accordance with the Article 5.1 of the 2nd contract, the Claimant was inter alia entitled to EUR 350,000 payable in 12 monthly instalments of EUR 29,166.66 each “to be paid within the last five business days of each month”.

9. Pursuant to Article 5.2.9 of the 2nd contract, the Claimant “shall receive 45,000 Yuans for each victory in an official game. Said bonuses are to be paid net and within 15 days from the respective game.”

10. Article 5.5 of the 2nd contract stipulated the following: “The amounts to be paid under the present contract are net of taxes […] and withholding tax. Therefore, [the club] will be responsible for any tax liability derived from the payments to made to [the Claimant] pursuant to this contract. [The club] would have to make the corresponding gross up in order to pay [the Claimant] the net amount agreed. [The club] will between January 1st and February 28th 2018 with to [the Claimant] the tax certificates as well as the tax withholding certificates in order to comply with its tax obligations before the tax authorities.”

11. In accordance with Article 6.2 of the 2nd contract, the club shall provide the Claimant “with 15.000 Yuans monthly accommodation fee”.

12. According to Article 7.1 of the 2nd contract, the Claimant “must fulfill the following obligations:

- Observe all laws and regulations of [China];

- Observe all regulations, rules and statutes of [FIFA], China Football Association Super League Committee and China Football Association Super League Match.”

13. By means of Article 9 of the 2nd contract, if the club or the Claimant “cancel (terminates) this contract prematurely without just cause, or of [the Claimant] terminates this contract prematurely but with just cause […], pursuant to Article 17 of [the FIFA RSTP] the fulfilling party will be entitled to terminate the contract with a just cause reason and request the breaching the party the amount of all the salaries and bonuses […] pending at the date of termination until 31 of December 2018 in accordance with Article 5. The amount to be paid resulting from the anticipated termination shall be paid taken into consideration the tax residence of [the Claimant] in 2018.”

14. In accordance with Article 10.2 of the 2nd contract, “in case no settlement can be reached through consultation and due to the international nature of the present contract, any disputes related to the contract should be submitted in first instance to [the FIFA PSC] and in appeal to [the CAS]. Both parties expressly renounce the submission of any dispute to any other body different form FIFA and the CAS.”

15. On 5 June 2018, the club informed the Claimant in writing that it terminated the employment contract with immediate effect. In said letter, the club further held that it was “disappointed for the sporting results”, asking the Claimant to “consider the opportunity to find an amicable solution in order to negotiate the economic terms of the termination of our employment relationship”.

16. On 12 June 2018, the Claimant inter alia requested the following in writing from the club:

a) Payment of taxes corresponding to:

i) December 2017 salary;

ii) Bonus for maintaining the category at the Chinese Superleague;

iii) Monthly salaries corresponding to January, February, March, April and May 2018, as well as 5 days of June 2018;

iv) The “certificate of the payment of the taxes regarding said amounts”.

b) Payment of the following outstanding amounts:

i) Salary of May 2018 and 5 days of June 2018;

ii) Chinese Yuan (CNY) 45,000 “for the victory against Harbin”.

c) Accommodation corresponding to the months of January, February, May and June 2018.

Claim of the Claimant

17. On 2 July 2018 the Claimant lodged claim against the club for breach of contract in front of FIFA, requesting the following:

a) “Ordering [the club] to pay all the taxes corresponding to:

i) The salary corresponding to December 2017 under the [1st contract];

ii) The bonus for maintaining the category at the Chinese Superleague corresponding to last season under the [1st contract];

iii) The salaries of January, February, March and April 2018;

iv) As well as to provide [the coach] with the corresponding tax withholding certificates corresponding to said amounts and with a tax residence certificate.

b) Ordering [the club] to pay the following outstanding salaries broken down as follows”:

i) EUR 34,027.77 “net” corresponding to the entire May 2018 salary, as well as 5 days of the June 2018 salary, plus 5% interest p.a. as from 6 June 2018 until the date of effective payment;

ii) Chinese Yuan (CNY) 77,500 corresponding to the accommodations costs borne by the coach, plus 5% interest p.a. as from “the due dates” until the date of effective payment;

iii) CNY 45,000 “corresponding to the coach for the victory against Heilongjiang Lava Spring FC (Cup Match)”, plus 5% interest p.a. as from “the due dates” until the date of effective payment.

c) EUR 199,305.51 “net” as compensation for breach of contract plus 5% interest p.a. as from 6 June 2018 until the date of effective payment;

d) “Ordering [the club] to pay all the taxes corresponding to the agreed outstanding and compensation, as well as to provide [the coach] with the corresponding tax withholding certificates corresponding to said amounts;

e) That the club pay all the legal and procedural costs.

18. Regarding the admissibility of the claim, the Claimant argued that he was “hired to fulfil all duties as Second Assistant coach”. In this context, the Claimant maintained that he participated “also in trainings and official matches of the players of the first team of the club”. Therefore, as per the Claimant, FIFA has jurisdiction to deal with the matter.

19. With regards to the substance of the claim, the Claimant explained that the club rejected his request of 12 June 2018. Consequently, the Claimant lodged a claim in front of FIFA for termination of contract without just cause, requesting outstanding remuneration and compensation.

20. According to the Claimant, as per clause 5.5 of the contract, the club “would be obliged to pay the remuneration net of taxes and therefore, the club pay the taxes in China and provide the Claimant with the corresponding certificates that said amounts have been paid”. Thus, as per the Claimant, “the club will be obliged to make the gross-up of all the amounts stipulated herein, taking into consideration the relevant tax rate of [China] for the fiscal year 2018”, i.e. 45%.

21. Therefore, as per the Claimant, the amounts to be paid by the club corresponding to outstanding remuneration and compensation would be “EUR 338,333.26 gross (EUR 233,333.28 / 45%)”.

The club’s reply to the Claimant’s claim

22. In its reply to the Claimant’s claim, the club stated that FIFA lacked jurisdiction to deal with the matter, arguing that the Claimant’s claim should be declared inadmissible.

23. First of all, the club referred to Article 2 of the 2nd contract and held that the Claimant was hired as a physical coach. In this context, the club argued that, “on the basis of well-established FIFA and CAS jurisprudence, a physical trainer, as the Claimant, is not comparable with the activity of a coach (or assistant coach) and, therefore, the relevant dispute is not considered an employment-related dispute in accordance with article 6 of the FIFA Procedural Rules”.

24. Moreover, the club referred to clause 7 of the 2nd contract and held that the parties “explicitly agreed to observe all regulations, rules, and statutes of the Chinese Football Association (CFA)”. Thus, as per the club, “the Chinese national football legal body is constituted according to the FIFA requirements of “existence of an independent arbitration tribunal” and “guaranteeing fair proceedings” and, therefore, the CFA Arbitration Commission has the jurisdiction in the case at stake and not the FIFA PSC”.

25. In continuation, the club again referred to clause 7 of the 2nd contract and held that Chinese law is the applicable law to the matter at hand. In this regard, the club argued that “despite the fact that article 10 of the [contract] contains reference to Swiss law and FIFA Regulations, Chinese law is mandatorily applicable on foreign employees in China”.

26. In light of the above, as per the club, “independently from the body which will have jurisdiction on the case (the FIFA PSC or the CFA Arbitration Commission) and despite the contractual provisions agreed among the Parties, the above recalled Chinese law is mandatory and it must be applied in the decision of the case at stake”.

27. With regards to the substance of the Claimant’s claim, in particular his request for compensation for breach of contract, the club firstly highlighted that, contrary to the stipulated in clause 9 of the 2nd contract, Art. 17 FIFA RSTP is not applicable. Instead, as per the club, any compensation should be calculated in accordance with Chinese Labour Law, resulting in a compensation of “no more than EUR 87,499.98”.

28. In continuation, the club stated that, as per Chinese Labour Law, “if the monthly salary of a worker is three times the average monthly salary of the workers of the region for the previous year, […] the rate for his financial compensation payable shall be three times the average monthly salary of the workers”.

29. With regard to the Claimant’s request for outstanding salary, the club “will not hesitate to pay this claimed amount at the end of this procedure in case the FIFA PSC shall decide in that sense”.

30. Regarding the Claimant’s request for CNY 77,500 corresponding to accommodation expenses, the club maintained the coach did not provide any evidence. Having said this, the club argued that it covered the coach’s stay at the “Hyatt Hotel”, but that the Claimant himself preferred to go to another hotel.

31. With reference to the Claimant’s request for alleged outstanding bonus, the club held that the contract only referred to matches of regular championship and not the cup.

32. Finally, with regard to the Claimant’s request that the club provide him with “the corresponding tax withholding certificates”, the club stated that “it will not hesitate to produce all the corresponding tax withholding certificates their employment contract as soon as it will receive them from the Chinese Tax Authority. The [Claimant’s] request on this point refers to payments concerning the 2018 year, which are not ready to be delivered to the employer yet, therefore the Club is absolutely on time for receiving the Tax certificates from the local authorities.”

The Claimant’s replica

33. In his replica, the Claimant firstly held that clause 7 of the 2nd contract did not provide for a choice of law in favour of Chinese Law. In this regard, the coach pointed out that in accordance with PSC and DRC jurisprudence, FIFA’s regulations prevail over any national law.

34. In continuation, the coach referred to clause 9 of the 2nd contract, and maintained that said clause is applicable to the matter at hand, given that it is reciprocal and proportionate. Therefore, as per the Claimant, the application of Chinese law to calculate the amount of compensation is unfounded.

35. The the Claimant further noted that in its reply, the club confirmed that the payment of the amounts due to the Claimant “must be paid in net term”. As such, the Claimant reiterated that it requested outstanding remuneration and compensation in total amount of “EUR 233,333.28 net and that the club provides […] the corresponding certificates”.

The club’s duplica

36. In its duplica, the club firstly held that in his replica, the Claimant did not insist in obtaining the alleged CNY 77,500 corresponding to accommodation expenses. Therefore, as per the club, the Claimant waived this amount.

37. With regard to the Claimant’s request that net amounts need to be paid to him and tax needs to be paid to the Chinese authorities, the club underlined that, in line with its jurisprudence, FIFA does not have competence to decide on such issues.

38. According to the club, since the Claimant did not demonstrate whether he was a resident in China or elsewhere for the year 2018, he cannot “request to receive a gross—up amount of an additional 45%”.

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 case at hand. In this respect, he took note that the present matter was submitted to FIFA by the coach on 2 July 2018. Furthermore, the Single Judge noted that the matter was submitted for decision on 14 February 2020. Taking into account the wording of art. 21 of the 2019 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.

2. Subsequently, the Single Judge recalled that in accordance with art. 3 par. 1 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) in combination with art. 23 par. 1 and art. 22 lit. c) of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations) he is, in principle, competent to deal with employment-related disputes between a club or an association and a coach of an international dimension.

3. Furthermore, the Single Judge recalled that, as established in art. 6 par. 1 of the Procedural Rules, edition 2019, only members of FIFA, clubs, players, coaches or licensed match agents are admitted as parties in front of the relevant decision-making bodies of FIFA. Thus, in neither art. 6 par. 1 of the Procedural Rules nor art. 22 lit. c) of the Regulations or any other provision in any of FIFA’s regulations is there a basis to establish FIFA’s competence to hear disputes involving physical trainers.

4. With the aforementioned considerations in mind, the Single Judge turned his attention to the content of the employment contract concluded between the Claimant and the Respondent on 23 November 2017 and noticed that in accordance with the document in question, the Claimant had been hired as “Physical coach” of the Respondent.

5. At this stage, the Single Judge paid close attention to the argumentation of the Claimant, who had alleged that, in spite of the terms of the contract, he was employed “to fulfil all duties as Second Assistant coach”. Mover, the Single Judge recalled that, as per the Claimant, he participated “in trainings and official matches of the players of the first team of the club”.

6. In this regard, the Single Judge determined that in accordance with the rule of burden of proof mentioned under art. 12 par. 3 of the Procedural Rules which provides that “any party claiming a right on the basis of an alleged fact shall carry the burden of proof”, it undoubtedly fell upon the Claimant to prove that he was in fact exercising duties of a coach and that he could thus be considered as a party in front of FIFA in the sense of art. 6 par. 1 of the Procedural Rules. However, after a thorough analysis of the arguments as well as the documentation submitted by the Claimant, the Single Judge found that the Claimant had not provided any conclusive evidence proving that he was working as a coach for the Respondent.

7. Therefore, the Single Judge had no other alternative than to rely on the content of the contract, which clearly stated that the Claimant was hired by the Respondent to perform duties as physical coach. In particular, the Single Judge observed that, according to Article 2 of the 2nd contract, the duties of the Claimant are described as follows: “[The Claimant] must fulfill all duties as physical coach, and do his best to reach season target as set out by [the club]. [The Claimant] must take care and assist in managing of all the players in the first team.”

8. In this regard, the Single Judge noted that the duty as described above is not the one of a coach in the sense of art. 6 of the Procedural Rules and rather refer to the position of fitness trainer with solely physical tasks to enhance the players’ physical condition.

9. In light of the above, the Single Judge had no doubt that the contract at the basis of the present dispute was concluded in order to acquire the services of the Claimant as a physical coach and not as a coach.

10. In view of all of the above, the Single Judge, referring once again to art. 6 par. 1 of the Procedural Rules in combination with art. 22 c) of the Regulations, decided that the claim of the Claimant is not admissible in view of the fact that the latter, being a physical coach, cannot be viewed as a party who is entitled to seek redress in front of the decision-making bodies of FIFA, in accordance with art. 6 par. 1 of the Procedural Rules. In any case, the dispute is based on an employment contract signed by and between a physical coach and the Respondent and also therefore does not fall within the competence of the decision-making bodies of FIFA.

11. In view of the above, the Single Judge concluded that the claim of the Claimant is not admissible in view of the fact that the latter was not a party admitted in front of FIFA decision-making bodies at the time he lodged his claim, i.e. on 2 July 2018.

12. Therefore, the Single Judge decided that the Claimant is not entitled to seek redress in front of the decision-making bodies of FIFA in accordance with art. 6 par. 1 of the Procedural Rules.

13. 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 proceedings before the Players’ Status Committee including its Single Judge, costs in the maximum amount of CHF 25,000 are levied. The relevant provision further states that 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).

14. In this respect, the Single Judge reiterated that the claim of the Claimant is inadmissible. Therefore, the Single Judge decided that the Claimant has to bear the major part of the costs of the current proceedings in front of FIFA.

15. In conclusion, and considering the complexity of the case as well as the volume of submissions, the Single Judge determined the costs of the current proceedings to the amount of CHF 10,000.

16. Consequently, the Single Judge established that the Claimant has to pay the amount of CHF 10,000. The Single Judge further noted that the Claimant already covered CHF 5,000 as an advance of costs at the beginning of the proceedings. Consequently, only the additional amount of CHF 5,000 is to be paid by the Claimant.

III. Decision of the Single Judge of the Players’ Status Committee

1. The claim of the Claimant, Antonio Luis Severa Santandreu, is inadmissible.

2. The final costs of the proceedings in the amount of CHF 10,000 are to be paid by the Claimant to FIFA, CHF 5,000 of which have already been paid as advance of costs at the start of the present proceedings. Consequently, the additional amount of CHF 5,000 is to be paid by the Claimant to FIFA to the following bank account with reference to case no. 18-01294/osv:

UBS Zurich

Account number 366.677.01U (FIFA Players’ Status)

Clearing number 230

IBAN: CH27 0023 0230 3666 7701U

SWIFT: UBSWCHZH80A

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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 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.

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