F.I.F.A. – Players’ Status Committee / Commissione per lo Status dei Calciatori – coach disputes / controversie allenatori (2020-2021) – fifa.com – atto non ufficiale – Decision 20 January 2021

Decision of the

Single Judge of the PSC

passed on 20 January 2021

regarding an employment-related dispute concerning the coach Pasquale Domenico Rocco

BY:

José Luis Andrade (Portugal), Single Judge of the PSC

CLAIMANT:

Pasquale Domenico Rocco, Italy

Represented by Andrea Bottone

RESPONDENT:

Apoel FC, Cyprus

Represented by Efthymios Agathokleous

I. Facts of the case

1. On 1 March 2019, the Italian coach, Pasquale Domenico Rocco (hereinafter: the Claimant or the coach), and the Cypriot club, Apoel FC (hereinafter: the Respondent or the club) signed an employment contract valid as from the date of signature until 31 May 2020 (hereinafter: the employment contract).

2. On the same date, the parties signed another contract valid from the date of signature until 31 May 2020 (hereinafter: the supplementary contract).

3. In accordance with the employment contract, the Respondent undertook to pay to the Claimant inter alia a monthly salary of EUR 4,000 net.

4. In accordance with the supplementary contract, the Respondent undertook to pay to the Claimant inter alia “an additional monthly royalty fee” of EUR 2,000 net.

5. Moreover, pursuant to art. 2 of the supplementary agreement, the coach was entitled to EUR 1,000 net per month for the period from 1 March 2019 until 31 May 2020, for “any accommodation as well as car expenses”.

6. Additionally, as per art. 4 of the supplementary agreement, the Claimant was entitled to certain performance-related bonuses including inter alia “In case of qualification of APOEL Fc to the Group Stage of UEFA Europa League via UCL Playoff, the Coach will receive a fixed bonus of €7,000 net”.

7. By a message dated 19 December 2019, the Respondent informed the Claimant that “following the discussions with the Club yesterday that it was decided that the employment agreement would be terminated, I hereby inform you that you are authorised not to participate at any activity and coaching duties of the Club from the 9th December and onwards”.

8. By means of a letter dated 17 June 2020, the Claimant’s representative put the club in default to pay within 10 days the total amount of EUR 28,000, corresponding to the monthly salaries of March, April and May 2020, the additional monthly royalty fee, the monthly allowance and the bonus for the qualification to the Group Stage of the UEFA Europa League. The Claimant also requested the club to pay EUR 1,500 as legal costs.

9. On 26 June 2020, the club replied stating that it agreed that the salaries of March, April and May 2020 were outstanding. However, the club mentioned that the only due amounts “is his pro rata salary from 01/03/2020 until 15/03/2020. This is because following the implementation of urgent national legislation to protect businesses in light of the COVID-19 crisis; our club has been accepted by the government to participate in the so called Full Suspension of Activities Scheme”. As such, the club held the following:

According to this Scheme, the employment of all employees in the businesses accepted to participate therein (…) has been temporarily suspended and these businesses are not obliged to pay their employees any salaries from 16/03/2020 and as long as they participate in the Scheme. During this period, the employees are entitled to a special monthly benefit equal to the 60% of their monthly salary but with a limit up to €1.214

The fact that the national legislation mentioned above is fully applicable on, amongst others, your client and duly recognised by FIFA can be seen from the FIFA guidelines to address legal consequences of COVID-19, where it is explicitly mentioned that in the case of disputes between clubs and players or coaches, the FIFA judicial bodies will- recognise and implement national law.

The due amount to your client, as mentioned in paragraph 1 above as well as the special monthly benefit, will be settle within the coming days.

10. On 14 July 2020, the coach’s representative contested the content of the club’s reply. As such, the coach indicated that “The contract between my assisted Mr. Pasquale Domenico Rocco and your company was unilaterally and without just cause terminated by you on December 8th 2019, therefore well before the COVID-19 emergency which cannot constitute a valid justification for your failure. Therefore Mr. Rocco has full right to receive as compensation the payment of all the sums foreseen by the contract until the natural expiry of the same (May 31th, 2020). For this, I invite you again to proceed with the payment of the sums all already requested with mine dated 17th June (€28,000.00 beyond the legal costs quantified in €1,500.00), in the manner indicated therein, no later than seven days from the receipt of this letter”.

II. Proceedings before FIFA

11. On 30 August 2020, the Claimant filed the claim at hand before FIFA. A brief summary of the position of the parties is detailed in continuation.

a. The claim of the Claimant

12. According to the Claimant, the coach held that on 9 December 2019, the club unilaterally terminated the contract. Nonetheless, the club continued to pay the coach his salary until February 2020.

13. The coach held that the club did not pay the coach his remuneration for March, April and May 2020, as well as the bonus for qualifying to the UEFA Europa League, in the total amount of EUR 28,000.

14. The coach considered that amount of EUR 28,000 must be paid as compensation for termination without just cause, rather than outstanding remuneration.

15. The requests for relief of the Claimant, were to condemn the club to pay the coach EUR 28,000 net plus 5% interests p.a. as follows:

i. EUR 7,000 net plus 5% interests p.a. since 1 April 2020 until the day of the effective payment;

ii. EUR 7,000 net plus 5% interests p.a. since l May 2020 until the day of the effective payment;

iii. EUR 7,000 net plus 5% interests p.a. since 1st June 2020 until the day of the effective payment;

iv. EUR 7,000 net plus 5% interests p.a. since 15 May 2020 until the day of the effective payment;

v. to condemn the club to pay all the proceedings costs and legal fees.

b. Position of the Respondent

16. According to the Respondent, the authenticity of the club’s alleged termination of the contract, submitted by the coach had to be contested. The club argued that “it never wrote or sent the said email to the Coach”. The club argued that it never terminated the coach’s contract. In this respect, the club referred to the contradictory nature of the coach’s allegations, on the one hand the club would have unilaterally terminated the contract while on the other hand, the email refers to an agreement between the parties thus to a mutual termination.

17. Moreover, the club underlined that it would not have continued paying the coach his monthly salary until February 2020 if it had terminated his contract in December 2019.

18. Also, the club mentioned that the coach did not refer to any unilateral termination or any right to compensation in his default letter dated 17 June 2020. His only request was the payment of outstanding salaries. In this respect, the coach’s representative also referred to the contract which was still valid until 31 May 2020. The conflicting information between the first and the second letter of the coach’s representative demonstrate according to the Respondent the coach’s bad faith.

19. Secondly, the club further argued that it did not pay the coach’s salary as from mid-March due to the COVID-19 pandemic and because of “the national legislation enacted”. According to the club, the Cyprus government implemented two schemes in order to assist businesses: The Full Suspension of Activities Scheme and The Partial Suspension of Activities Scheme. The businesses interested in joining the Scheme needed to file an application to the government.

20. In this context, the club held that it was allowed, like all other football clubs, to participate in the Full Suspension of Activities Scheme and in this regard, the club provided a copy of a letter dated 22 October 2020 of the Ministry of Labour, Welfare and Social Insurance of the Republic of Cyprus confirming that:

“It is hereby confirmed that the company APOEL FOOTBALL (PUBLIC) LIMITED participated in the Special Scheme supporting Companies for Total Suspension of Operations of the Ministry of Labour, Welfare and Social Insurance for the period 16/3/2020 to 12/6/2020.”

21. In light of all the above, the club concluded that the coach should only be entitled to his pro rata salary from 1 March to 14 March 2020.

22. The requests for relief of the Respondent, were the following: “Rejecting all allegations of the Claimant and the rejection of his claim”.

III. Considerations of the Single Judge of the PSC

a. Competence and applicable legal framework

23. 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 presented to FIFA on 30 August 2020 and submitted for decision on 20 January 2021. Taking into account the wording of art. 21 of the January 2021 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.

24. Subsequently, the Single Judge referred to art. 3 par. 1 of the Procedural Rules and observed that in accordance with art. 24 par. 1 in combination with art. 22 lit. c) of the Regulations on the Status and Transfer of Players (edition January 2021), he is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between an Italian coach and a Cypriot club.

25. Subsequently, the Single Judge analysed which regulations should be applicable as to the substance of the matter. In this respect, he confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Player (edition January 2021), and considering that the present claim was lodged on 30 August 2020, the August 2020 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

b. Burden of proof

26. The Single Judge recalled the basic principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof. Likewise, he stressed the wording of art. 12 par. 4 of the Procedural Rules, pursuant to which he may consider evidence not filed by the parties.

27. In this respect, the Single Judge also recalled that in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in TMS.

c. Merits of the dispute

28. His competence and the applicable regulations having been established, the Single Judge entered into the merits of the dispute. In this respect, the Single Judge started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. 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.

1. Main legal discussion and considerations

29. The foregoing having been established, the Single Judge moved to the substance of the matter, and took note of the fact that the parties strongly dispute whether the contract was terminated or not on 9 December 2019 and concomitantly if the termination was made without just cause.

30. In this context, the Single Judge acknowledged that it his task was to determine the existence of the termination, and in the consequences thereto.

31. From the circumstances surrounding the present matter and the documentation provided, the Single Judge understood that the contract was not terminated by the Respondent on 9 December 2019, as it is undisputed that the Claimant kept receiving his salaries until and including February 2020. Hence, it is clear for the Single Judge that an agreement was reached in order for the Claimant to continue receiving his due salaries but being relieved from his contractual duties.

32. Moreover, it is clear from the documentation on file that the club participated in the “The Full Suspension of Activities Scheme” put in place by the Cypriot government, whereby companies were exempted from paying salaries to their employees. The evidence provided makes clear that the Club participated in the scheme from 16 March to 12 June 2020.

33. As a result, the Claimant was entitled to receive the benefits provided for in the scheme.

34. Once the above had been established and as the inclusion of the club in the scheme goes beyond the contract duration between the parties, the Single Judge emphasised that the above does not affect the entitlement of the Claimant to his salary for the period between 1 – 15 March 2020.

2. Consequences

35. Having stated the above, the Single Judge turned his attention to the question of the consequences arising out of the previous determination and turned to the calculation of the amount of overdue payables to the coach by the club in the case at stake.

36. Accordingly, the Single Judge held that he first of all had to clarify as to whether the pertinent employment contract and the supplementary contract could be meant to be part of the same employment relationship.

37. According to the well-established jurisprudence of the Players’ Status Committee, image rights agreements are considered part of the same employment relationship if the agreement contains inter alia provisions regarding bonuses directly related to the achievement of sporting objectives, which are typical for employment contracts and not for image rights agreements. Also, the image rights agreement could contain provisions regarding accommodation, flight tickets and the use of a car, which again, are typical for employment contracts.

38. In the matter at hand, the Single Judge noted that both agreements were closely linked and should therefore be assessed jointly in order to calculate the salary of the Claimant.

39. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the Single Judge decided that the club must pay the amount of EUR 3,500, as outstanding remuneration as salary for the period between 1-15 March 2020.

40. Lastly, taking into consideration the coach’s request as well as the constant practice of the Players’ Status Committee in this regard, the Single Judge decided to award the coach interest on said remuneration at the rate of 5% p.a. as of the date the amount was due until the date of effective payment.

3. Compliance with monetary decisions

41. Finally, the Single Judge referred to par. 1 and 2 of art. 24bis of the Regulations, which stipulate that, with its decision, the pertinent FIFA deciding body shall also rule on the consequences deriving from the failure of the concerned party to pay the relevant amounts of outstanding remuneration and/or compensation in due time.

42. In this regard, the Single Judge highlighted that, against clubs, the consequence of the failure to pay the relevant amounts in due time shall consist of a ban from registering any new players, either nationally or internationally, up until the due amounts are paid and for the maximum duration of three entire and consecutive registration periods.

43. Therefore, bearing in mind the above, the Single Judge decided that, in the event that the Respondent does not pay the amounts due to the Claimant within 45 days as from the moment in which the Claimant, communicates the relevant bank details to the Respondent, provided that the decision is final and binding, a ban from registering any new players, either nationally or internationally, for the maximum duration of three entire and consecutive registration periods shall become effective on the Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.

44. The Single Judge recalled that the above-mentioned bans will be lifted immediately and prior to its complete serving upon payment of the due amounts, in accordance with art. 24bis par. 3 of the Regulations.

45. Lastly, the Single Judge concluded his deliberations by rejecting any other requests for relief made by any of the parties.

d. Costs

46. The Single Judge referred to article 18 par. a lit. 1) of the Procedural Rules, according to which no costs shall be levied by the parties for claims lodged between 10 June 2020 and 31 December 2020 (both inclusive). Accordingly, the Single Judge decided that no procedural costs were to be imposed on the parties.

47. Likewise and for the sake of completeness, the Single Judge recalled the contents of art. 18 par. 4 of the Procedural Rules, and decided that no procedural compensation shall be awarded in these proceedings.

IV. Decision of the Single Judge of the PSC

1. The claim of the Claimant, Pasquale Domenico Rocco, is partially accepted.

2. The Respondent, Apoel FC, has to pay to the Claimant, within 30 days as from the notification of this decision, the amount of EUR 3,500 as outstanding remuneration plus 5% interest p.a. as from 1 April 2020 until the date of effective payment.

3. Any further claims of the Claimant are rejected.

4. The Claimant is directed to immediately and directly inform the Respondent of the relevant bank account to which the Respondent must pay the due amount.

5. In the event that the amounts due to the Claimant in accordance with the above mentioned point 2. are not paid by the Respondent within the stated time limit, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision.

6. This decision is rendered without costs.

For the Single Judge of the PSC:

Emilio García Silvero

Chief Legal & Compliance Officer

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) within 21 days of receipt of the notification of this decision.

NOTE RELATED TO THE PUBLICATION:

FIFA may publish this decision. For reasons of confidentiality, 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 Procedural Rules).

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