F.I.F.A. – Players’ Status Committee / Commissione per lo Status dei Calciatori – coach disputes / controversie allenatori (2020-2021) – fifa.com – atto non ufficiale – Decision26 January 2021
Decision of the
Single Judge of the Players' Status Committee
Passed on 26 January 2021,
regarding an employment-related dispute concerning the coach Fabio LOPEZ
BY:
Johan van Gaalen (South Africa), Single Judge of the PSC
CLAIMANT 1 / RESPONDENT 2:
Fabio Lopez, Italy
Represented by Mr. Yuri Zaytsev & Ms. Anna Tokmakova
CLAIMANT 2 / RESPONDENT 1:
Thanh Hoa Football Club, Vietnam
Represented by Mr. Thomas Spee
I. FACTS OF THE CASE
1. On 20 November 2019, the Italian coach, Mr Fabio Lopez (hereinafter: the coach) and the
Vietnamese club, Thanh Hoa Football Club (hereinafter: the club) concluded an employment
contract (hereinafter: the contract) valid as from 20 November 2019 until 15 November 2021,
whereby the coach was employed as the club’s Head Coach.
2. According to art. 1.4. of the contract, the coach was entitled to a salary before tax (net) of
USD 6,000.
3. Art. 1.5 of the contract provides that the coach is entitled to bonuses “as per regulations of
the Footbal Club and Contract terms and appendixes”.
4. Art. 3 of the contract stipulates as follows:
“Termination
(…)
3.3. Unilateral termination:
a. [the coach] shall have the rights to unilaterally terminate the Contract before its expiration
in accordance with Article 37 of the Labor Law. For other circumstances, if Party B desires to
unilaterally terminate the Contract, he/they shall deliver a prior notice of 30 days to the Club
and return an amount of Contract value equivalent to the remaining period of the Contract.
If such remaining period is less than 03 months, the compensation shall be actual salary
thereof only.
b. The Club shall have the right to unilaterally terminate the Contract with [the coach] under
Article 38 of the Labor Law and shall not have the rights to do the same under Article 39 of
the Labor Law. For other circumstances, if the Club desires to unilaterally terminate the
Contract, a prior notice of at least 15 days, [the club] and [the coach] will sit down to agree
on the support level for [the coach] during his application for a new job.”
5. Art. 1 of Appendix 1 of the contract provides the following:
“At the end of the football league every year, if the team reaches the rank of 5th or higher,
the coach will receive the full salary of 6000 USD/month (six thousand usd) as agreed.
If the team is ranked 6th or lower, the Club has the right to liquidate the contract before
term without any compensation. In this case, the Coach is responsible for refunding the
signing fee equivalent to the remaining time of the signed contract.
If the team loses or draws long (in 06 consecutive games); or internal players run by the head
coach, the management of long-term disconnection, affecting the team's performance, the
Company leadership will comment and join with the head coach and the coaching staff. In
case the Head Coach does not cooperate, the Club has the right to liquidate the contract
before term without any compensation. In this case, the Coach is responsible for refunding
the signing fee equivalent to the remaining time of the signed contract”.
6. Art. 2 of Appendix 1 indicates that the salary is due the 25th of the next month (if the club
has not paid on time, it must notify the coach).
7. On 9 June 2020, the club wrote to the coach and his assistant, Mr Salvatore Orofino, the
following email:
“Dear Mr Fabio and Mr Salvatore
Thanh Hoa Football Club invites you come to the Club Office (…) on 10/6/2020 to discuss
about the work. At the same time, the club informed you that on 9/6/2020, you did not
come to the club to work as prescribed”.
8. The coach responded to the aforementioned email on the same day with an email from his
legal representative, wherein he stated that on 6 June 2020, the club’s Sport Director told
him he was no longer a part of the team and that on 8 June 2020 he was suspended. The
coach concluded: “the club is no longer entitled to discuss with the coaches their work, when
they already actually fired. Please let me know if you are ready to discuss the consequences
of the contract termination”.
9. On 10 June 2020, the club sent the coach a letter referring to the email of 9 June 2020 and
the fact that the coach did not show up at the club’s premises on 10 June 2020.
10. On 11 June 2020, the player’s legal representative requested the club to provide explanations
as to why the coach was suspended from his activities, why he was replaced by another
coach, why he was asked to leave the club premises on 8 June 2020 and why the club’s
Sport Director told the coach in a Whatsapp conversation that he was no longer a part of
the team.
11. On 17 June 2020, the club sent an official letter to the coach with the following
content:
“At no time was it served (formally or informally) on the coaches that the club wished to
terminate its contractual relationship with the coaches.
(…)
On June 9, 2020, your clients did not show up for work. On June 9, 10 and 11, the
Club, in desperation, summoned the coaches by official mail. At no time did Mr Lopez and
Mr Orofino show up for these appointments, as the club received confirmation that they
had already left the town.
(…)
Your clients are saying loud and clear that the Club has hired a new coaching staff. This is
simply not true. On June 8, seeing that Mr. Lopez and Mr. Orofino were leaving the training
center, the club brought in a coach from the youth team (already under contract with the
club) to make up for the absence of your clients.
We would like to stress out that Thanh Hoa Football Club has always complied with all its
contractual obligations towards Mr. Lopez and Mr. Orofino.”
II. PROCEEDINGS BEFORE FIFA
12. On 3 July 2020, the club filed a claim for compensation for breach of contract against the
coach before FIFA. Furthermore, on 9 July 2020, the coach brought a parallel claim against
the club for outstanding remuneration and compensation for breach of contract against
the club. A summary of the parties’ positions detailed below.
a. The claim of the club
13. According to the club, the coach breached the contract on multiple occasions.
14. In this regard, the club alleged that the coach did not attend a post-game press conference
on 6 June 2020 because he was upset about the bad performance of the team. The club
also alleged that, once back in the dressing room, the coach fought with his players.
15. Secondly, the club stated that the coach abandoned his place of work. The coach allegedly
deliberately decided to leave the club's training centre on 8 June 2020 after his weekly
meeting with the club, arguing that the management had verbally informed him of its
intention to remove him from the leadership of the first team, which the club strongly
denies.
16. On 9 June 2020, the club sent an email to the coach asking him to resume his duties on 10
June 2020.
17. On the same date, the club received an official correspondence from the coach
lawyers. In this letter, to the club's great surprise, the coach informed the club that, in his
view, there was no longer any contractual relationship between them, arguing that the
coach had been suspended from his duties and replaced by another coach. These
allegations are strongly disputed by the cub. Thus, the club concludes that on that date, i.e.
9 June 2020, the coach terminated the contract without just cause.
18. Furthermore, the club held that, by not presenting himself to the club from 8 June 2020
until he left the country, there is no doubt that the coach decided to unjustly terminate his
contract with the club, this even though the club had asked him to appear on several
occasions in order to fulfil his contractual obligations.
19. Equally, the club stated that, by sending two formal notices to the coach, it had clearly
shown its willingness to continue the contractual relationship. In particular, the club
underlined that no Whatsapp message, indicating the dismissal of the coach, had been sent
by any official club representative. In contrast, by deciding not to attend to more than five
training sessions and one official game, leaving first the club city and then the country, the
coach has shown his willingness not to fulfil his obligations.
20. The club further underlined that the club has clearly invited the coach on numerous
occasions to discuss the matter, however the sole response of the coach to this request to
talk has been fake allegations, total absence and the explicit termination dated June 2020.
21. In light of the above, the club made the following requests:
Compensation for the value of the remaining contract:
Remaining salary June 2020-December 2020 (art. 1.4 employment agreement): USD 42,000
before taxes, (7x 6.000,00)
Remaining salary January 2021-November 2021 (art. 1.4 employment agreement): USD
66,000,00 before taxes, (11x 6.000,00)
Sub-total amount: USD 108,000
Additional compensation
“Furthermore, and subject to the early termination of the contract being due to
overdue payables, the Club shall be entitled to an Additional Compensation of
18.000,00 USD (= 3 months salary) in accordance with article 17 FIFA RSTP.”
Total amount: USD 126,000
To award interests calculated at 5% p.a. on the amount requested for compensation from
the day current claim was lodged, until the day the sums are effectively paid;
In accordance with Article 17 para 3of the RSTP apply a sporting sanction against the coach;
On the basis of article 17.2 of the FIFA regulations, any new club engaging the
respondent shall be jointly and severally liable.
b. The claim of the coach
22. The coach recounted his own version of certain facts leading up to the termination of the
employment relationship as follows.
23. During the season 2020, the team lost three matches in a row in the V. League on 8 March,
15 March and 6 June 2020.
24. On 5 June 2020, the coach requested the club to provide him with a ticket for an afternoon
flight back to Thanh Hoa on 7 June 2020 after the away game which would take place on
6 June 2020 due to personal reasons, whereas the team was travelling in the morning of 7
June 2020. Accordingly, the club provided him with a flight ticket for the afternoon.
25. On 6 June 2020, the club’s Sports Director contacted the coach by Whatsapp and used
words such as “You did not complete the mission”, “In my eyes you are no longer the head
coach” and “We are considering transferring you to a training program”.
26. Upon arrival in Than Hoa on 7 June 2020, the coach found out from the media that the
club’s management had held a meeting with the team regarding his status without
notifying him, wherein it states that all players had agreed that the coach should be
dismissed and that the Chairman would announce said dismissal the following day.
27. In this regard, the coach held that the club took advantage of his absence to maliciously
hold a meeting with a purpose to make a decision on the coach’s dismissal without listening
to his position and to present the termination of the contract in the media as an alleged
conflict between the coach and the team.
28. The coach further explained that in another media source on the same evening of 7 June
2020, the new head coach of the club was announced as being Mr Nguyen Thanh Cong,
who would be the head coach until the end of the season 2020. The article further stated
“at noon tomorrow (8 June) coach Nguyen Thanh Cong will officially join the new team
and start working immediately. Also, following an emergency meeting tonight, Thanh Hoa
club leaders also decided to choose Mai Xuan Hop as assistant coach to Nguyen Thanh
Cong”.
29. The coach claimed that, despite the announcement of his dismissal in the media, he was
not formally notified of the termination of the contract. The club translator informed him
that, together with his assistant, Mr Salvatore Orofino (hereinafter: the assistant coach), he
was convened to a meeting on 8 June 2020 at 9:30. However, in the early morning of 8
June 2020, the Sports Director informed him that the meeting would take place at 8:00. In
the eyes of the coach, the club showed him disrespect and was playing some tactics by
changing the time of the meeting just 20 minutes before its start, in order to create the
illusion of a disciplinary offence on his part.
30. On 8 June 2020, the coach and the assistant coach came to the meeting, where they were
notified that a new coaching staff would replace them. During this meeting, he was
presented with the minutes of said meeting wherein it stated that the parties had mutually
agreed to terminate the contract. The coach refused to sign these minutes.
31. The coach was then presented with a second version of the minutes, wherein it stated that
the coach and the assistant coach were suspended as from 8 June 2020 until the parties
agree to terminate the contract. The coaches refused to sign this document as well.
32. Later in the evening of 8 June 2020, the new coach, Mr Nguyên Thành Công (the “new
coach”) was presented to the team. This presentation of the new coach was covered in the
press and published on the club’s Facebook page. The new coach and his staff held a
training session of the team instead of the coach and the assistant coach.
33. On 10 June 2020, the coach received an email from the club, according to which the club
requested him “to present at the Club’s Office for duties at 9h00 on 11.06.2020. If the
named persons continue this streak of absence, it is assumed to be a severe violation
discipline regarding the Obligations stated in the Labor Contract concluded”.
34. On the same day, on 10 June 2020, the coach’s lawyer replied to the club by email, asking
the club to clarify which duties they expect the coach to fulfil, since he was suspended from
his work and replaced by another coach.
35. On 11 June 2020, the coach received a letter from the club dated 10 June 2020, in which
the club stated: “the Club would like to emphasize that not until the Labor Contract ends,
your presence for duties at the Club is mandatory”.
36. On 11 June 2020, the coach’s lawyer requested the club to reinstate the coach in his
position on 15 June 2020 at the latest. Despite the fact that the coach wished to be
reinstated, the club ignored this request by means of which it de facto confirmed
termination the coach’s contract.
37. In the meantime, on 11 June 2020, local media published a report about the training session
of the club’s team, and the pictures published in media clearly demonstrate that the new
coach was present at the training session along with the club’s Chairman.
38. On 12 June 2020, the club’s team had a match against Sông Lam Nghệ An, and the new
coach was indicated in the Match Protocol as the club’s head coach.
39. As a result of the club’s behaviour, the coach and the assistant coach understood that the
club was not interested in their services, and therefore they came to the conclusion that the
club de facto terminated the employment of the coaches.
40. Therefore, on 15 June 2020, the coach notified the Sports Director via WhatsApp message
that he had returned his apartment to the owner.
41. Having received a letter of the club’s lawyer dated 17 June 2020, the coach understood
that a constructive dialogue with the club was not possible. In this regard, the coach refuted
all arguments included in such letter. In particular, the coach denied having terminated the
contract, since it was the club which had suspended him, while he had repeatedly requested
him to explain what his role in the club should be following his replacement, and requested
to be reinstated in his position, to no avail.
42. Considering the above-described facts, the coach is of the opinion that the club terminated
the contract without just cause through its behaviour. Indeed, the coach believes that he
was effectively deprived the possibility to comply with his contractual obligations as he was
suspended by the Respondent from his work duties and another person was immediately
hired in his position, which cannot be construed other than a breach of the contract by the club. In this regard, the coach referred to the minutes of the meeting held on 8 June 2020.
Furthermore, the fact that the club effectively terminated the employment relationship with
the coach was widely covered by the media.
43. As to the absence of a just cause, the coach stated that it is evident that the club terminated
the contract due to its discontent with the team’s results; hence the reason based on which
the contract was terminated by the cub constitutes a subjective assessment of the club
rather than an objective criterion and cannot be deemed a just cause or a valid reason to
terminate.
44. Equally, the coach, referring to jurisprudence of FIFA’s deciding bodies, underlined that the
termination of an employment contract is always an ultima ratio measure and that the club
did not provide any warning to the club prior to terminating the contract.
45. The coach denied all accusations of being absent since he was suspended from work as of
8 June 2020 until the club requested him on 10 June 2020 to present himself at the club’s
office; however the club did not proceed to specify which duties exactly the coach was
expected to fulfil after he had been suspended from work and the new coach had been
appointed.
46. Finally, the coach claimed that the club had not paid him the salaries of March and April in
full without any valid reason, whereas it owes him salary as from 1 to 7 June 2020.
47. In light of the above, the coach made the following claims:
USD 103,600 as compensation for breach of contract, representing the residual
value of the contract (23 days of June 2020 + 16 x USD 6,000) plus 5% interest
p.a. as of 8 June 2020 until the date of effective payment;
USD 1,800 as outstanding remuneration for March 2020, plus 5% interest p.a. as
of 26 April 2020 until the date of effective payment;
USD 2,400 as outstanding remuneration for April 2020, plus 5% interest p.a. as of
26 May 2020 until the date of effective payment;
USD 1,400 as outstanding remuneration for the period from 1 June 2020 until 7
June 2020, plus 5% interest p.a. as of 8 June 2020 until the date of effective
payment.
c. Club’s answer to the coach’s claim
48. In its replica to the coach’s claim, the club insisted on its claim and provided some further
accounts as to the facts of the dispute.
49. In this regard, the club alleged that, after the post-game conference on 6 June 2020, the
coach returned to the changing room where he expressed his intention to terminate the
contract in front of the players. The club provided a video allegedly showing the coach in
the changing rooms.
50. The club alleged that the coach was, on that occasion, “enraged, impulsive and unable to
control his anger”, and that he told the club management he wanted to terminate his
contract and that it was out of the question for him to take the same flight as his players,
in violation of his contract. The "personal reasons" invoked by the coach to take another
flight were none other than the coach's own willingness not to return with the group and
to take another flight than the one already reserved for him.
51. Furthermore, the club contested having authorized the coach to take another flight and
affirmed that the WhatsApp conversations of the coach's translator have no legal value
since this person is not an employee of the club. The club hypothesised that it was the
translator who helped the coach book another flight.
52. The club further alleged that the coach had decided that his “adventure in Vietnam” had
come to an end and therefore decided to build up a “fable to try to prove that the club
breached the contract”.
53. The club denied that the Whatsapp exchange with the Sports Director constituted an official
dismissal, since the Sports Director does not speak English and always used the services of
a translator when communicating with non-Vietnamese speaks, and in any case the
message indicated that the coach would be transferred to a training programme. Indeed,
according to the club, their intention was for the coach to improve his skills with a coachrelated
educational programme, whereby he could, inter alia, learn how to master his anger
and thus avoid that such situations be repeated in the future.
54. The club underlined that there is no doubt that it has, on several occasions, confirmed the
coach in his position and asked him to attend several meetings and training sessions both
by WhatsApp and official letters.
55. With respect to the coach’s argument that he learnt of his dismissal through the press, the
club held that such argument must be rejected as press articles rely purely on speculations.
Moreover, the club stressed that the press articles are dated 7 June 2020 while the club had
sent formal notices on 9 and 10 June 2020 to resume his duties.
56. As to the meeting of 8 June 2020, the club stated that during this meeting, it told the coach
that his dispute with the players, his absence at the press conference and his refusal to fly
back to the team were serious breaches of his employment contract. The club asked the
coach not to behave like that in future. During this meeting, the coach allegedly indicated
to the club his intention to leave his position, and proposed to the club to reach an amicable
agreement to terminate the contract. Discussions to that effect then took place, which is
confirmed by the minutes of the meeting. In this respect, the club stated that, contrary to the coach’s misleading allegations, the minutes of a meeting merely constitutes a neutral
report of the discussions held during the meeting.
57. The club held that no agreement was reached at this meeting and that there is therefore
no doubt that the parties were still bound by their contract at that time. It is also for this
same reason that the parties did not sign the minutes of the meeting, thus depriving these
documents of any legal value.
58. In continuation, the club once again denied having expressed its desire to end its
relationship with the coach at the meeting on 8 June 2020 and that the only option the
club had to make up the absence of his coach was to bring in a coach from the youth team
of the club. Doing so the club confirms that a new coach was not hired. The club underlined
that Mr Nguyen Thanh Cong was hired as Director of Thanh Hoa Young Football Training
Center starting on 1 January 2020.
59. The coach did not prove that the club denied him access to the training facilities, nor did
he prove that the club had terminated the contract. The club thus insisted in its position
that it was the coach who had terminated the contract without just cause.
d. Coach’s answer to the club’s claim & amended claim
60. The coach equally insisted in his claim and denied the club’s allegations, which, in his
opinion, are not supported by any evidence.
61. For instance, according to the coach, the club does not adduce any evidence to the alleged
facts that “the coach fought with his players” or that he mentioned to the management
“his intention to leave the Club during a meeting”, therefore these alleged facts shall not
be taken into account.
62. Equally, the coach dismissed the club’s general statement as to the fact that it was his
initiative to stop attending the club’s training sessions and leave the country (which is not
true as the coach is still in Vietnam) whereas the club had no intention to end the
contractual relationship with him.
63. Furthermore, the coach provided an alleged audio recording of the aforementioned
meeting on 8 June 2020, which, in his opinion, demonstrates that he did not in any way
express his intention to leave the club and terminate the contract, but instead tried to
convince the club management to continue the employment relationship and only after the
club’s refusal he offered to settle the dispute amicably, which was also ignored by the club.
64. The coach further dismissed the club’s allegation that the only option the club had to make
up the absence of his Coach was to bring in a coach from the youth team of the club, i.e.
the new coach, as an “outright lie”. In this regard, the coach referred, notably, to the press
article dated 8 June 2020, wherein the new coach is quoted as having been “very surprised when he received an invitation from the Chairman Mr De and after careful consideration,
both sides reached an agreement as desired”.
65. The coach referred extensively to its previous submission and concludes that it was the club
which terminated the contract without just cause, through its “conclusive behaviour”.
66. The coach insisted in his claim for compensation and dismissed the club’s claim for
compensation as erroneous.
67. Finally, the coach amended his claim and added the month of May 2020, making a total
outstanding amount of USD 11,600 plus interest.
e. Club’s answer to the coach’s amended claim
68. In reply to the coach’s amended claim, the club explained that, in March 2020, Vietnam,
like the rest of the world, was hit hard by the covid-19 pandemic.
69. In this regard, the Vietnamese Prime Minister announced, in his Directive No. 16/CT-TTg
(March 2020), the implementation of emergency measures in prevention of pandemic
Covid-19, in particular the possibility for public and private companies to take all necessary
measures to limit the health and economic impact of the crisis (including salary reductions).
70. In addition to this, the Management Board of Vietnam Professional Football League
decided, in its Notice No. 37 /TB-BDH to suspend the league and authorize Club to proceed
to a 30% salary reduction for each employee as a support against Covid-19.
71. It was on this basis that the club took the decision to reduce of 30% the salaries of all its
employees (coaches, and both local and foreign players) for March and May 2020.
72. In the club’s view, “the fact that it is only today that mention is made of these so-called
"outstanding salaries is, once again, justified by the bad faith of the opposing party. Indeed,
Mister Lopez was perfectly aware of the exceptional measures taken by the government,
the league and the club concerning these salary cuts”. The club added that the coach never
indicated his intention not to comply with the measures taken, whereas he has not provided
evidence that he put the club in default regarding outstanding salaries.
73. With respect to the salary for the month of May 2020, the club held that in fact it had
decided to pay his staff in full for this month, even though the league remained suspended,
and that the coach did receive this salary.
f. Coach’s final comments
74. In his final comments, the coach insisted in the fact that the documents provided by the
club that allegedly serve as the basis for reduction of the remuneration were never provided
to him and that he has never agreed to any reduction whatsoever. Besides, according to
the coach, the cub’s allegation that he was “informed of these measures by the club and
the league” and “was perfectly willing to make the effort given the situation” are groundless
and simply not true.
75. Without prejudice to the above, the coach acknowledges receipt of the salary for May 2020
in the amount of USD 6,000 and withdraws the corresponding request for relief. The coach
clarified, tor the avoidance of doubt, that the other requests remain the same as in his initial
reply.
76. Finally, the coach informed the FIFA administration that, following the termination of the
contract with the club, he remained unemployed.
III. CONSIDERATIONS OF THE SINGLE JUDGE OF THE PLAYER’S STATUS
COMMITTEE
a. Competence and applicable legal framework
77. 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, it took
note that the present matter was presented to FIFA on 3 July 2020 and 9 July 2020
respectively and submitted for decision on 26 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.
78. Subsequently, the Single Judge referred to art. 3 par. 1 of the Procedural Rules and observed
that in accordance with art. 23 par. 1 and 4 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 Vietnamese club.
79. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, it 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 claims were lodged on 3 July 2020 and 9 July 2020 respectively,
the June 2020 edition of said regulations (hereinafter: the Regulations) is applicable to the
matter at hand as to the substance.
b. Burden of proof
80. 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, the Single Judge stressed
the wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties.
c. Merits of the dispute
81. 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 considers pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
82. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that both parties accuse each other and hold each other
liable for the termination of their employment relationship, hence the two claims filed
almost simultaneously.
83. The Single Judge, therefore, established that his main task in the present matter is to
determine when the actual termination of the contract occurred, who terminated it, and
who is to be held liable for such termination, with all the consequences that potentially
arise from terminating a contract with or without just cause.
84. In this regard, having paid close attention to the parties’ respective allegations and
arguments as well as the evidence on file.
85. To briefly summarise the parties’ antagonistic positions, the coach alleges that the
club expressed its will to terminate the contract through conclusive behaviour, by holding
a meeting in his absence and discussing his dismissal, offering him an agreement to
mutually terminate the contract in a meeting held on 8 June 2020, and finally replacing him
with another coach.
86. The club, for its part, alleges that the coach was absent from training as from 8 June 2020
and that he thereafter never returned to the club, despite the club’s several summons. With
respect to the meeting held on 8 June 2020, the club alleges that it was the coach who
expressed his intention to terminate the contract. The club concludes that the coach
terminated the contract without just cause with his letter dated 9 June 2020, where he
expressed the view that the employment relationship had ceased.
87. The Single Judge, in this respect, noted that the parties’ respective allegations are not
supported by very strong evidence. Indeed, the coach relies heavily on press articles, which
point to the fact that he would have been dismissed by the club and replaced by a new
coach, as well as on a Whatsapp conversation with the club’s Sports Director. The club, for
its part, relies on its default notices dated, which point to the coach’s absence from training
for a few days only.
88. Furthermore, the Single Judge pointed out that the alleged recording of the meeting held
on 8 June 2020 is inconclusive as it is impossible to verify its authenticity, the date on which
the recording took place, or who is taking part in such meeting.
89. Having said this, the Single Judge concluded that the evidence at his disposal rather
supports the thesis that the club had lost interest in the coach’s services.
90. In particular, it remains uncontested that as of 8 June 2020, a new coach was hired by the
club and immediately started his duties.
91. Furthermore, the Single Judge held the view that the club’s default notices appear to have
been issued pro forma, without any real intention to allow the coach to return to the club.
92. Finally, the minutes of the meeting held on 8 June 2020 consist in an offer to settle the
matter, which the coach has not agreed to and which, in turn, led to the drafting of a
second version of minutes of the meeting. In the Single Judge’s opinion, the fact that several
drafts of the minutes of this meeting were issued indicates that the minutes do not reflect
the actual content of the meeting but rather that these were drafted with the intention to
find a resolution to the dispute, which did not occur.
93. In view of the above, there is no evidence that, contrary to the club’s allegations, during
the meeting held on 8 June 2020, the coach had expressed his intention to terminate the
contract. At best, the minutes of the meeting in question point towards a discussion as to
the settlement of the dispute, but not to the fact that one party or the other had officially
terminated the contract during this meeting.
94. In conclusion, the Single Judge held that, based on the elements on file, he could determine
that the club de facto terminated the contract with the appointment of a new coach to
replace the coach on 8 June 2020, and that nothing indicates that the club intended to
pursue the employment relationship beyond that date. In particular, the Single Judge
reiterated that the club’s default notices dated 9 and 10 June 2020 appeared to have been
issued pro forma, after the coach had been replaced with another coach.
95. With this established, the Single Judge referred to the jurisprudence of the Players’ Status
Committee, according to which only a breach or misconduct which is of a certain severity
justifies the termination of a contract without prior warning. 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
assure 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 always only be an ultima ratio.
96. With the aforementioned principle in mind, the Single Judge remarked that the club did
not invoke any valid reason as to why it proceeded to replace the coach in his functions as
of 8 June 2020, thereby terminating the contract. Indeed, the Single Judge noted that the
default notices dated 9 and 10 June 2020 invoking the coach’s absence since 8 June 2020
cannot be relied upon, since the coach’s absence was a direct consequence of his
replacement as a coach. In this regard, the coach explained the reasons for his absence by
exchange of emails with the club, and requested for a validation as to his employment
status with the club, to no avail.
97. In continuation, the Single Judge found that the only justification provided by the club as
to the coach’s dismissal was his alleged impulsive behaviour in his performance of his duties.
In this regard, the Single Judge could not find any evidence that such alleged behaviour had
been addressed between the parties before the club de facto terminated the contract.
Furthermore, the video provided by the club as Annexe 7 of its reply to the coach’s claim
cannot serve as conclusive evidence of the coach’s alleged behavioural problem.
98. In view of the above, the Single Judge concluded that there was no just cause for the club
to unilaterally terminate the employment relationship between the parties and that,
therefore, the club had breached the employment contract without just cause.
99. Having established that the club is to be held liable for the breach of the contract without
just cause, the Single Judge went on to analyse the consequences of such breach.
100. In this regard, the Single Judge first decided that, since it is established that the club
terminated the contract without just cause, this entails that the club’s claim for
compensation for breach of contract must be rejected.
101. With respect to the coach’s monetary claim, the Single Judge took note of the latter party’s
request for outstanding remuneration, namely the requests for the salaries of March and
April 2020 as well as 7 days of June 2020, plus interest.
102. With respect to these salaries, the club, for its part, held that that it had applied a 30%
reduction to the month of March 2020 in accordance with Vietnamese law and the directives
of the Vietnamese League following the Covid-19 outbreak.
103. With the aforementioned arguments of the club in mind, the Single Judge recalled that, in
light of the worldwide Covid-19 outbreak, FIFA issued a set of guidelines, the Covid-19
Football Regulatory Issues, which aim at providing appropriate guidance and
recommendations to member associations and their stakeholders, to both mitigate the consequences of disruptions caused by COVID-19 and ensure that any response is
harmonised in the common interest. Moreover, on 11 June 2020, FIFA issued an additional
document, the FIFA Covid-19 FAQ, which provides clarification about the most relevant
questions in connection with the regulatory consequences of the COVID-19 outbreak and
identifies solutions for new regulatory matters. Those two documents will hereinafter be
referred to as “the FIFA Covid-19 guidelines”.
104. In continuation, the Single Judge emphasised that the FIFA Covid-19 guidelines aim, in
particular, at tackling the situation regarding agreements which cannot be performed as the
parties originally anticipated. In this regard, the guidelines identify circumstances under
which a unilateral variation of the agreement may be justified. Precisely, the guidelines
mention the following:
“Unilateral decisions to vary agreements will only be recognised where they are made in
accordance with national law or are permissible within CBA structures or another collective
agreement mechanism.
Where:
a. clubs and employees cannot reach an agreement, and
b. national law does not address the situation or collective agreements with a players’ union
are not an option or not applicable,
Unilateral decisions to vary terms and conditions of contracts will only be recognised by
FIFA’s Dispute Resolution Chamber (DRC) or Players’ Status Committee (PSC) where they
were made in good faith, are reasonable and proportionate.
When assessing whether a decision is reasonable, the DRC or the PSC may consider, without
limitation:
a. whether the club had attempted to reach a mutual agreement with its employee(s);
b. the economic situation of the club;
c. the proportionality of any contract amendment;
d. the net income of the employee after contract amendment;
e. whether the decision applied to the entire squad or only specific employees.
Alternatively, all agreements between clubs and employees should be “suspended” during
any suspension of competitions (i.e. suspension of football activities), provided proper
insurance coverage is maintained, and adequate alternative income support arrangements
can be found for employees during the period in question”.
105. Having recalled the contents of the FIFA Covid-19 guidelines, the Single Judge determined
that these guidelines are applicable to the present matter, which concerns the unilateral
variation by the club of the contract concluded between the parties. Therefore, the Single
Judge analysed the justification behind the club’s unilateral variation of the contract while
bearing in mind the aforementioned guidelines.
106. In this context, the Single Judge first outlined that the club had not provided any evidence
that such decision was made in accordance with national law. In particular, the club did not
produce an excerpt of the relevant Vietnamese law to support its allegation.
107. Equally, there is no evidence that the unilateral variation was even discussed with the coach.
Consequently, the Single Judge concluded that the club did not make any good faith
attempt to find an agreement with the coach in respect of the relevant salary reduction,
which constitutes the first and primary criteria for the deciding body to consider the validity
of a salary reduction.
108. In view of the above, the Single Judge decided that the club could not validly proceed to a
unilateral variation of the contract, and consequently, the salary for March 2020 should have
been paid to the coach in full.
109. Furthermore, the Single Judge could not find any valid reason invoked as to the partial
payment of the coach’s salary for April 2020, and consequently, the said salary must also be
paid in full.
110. In conclusion, the Single Judge decided that, in accordance with the principle of pacta sunt
servanda, the club must pay the coach outstanding remuneration in the total of USD 4,200
plus 5% interest as follows:
o 5% interest p.a. on the amount of USD 1,800 as from 26 April 2020 until the date
of effective payment,
o 5% interest p.a. on the amount of USD 2,400 as from 26 May 2020 until the date
of effective payment.
111. Finally, with respect to the coach’s claim for outstanding remuneration regarding 7 days of
June 2020, the Single Judge held that, in accordance with his usual practice, and since the
contract was breached on 8 June 2020, the entire month of June 2020 shall be considered
in the calculation of compensation for breach of contract.
112. The aforementioned having been established, the Single Judge turned his attention to the
calculation of the compensation for breach of contract to be awarded to the coach in light
of the club’s breach of contract without just cause.
113. The Single Judge referred to the jurisprudence of the Players’ Status Committee, according
to which, in the absence of an agreement of the parties on the payment of compensation,
the amount of compensation shall be calculated with due consideration for the law of the
country concerned, the specificity of sport and further objective criteria, including, in
particular, the remuneration and other benefits due to the Claimant under the existing
contract and/or the new contract.
114. Applying the aforementioned criteria to the case at hand, Single Judge first of all took into
account the remuneration due to the coach in accordance with the contract as well as the
time remaining on the same contract, along with the professional situation of the Claimant
after the early termination occurred.
115. In this respect, the Single Judge pointed out that at the time of the termination of the
employment contract on 8 June 2020, the employment contract would run for another 17.5
months. Consequently, taking into account the financial terms of the contract, the Single
Judge concluded that the remaining value of the contract as from its early termination by
the coach until the regular expiry of the contract amounts to USD 105,000. Consequently,
such amount shall serve as the basis for the final determination of the amount of
compensation for breach of contract.
116. In continuation, the Single Judge remarked that, following the early termination of the
employment contract at the basis of the present dispute, the coach remained unemployed
and was, therefore, not able to mitigate his damages.
117. In conclusion, and having fully analysed the entire and specific circumstances of the present
matter, the Single Judge decided that the club shall pay the coach compensation for breach
of contract in the amount of USD 105,000, which the Single Judge considers as a reasonable
and justified amount as compensation. Furthermore, 5% interest per annum shall apply on
the aforesaid amount as from the date of the claim, i.e. 9 July 2020.
118. The Single Judge concluded his deliberations by establishing that any further claims of the
coach are rejected.
d. Costs
119. In continuation, 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 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.
120. However, in this respect, the Single Judge referred to art. 18 par. 1 i. of the Procedural Rules
according to which “For any claim or counter-claim lodged between 10 June 2020 and 31
December 2020 (both inclusive), no procedural costs shall be levied”.
121. Thus, considering that the present claim was lodged in the relevant period, no procedural
costs shall be awarded in this matter.
IV. DECISION OF THE SINGLE JUDGE OF THE PLAYERS' STATUS
COMMITTEE
1. The claim of the Claimant 1 / Respondent 2, Fabio Lopez, is partially accepted.
2. The Claimant 2 / Respondent 1, Thanh Hoa Football Club, has to pay to the Claimant 1 /
Respondent 2 the following amounts:
- USD 4,200 as outstanding remuneration plus 5% interest p.a. as follows:
o 5% interest p.a. on the amount of USD 1,800 as from 26 April 2020 until the
date of effective payment,
o 5% interest p.a. on the amount of USD 2,400 as from 26 May 2020 until the
date of effective payment,
- USD 105,000 as compensation for breach of contract plus 5% interest p.a. as from 9 July
2020 until the date of effective payment.
3. Any further claims of the Claimant 1 / Respondent 2 are rejected.
4. The claim of the Claimant 2 / Respondent 1 is rejected.
5. The Claimant 1 / Respondent 2 is directed to immediately and directly inform the Claimant 2 /
Respondent 1 of the relevant bank account to which the Claimant 2 / Respondent 1 must pay the
due amount.
6. The Claimant 2 / Respondent 1 shall provide evidence of payment of the due amount in
accordance with this decision to psdfifa@fifa.org, duly translated, if applicable, into one of the
official FIFA languages (English, French, German, Spanish).
7. In the event that the amount due, plus interest as established above, is not paid by the Claimant
2 / Respondent 1 within 30 days as from the notification by the Claimant 1 / Repsondent 2 of
the relevant bank details to the Claimant 2 / Respondent 1, the following consequences shall arise:
1. In the event that the amount due in accordance with this decision is not paid within the
granted deadline, the present matter shall be submitted, upon request, to the FIFA
Disciplinary Committee.
8. This decision is rendered without costs.
For the Players' Status Committee:
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).
CONTACT INFORMATION:
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | psdfifa@fifa.org | T: +41 (0)43 222 7777