F.I.F.A. – Players’ Status Committee / Commissione per lo Status dei Calciatori – coach disputes / controversie allenatori (2020-2021) – fifa.com – atto non ufficiale – Decision28 July 2020
Decision of the
Single Judge of the Players' Status Committee
passed on 28 July 2020,
regarding an employment-related dispute concerning the coach Miguel Kenny Coley
BY:
Stefano La Porta (Italy), Single Judge of the PSC
CLAIMANT / COUNTER-RESPONDENT:
MIGUEL KENNY COLEY, Jamaica
Represented by Mr Hrvoje Raic
RESPONDENT / COUNTER-CLAIMANT:
ESTEGHLAL FC, IR Iran
I. FACTS OF THE CASE
1. On 1 May 2018, the Jamaican coach, Miguel Kenny Coley (hereinafter: Claimant) and the Iranian
club, Esteghlal FC (hereinafter: Respondent) signed an employment contract, valid as from 1 June
2018 until 1 June 2020.
2. Art. 2 of the employment contract stated as follows:
“2.1 The club whose members are involved in the highest level of football competition in Iran by
the name of “premier League” engages in the services of Mr. MIGUEL KENNY COLEY for two
football seasons: 2018-2019 and 2019-2020. Esteghlal agree to hire the Football Assistant Coach
to assist the Head Coach of the First Football Team of Esteghlal Tehram Football Club in any
competition as informed by Esteghlal for a duration commencing 01. June 2018 until 01. June
2020”.
3. Art. 7 of the employment contract contains the financial entitlements of the Claimant:
“7.1. Gross amount of contract for football season 2018-2019 will be 100,000 USD as follows:
7.1.1. Net amount 84,000 USD of the contract belongs to the assistant Coach during this contract
period. The amount of agreed and payable the TAX deductible will be paid by the club and the
receipt will be delivered to the assistant coach. The amount of 16,000 USD will be kept by the club
as the provision for due TAXES at any rate, the amount of the net payment to the assistant coach
does not exceed 84,000 USD
7.1.2. Net amount 7,000 USD of the contract as advanced payment after signing the contract and
registering at league organization will be paid to the assistant coach-
7.1.3. Esteghlal agreed to transfer the USD 77,000 in monthly instalments as follows:
7.1.3.1. Beginning 01. June 2018 to 01. June 2019: 6,416 USD per month
7.2. Gross amount of contract for football season 2018-2019 will be USD 120,000 as follows:
7.2.2. Net amount 100,000 USD of the contract belongs to the assistant Coach during this contract
period. The amount of agreed and payable the TAX deductible will be paid by the club and the
receipt will be delivered to the assistant coach. The amount of 20,000 USD will be kept by the club
as the provision for due TAXES at any rate, the amount of the net payment to the assistant coach
does not exceed 100,000 USD
7.2.3. Esteghlal agrees to transfer the 90,000 USD in monthly instalments as follows:
7.2.3.1. Beginning 01. June 2018 to 01. June 2019: 7,500 USD per month
7.2.4. The monthly instalments (1.a.) will not be made later than the 5th of the month.
7.2.5. The manner of payment will be transferred to the assistant coach as Cash”
4. Art. 8 of the employment provided for the following further conditions:
“8.1. Failure to pay salary and/or bonuses for more than 60 days of contract and therefore the
contract can be terminated unilaterally. Is such circumstances occur the club must pay the
remainder of the contract plus any outstanding salary and/or bonuses owed.
8.2. The contract between Esteghlal Football Club and Mr. MIGUEL KENNY COLEY is in total
agreement with all FIFA (Fédération Internationale de Football Association) and AFC (Asian Football
Confederation) rules and regulations including payment of salary and bonus”
5. On 20 November 2019, the Claimant lodged a claim for outstanding remuneration and
compensation for breach of contract against the Respondent in front of FIFA, requesting the total
amount of USD 160,984.8, plus 5% interest as from the due dates, corresponding to:
USD 49,609.8 “gross” as outstanding remuneration, as follows:
- USD 8,661.6 on 5 March 2019;
- USD 8,661.6 on 5 April 2019;
- USD 8,661.6 on 5 May 2019;
- USD 10,125 on 5 June 2019;
- USD 13,500 on 1 June 2019.
USD 111,375 “gross” as compensation for breach of contract corresponding to the salaries of
the Claimant as from 1 July 2019 until 1 June 2020.
Legal expenses and procedural costs paid by the Respondent.
6. The Claimant held that by means of a letter dated 1 May 2019, the Respondent banned him from
performing his duties, by not allowing him to attend any training sessions and matches until
“permission of the new head coach”. The Claimant underlined that the Respondent hired a new
assistant coach to replace him.
7. The Claimant further claimed that he had sent several default notices on 3 May, 9 May and 29 May
2019 requesting his reintegration in the team as well as the payment of his outstanding
remuneration, which kept accumulating since March 2019. The Respondent replied on 23 May 2019
and argued that his exclusion was not to be understood as a de facto termination of the employment
contract and that his remuneration had been paid. On 2 June 2019, the Respondent again responded
to the Claimant, stating that the latter was not allowed to leave the country, that he should return
to Iran and that any outstanding amounts would be paid to him in person upon his return.
8. On 6 June 2019, in view of his suspension and the non-payment of his salaries from March to June
2019 as well as the advance payment for the 2019/2020 season, the Claimant terminated the
contract, emphasising that the entire club’s staff was on holidays, the last match of the season having
been played on 20 May 2019 and the first one of the new season being scheduled for 23 August
2019.
9. The Claimant pointed out that, in its reply to the notice of termination dated 11 June 2019, the
Respondent denied the existence of a just cause, while confirming that it had outstanding debts
towards the Claimant.
10. In its reply to the Claimant’s claim, the Respondent stated that his replacement was only temporary.
The Respondent also claimed that the Claimant had left Iran without authorisation on 27 May 2019,
and even though it was the end of the season he did not have permission to do so, and as an assistant
coach he should be helping the head coach with the preparation of the new season.
11. The Respondent further said that in its replies to the Claimant’s default notices, it never denied owing
him some remuneration, but due to banking restrictions and to the actual wording of the
employment contract, i.e. clause 7.2.5., the Claimant was supposed to return to Iran to receive his
remuneration in cash. Thus, the Respondent deemed that the Claimant did not have a just cause to
terminate the employment contract on 6 June 2019 and pointed out that he allegedly signed a
contract with another club, Baniyas FC, right after the termination.
12. The Respondent lodged an unspecified counterclaim against the Claimant together with its reply of
25 January 2020. Alternatively, in case the Single Judge of the Players’ Status Committee would
decide that the Claimant had a just cause to terminate the contact, it requested that the amounts
due to the Claimant as outstanding remuneration and compensation be reduced, considering that
the employment contract clearly stipulates the gross and net amounts payable to the Claimant and
that the club will bear internally all taxes due, and also considering that the amount of compensation
should be mitigated in light of the Claimant’s new contract with Baniyas FC.
13. In its reaction to the Respondent’s counterclaim, the Claimant rejected the Respondent’s accusations
and pointed out that it was clear that he had been banned from performing his obligations from 29
April 2019 to 14 May 2019, which can be seen in the match report of the AFC Champions League
of 6 May 2019 against Al Duhail SC.
14. The Claimant also denied having been absent without authorisation as from 27 May 2019, as it is a
“common practice in all football clubs […] that vacation for all players and staff starts immediately
after season end which was exactly the case here in as well”.
15. He also pointed out that he was unemployed from 6 to 15 June 2019, when he signed a new
employment contract with Baniyas FC, valid as from 15 June 2019 until 15 June 2020.
16. The Claimant insisted that the Respondent, through its acts, forced him to terminate the contract
and that its counterclaim is nothing but a “poor construction in an attempt to justify the club’s
behaviour”.
17. In particular, the Claimant stated that on 9 May 2019 he again sent the Respondent a default notice
granting the latter 15 days to remedy the default and that still the Respondent did not pay him the
outstanding salaries while he was present at the club, until he left for holidays on 27 May 2020.
18. In reaction to the Claimant’s several reminders, the Respondent only requested him via a letter dated
2 June 2019 to immediately return to the Respondent and undertake his employment duties,
including “working with the sporting director to prepare all aspects of the 2019-20 pre-season and
to identify players to sign when the transfer window reopens in July”, which the Claimant claimed
was not his task. In this respect, the Claimant emphasised that a party in default cannot request the
execution of the obligations of the other party until it remedies its own defaults.
19. In essence, the Claimant deemed that the Respondent breached the employment contract by failing
to pay him his salaries from March to June 2019 as well as the advance payment for the 2019/2020
season, and to provide him with the relevant “tax receipts showcasing that the club had duly paid
relevant taxes out of the assistant coach’s gross income”, which is an obligation of the Respondent
as per the contract. Therefore, the Claimant on his claim for the gross amounts, in order to avoid
that he later on must pay taxes over these payments in Iran.
20. Based on the foregoing, the coach deems that the Respondent’s counterclaim should be entirely
rejected.
21. On 15 June 2019, the coach signed a new employment contract with the Emirati club, Banyias FC,
valid as from the date of signature until 15 June 2020, for 12 monthly salaries of USD 7,083.
II. CONSIDERATIONS OF THE SINGLE JUDGE OF THE PLAYERS' STATUS
COMMITTEE
1. First of all, the Single Judge of the Players’ Status Committee (hereinafter: Single Judge) analysed
whether he was competent to deal with the case at hand. In this respect, he took note that the
present matter was submitted to FIFA on 20 November 2019, while it was decided on 28 July 2020.
Taking into account the wording of art. 21 of the June 2020 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 referred to art. 3 par. 1 of the Procedural Rules and confirmed that,
in accordance with art. 23 par. 1 and 4 in conjunction with art. 22 lit. c) of the Regulations on the
Status and Transfer of Players (hereinafter: the Regulations; edition June 2020), he is competent to
decide on the present litigation, which concerns an employment-related dispute with an international
dimension between a Jamaican coach and an Iranian club.
3. The Single Judge went on to analyse which edition of the Regulations should be applicable as to the
substance of the matter. In this respect, the Single Judge confirmed that, in accordance with art. 26
par. 1 and 2 of the Regulations (edition June 2020) and considering that the present matter was
submitted to FIFA on 20 November 2019, the October 2019 edition of said Regulations is applicable
to the present matter as to the substance.
4. The competence of the Single Judge and the applicable regulations having been established, the
Single Judge entered into the substance of the matter. In doing so, it started by acknowledging the
facts of the case as well as the documents contained in the file. The Single Judge, however,
emphasised that in the following considerations he will refer only to the facts, arguments and
documentary evidence which it considered pertinent for the assessment of the matter at hand.
5. The Single Judge started its analysis of the merits of the present matter by recalling that the parties
had concluded an employment contract valid as from 1 June 2018 until 2020, according to which
the Claimant was entitled to the following remuneration:
“7.1. Gross amount of contract for football season 2018-2019 will be 100,000 USD as follows:
7.1.1. Net amount 84,000 USD of the contract belongs to the assistant Coach during this contract
period. The amount of agreed and payable the TAX deductible will be paid by the club and the
receipt will be delivered to the assistant coach. The amount of 16,000 USD will be kept by the club as the provision for due TAXES at any rate, the amount of the net payment to the assistant coach
does not exceed 84,000 USD
7.1.2. Net amount 7,000 USD of the contract as advanced payment after signing the contract and
registering at league organization will be paid to the assistant coach-
7.1.3. Esteghlal agreed to transfer the USD 77,000 in monthly instalments as follows:
7.1.3.1. Beginning 01. June 2018 to 01. June 2019: 6,416 USD per month
7.2. Gross amount of contract for football season 2018-2019 will be USD 120,000 as follows:
7.2.2. Net amount 100,000 USD of the contract belongs to the assistant Coach during this contract
period. The amount of agreed and payable the TAX deductible will be paid by the club and the
receipt will be delivered to the assistant coach. The amount of 20,000 USD will be kept by the club
as the provision for due TAXES at any rate, the amount of the net payment to the assistant coach
does not exceed 100,000 USD
7.2.3. Esteghlal agrees to transfer the 90,000 USD in monthly instalments as follows:
7.2.3.1. Beginning 01. June 2018 to 01. June 2019: 7,500 USD per month
7.2.4. The monthly instalments (1.a.) will not be made later than the 5th of the month.
7.2.5. The manner of payment will be transferred to the assistant coach as Cash”
6. The dispute between the parties revolves around the termination of the contract by the Claimant on
6 June 2019, after the latter sent several default notices in May 2019 to the Respondent with respect
to his outstanding remuneration, which had allegedly accumulated since March 2019, and wherein
he also requested his reintegration in the team. In this regard, the Claimant argued that it terminated
the contract with just cause due to overdue payables as well as the fact that he had been banned
from participating in the team’s training, in light of the Respondent’s decision to replace him as an
assistant coach.
7. The Claimant requested the following:
USD 49,609.8 “gross” as outstanding remuneration, as follows:
- USD 8,661.6 on 5 March 2019;
- USD 8,661.6 on 5 April 2019;
- USD 8,661.6 on 5 May 2019;
- USD 10,125 on 5 June 2019;
- USD 13,500 on 1 June 2019.
USD 111,375 “gross” as compensation for breach of contract corresponding to the salaries of
the Claimant as from 1 July 2019 until 1 June 2020.
Legal expenses and procedural costs paid by the Respondent.
8. The Respondent, on the other hand, rejected the Claimant’s claim, arguing that the Claimant’s
replacement was only temporary and that the Claimant had left Iran without authorisation on 27
May 2019.
9. The Respondent further held that it never denied owing the Claimant some remuneration, but due
to banking restrictions and in accordance with the contents of clause 7.2.5. of the employment contract, the Claimant was supposed to return to Iran to receive his remuneration in cash. Thus, the
Respondent deemed that the Claimant did not have a just cause to terminate the employment
contract on 6 June 2019 and pointed out that he allegedly signed a contract with another club,
Baniyas FC, right after the termination.
10. The Respondent lodged an unspecified counterclaim against the Claimant together with its reply of
25 January 2020. Alternatively, in case the Single Judge of the Players’ Status Committee would
decide that the Claimant had a just cause to terminate the contact, it requested that the amounts
due to the Claimant as outstanding remuneration and compensation be reduced, considering that
the employment contract clearly stipulates the gross and net amounts payable to the Claimant and
that the club will bear internally all taxes due, and also considering that the amount of compensation
should be mitigated in light of the Claimant’s new contract with Baniyas FC.
11. Having recalled the parties’ antagonistic positions in the present matter, the Single Judge of the
PSC acknowledged that it had to examine whether the Claimant had just cause to terminate the
employment contract on 6 June 2019 and to decide on the consequences thereof.
12. It transpires from the facts of this matter that the Claimant terminated the employment contract due
to outstanding remuneration since March 2019 as well as the fact that he had been first excluded
from the team trainings and then replaced as an assistant coach.
13. With respect to the issue of outstanding remuneration, the Single Judge noted that the Respondent
did not contest owing remuneration to the Claimant, but that it argued that the Claimant should
have returned to Iran in order to receive such remuneration in cash in light of the banking restrictions
in place in Iran.
14. Having given due consideration to the Respondent’s line of argument with respect to the claimed
outstanding salaries, the Single Judge held that the Respondent’s demand that the Claimant return
to Iran to receive his salaries in cash cannot be sustained. Indeed, the Claimant had put the
Respondent in default in writing during the month of May 2019 on three separate occasions, at a
time when the Claimant was still in Iran. Indeed, it remained undisputed that the Claimant was in
Iran until 27 May 2019. The Respondent was given the chance to remedy its default prior to the
Claimant leaving the country, however it did not do so. By the time the Claimant left Iran, his salaries
for the months of March, April and May 2019 remained outstanding, which is to be considered as a
substantial amount of remuneration.
15. Regarding the Claimant’s accusations towards the Respondent, i.e. the fact that he was excluded
from the team trainings then subsequently replaced, the Single Judge noted that the Respondent did
admit having replaced the Claimant; allegedly, such replacement was only temporary. The Single
Judge noted, however, that the Respondent did not adduce any evidence that such replacement was
only temporary, nor does it indicate the duration of such alleged temporary replacement.
Consequently, such argument must be rejected (cf. art. 12 par. 3 of the Procedural Rules).
16. In continuation, paying attention to the Respondent’s allegation that the Claimant was absent
without authorization, the Single Judge was eager to emphasise that such allegation is not in line
with the evidence on file, which shows that the last match of the 2018/2019 season was played on
20 May 2019 and the first one of the 2019/2020 season was scheduled for 23 August 2019. Thus, the Single Judge held that this fact supports the Claimant’s allegation that the entire club staff was
on holidays at the time the Claimant left the country.
17. All in all, the Single Judge deemed that the Respondent’s request for the Claimant’s immediate return
in order to start the preparations for the next season and receive his salaries in cash and in person
cannot be considered reasonable.
18. In addition, the Single Judge recalled that, at the time, the Respondent was in default of its financial
obligations towards the Claimant in a substantial way and was, as such, not in a position to demand
that the Claimant performs his own contractual obligations.
19. In conclusion and in light of the aforementioned considerations, the Single Judge found that the
Claimant had terminated the employment contract on 6 June 2019 with just cause.
20. Consequently, the Respondent is to be held liable for the early termination of the employment
contact without just cause.
21. Bearing in mind the previous considerations, the Single Judge went on to deal with the consequences
of the early termination of the employment contract with just cause by the Claimant. In this regard,
the Single Judge first of all established that the Respondent’s counter-claim must be rejected.
22. Furthermore, the Single Judge of the PSC decided that, in accordance with its well-established
jurisprudence in such matters, the Claimant is entitled to receive from the Respondent compensation
for breach of contract.
23. Prior to determining the amount of compensation for breach of contract, the Single Judge of the
PSC recalled that the Respondent had outstanding remuneration towards the Claimant. It remained
uncontested that, at the time of the unilateral termination by the Claimant, which occurred on 6
June 2019, the Respondent was in default of payment of the salaries of March, April, May and June
2019. Consequently and in accordance with the legal principle of pacta sunt servanda, the
Respondent must pay these salaries to the Claimant.
24. With respect to the Claimant’s claim to receive the gross amounts, though, the Single Judge followed
the Respondent’s argument that the employment contract clearly indicates which is the net and
which is the gross salary, while it also provides that the Respondent shall be responsible for the
payment of all relevant taxes. Therefore, the Single Judge decided that the Claimant is entitled to
receive the net amounts as established in the employment contract.
25. In conclusion, the Single Judge decided that the Respondent must pay the Claimant the total amount
of USD 26,748 net, representing 3 x USD 6,416 for the months of March, April and May 2019, as
well as USD 7,500 for June 2019. Furthermore and as requested by the Claimant, 5% interest per
annum shall apply on the outstanding remuneration as from the day following the respective due
dates, as follows:
a. On USD 6,416 net as from 6 March 2019 until the date of effective payment;
b. On USD 6,416 net as from 6 April 2019 until the date of effective payment;
c. On USD 6,416 net as from 6 May 2019 until the date of effective payment;
d. On USD 7,500 net as from 6 June 2019 until the date of effective payment.
26. With this established, the Single Judge of the PSC carried on with the assessment of the
compensation for breach of contract. In principle, the amount of compensation shall be calculated,
in particular and unless otherwise provided for in the contract at the basis of the dispute, 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.
27. In application of the relevant provision, the Single Judge of the PSC held that it first of all had to
clarify whether the pertinent employment contract contained any clause, by means of which the
parties had beforehand agreed upon a compensation payable by the contractual parties in the event
of breach of contract. The Single Judge of the PSC duly acknowledged that the employment contract
did contain a compensation clause, specifically art. 8.1, which established the Claimant’s right to
receive compensation in case he would terminate the contract with just cause. The Single Judge
noted, however, that the employment contract did not refer to any right of the Respondent to receive
compensation in case of termination with just cause. Therefore and with reference to his
longstanding jurisprudence according to which one-side compensation clauses may not be taken into
account, the Single Judge decided that art. 8.1 of the employment contract cannot be taken into
account in the assessment of the compensation for breach of contract.
28. In view of the above, the Single Judge of the PSC established that he shall proceed to the calculation
of the compensation for breach of contract in accordance with the other criteria described above.
29. In so doing, the Single Judge of the PSC first of all took into account the remuneration due to the
Claimant in accordance with the employment contract as well as the time remaining on the same
contract, along with the professional situation of the Claimant after the early termination occurred.
In this respect, the Single Judge of the PSC pointed out that at the time of the termination of the
employment contract on 6 June 2019, the employment contract would run for another eleven
months. Consequently, taking into account the financial terms of the employment contract, the
Single Judge of the PSC concluded that the remaining value of the contract as from its early
termination by the Claimant until the regular expiry of the contract amounts to USD 92,500 net, i.e
11 x USD 7,500 plus the advance payment of USD 10,000 due for the 2019/2020 season.
Consequently, such amount shall serve as the basis for the final determination of the amount of
compensation for breach of contract.
30. In continuation, the Single Judge of the PSC remarked that following the early termination of the
employment contract at the basis of the present dispute the Claimant found new employment with
the club Banyias FC as of 15 June 2019. Indeed, the Claimant concluded a contract valid for 11.5
months with the said club, according to which the Claimant earned a monthly salary of USD 7,083.
31. In conclusion, and having fully analysed the entire and specific circumstances of the present matter,
the Single Judge of the PSC decided that the Respondent shall pay the Claimant compensation for
breach of contract in the amount of USD 81,454.5, which the Single Judge of the PSC 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. 20 November 2019.
32. The Single Judge of the PSC concluded its deliberations in the present matter by establishing that
any further claim lodged by the Claimant is rejected.
DECISION OF THE SINGLE JUDGE OF THE PLAYERS' STATUS
COMMITTEE
1. The claim of the Claimant/Counter-Respondent, Miguel Kenny Coley, is partially accepted.
2. The counterclaim of the Respondent/Counter-Claimant, Esteghlal FC, is rejected.
3. The Respondent/Counter-Claimant has to pay to the Claimant/Counter-Respondent within 30
days as from the date of notification of this decision outstanding remuneration in the amount of USD
26,748 net plus interest of 5% p.a. as follows:
a. On USD 6,416 net as from 6 March 2019 until the date of effective payment;
b. On USD 6,416 net as from 6 April 2019 until the date of effective payment;
c. On USD 6,416 net as from 6 May 2019 until the date of effective payment;
d. On USD 7,500 net as from 6 June 2019 until the date of effective payment.
4. The Respondent/Counter-Claimant has to pay to the Claimant/Counter-Respondent within 30
days as from the date of notification of this decision compensation in the amount of USD 11,045.50
net plus interest of 5% p.a. as from 20 November 2019 until the date of effective payment.
5. Any further claim of the Claimant/Counter-Respondent is rejected.
6. In the event that the amounts due to the Claimant/Counter-Respondent in accordance with the
above-mentioned numbers 3. and 4. plus interest are not paid by the Respondent/Counter-
Claimant within the stated time limit, the present matter shall be submitted, upon request, to
the FIFA Disciplinary Committee for consideration and a formal decision.
7. The Claimant/Counter-Respondent is directed to inform the Respondent/Counter-Claimant
immediately and directly of the account number to which the remittances are to be made and
to notify the Single Judge of the Players’ Status Committee of every payment received.
8. The final costs of the proceedings in the amount of CHF 3,000 are to be paid by the
Respondent/Counter-Claimant to FIFA (cf. note relating to the payment of the procedural costs
below).
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