F.I.F.A. – Players’ Status Committee / Commissione per lo Status dei Calciatori – coach disputes / controversie allenatori (2020-2021) – fifa.com – atto non ufficiale – Decision20 July 2020

Decision of the

Single Judge of the Players' Status Committee

passed via videoconference, on 20 July 2020,

regarding an employment-related dispute concerning the coach Marco Antonio Larriba Valdivia

BY:

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

CLAIMANT:

MARCO ANTONIO LARRIBA VALDIVIA, Spain

Represented by Mr. Santiago San Torcuato

RESPONDENT:

SANTA TECLA FC, El Salvador

Represented by Mr. Juan Ramon Molina

I. FACTS OF THE CASE

1. On 20 September 2019, the Spanish coach, Marco Antonio Larriba Valdivia (hereinafter: “the Claimant” or “the coach”) and the Salvadoran club, Santa Tecla FC (hereinafter: “the Respondent” or “the club”) signed an employment contract (hereinafter: “the contract”) valid as from 26 September 2019 until the “last game of the club in the “torneo apertura 2020/2021”.

2. Pursuant to clauses III and IV of the contract, the coach was entitled to the following remuneration:

- USD 1,000 “net” per month for the 2019/2020 season, “payable on the last work day of each month”;

- USD 1,500 “net” per month for the 2020/2021 season, “payable on the last work day of each month”.

- 3 return flight tickets to “Ciudad de Chihuahua, Mexico”

3. Clause IX of the contract stipulates: “Parties are obliged to fulfil the norms of the Salvadorian Football Federation and in case of disputes related to the contractual stability and sport financial interests, they will submit their dispute to the Arbitral Tribunal in first instance … on a second instance the parties could appeal at FIFA and as a last instance they could present their dispute in front of CAS as ordinary procedures renouncing in this act to another forum which could correspond to any present or future cause”. Said clause in Spanish reads: “Las partes están obligadas a cumplir con toda la normativa de la Federación Salvadoreña de Futbol y en caso de conflicto relativos a la estabilidad contractual e intereses económicos deportivos, se sujetaran en primera instancia a la autoridad Federativa, quien a través del Tribunal de Arbitraje, conocerá de los mismos conforme al Reglamento de dicho Tribunal, en segunda instancia se podrá recurrir al Comité de FIFA y en última instancia mediante procesos ordinarios a la jurisdicción del TAS /CAS con sede en Lausana, Suiza renunciando en este acto a cual fuero territorial, que pudiese corresponderles por cualquier causa presente o futura”.

4. On 3 January 2020, the club released a public statement (in its twitter account) announcing that it had decided to unilaterally terminate the employment relationship with the coach. The original text in Spanish reads: “Por medio de la presente, anunciamos que la junta directiva de la institución ha decidido cesar de sus cargos a los profesores Marco Sánchez Yacuta y Marco Larriba. Agradecemos a ambos por el trabajo hecho en el club, y les deseamos lo mejor en sus futuros proyectos”.

5. On 19 February 2020, the Claimant lodged the present claim in front of the FIFA deciding bodies against the Respondent for unilateral termination of the contract without just cause, requesting the following:

- USD 18,327.23 as compensation for breach of contract plus 5% interest p.a. as from 3 January 2020 (i.e. date of termination) until the date of effective payment and

- Legal and procedural costs.

6. According to the Claimant, he had always complied with his contractual obligations. In addition, the Claimant maintained that he had to pay his own return flight to Mexico in the amount of USD 327.23.

7. With regard to the compensation for breach of contract, the Claimant held that the residual value of the contract amounted to the following: “the sum of USD 18,000, corresponding to the 12 remaining months (January until December 2020), on the basis that the monthly salary of the coach would be USD 1,500 as from the beginning of the Torneo de clausura 2019/2020, until the expiry date of the original contract, that is 31 December 2020”. Therefore, the total amount of compensation claimed by the Claimant equals to USD 18,327.23.

8. The club in its reply contested FIFA´s competence, in favour of the national tribunal at El Salvador Football Federation (FESFUT). In this respect, it referred to clause IX of the contract and held that in accordance with said contractual clause the local tribunal, i.e. “Tribunal Arbitral de la Federación Salvadoreña de Fútbol” is the competent body to decide the present dispute applying its national regulations. Moreover, the Respondent underlined that in accordance with clause IX of the contract the FIFA deciding bodies act as revising bodies of the aforementioned local tribunal.

9. The club held having submitted to FIFA the Regulations of the national arbitral tribunal, however no documentation explaining the composition and functioning of such deciding body was provided.

10. In its reply as to the substance, the Respondent argued that the coach did not present himself at the club to start offering his services, in spite of being in the country, and therefore the club had to replace him by a new coach.

11. Moreover, the Respondent claimed having issued on behalf of the coach a cheque in the amount of USD 3,000, as compensation in accordance with the local law, which the coach was requested to pick up at the club. Furthermore, the club claims that even if the coach presents proof of payment of the amount of USD 327.23, it should not be responsible for this amount, since the coach left the country without authorisation.

12. Moreover, the club enclosed a document from the FESFUT, according to which the tournament of the 2019/2020 season is suspended for at least 30 days, due to Covid-19. The document further stipulates that during the suspension 50% of the remuneration will be paid and at the end of the 2019/2020 season 100% of the remuneration will be paid.

13. Furthermore, the Respondent claimed that the public statement allegedly issued by the club, dismissing the coach, could very well have been forged. Thus, the Respondent claimed that the coach’s claim, if admissible, should be entirely rejected.

II. CONSIDERATIONS OF THE PLAYERS´ STATUS COMMITTEE

1. First of all, the Single Judge of the Player’s Status Committee (hereinafter: “the Single Judge”) analysed whether he was competent to deal with the matter at hand. In this respect, he took note that the present matter was submitted to FIFA on 19 February 2020. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition November 2019; hereinafter: “the Procedural Rules”) are applicable to the matter at hand (cf. art. 21 of the Procedural Rules).

2. Subsequently, the Single Judge analysed which regulations should be applicable as to the substance of the matter. In this respect, the Single Judge concluded that in accordance with art. 26 par. 1 and par. 2 of the June 2020 edition of the Regulations on the Status and Transfer of Players, and considering that the present claim was lodged on 19 February 2020, the January 2020 edition of said regulations (hereinafter: ”the Regulations”) is applicable to the matter at hand as to the substance.

3. Furthermore, the Single Judge confirmed that, based on art. 3 par. 1 and 2 of the Procedural Rules in connection with art. 23 par. 1 and 4 as well as art. 22 lit. c) of the Regulations, he was competent to deal with the present matter since it concerns a dispute between a Spanish coach and a Salvadoran club.

4. At this point, the Single Judge noted that the Respondent first objected to the admissibility of the present claim, alleging that according to clause IX of the contract the local tribunal, i.e. “Tribunal Arbitral de la Federación Salvadoreña de Fútbol” is the competent body to decide the present dispute applying its national regulations.

5. Consequently, the Single Judge considered that he should, first, analyse clause IX of the contract to determine if said clause clearly stipulated the exclusive jurisdiction of one specific deciding body under the auspices of the Salvadoran Football Federation (FESFUT) to deal with the present dispute.

6. In this respect, the Single Judge pointed out that clause IX of the contract referred not only to the National Arbitral Tribunal but also to the FIFA deciding bodies and CAS (ordinary procedures). As a consequence, the Single Judge held that said clause cannot be considered exclusive.

7. In continuation, the Single Judge observed that during the investigation of the present matter the Respondent only presented allegations related to the national arbitral tribunal referring to art. 1 of the domestic regulations which in turn refers to art. 58 of the FESFUT´s statutes.

8. Therefore, the Single Judge underlined that the Respondent failed to present enough documentary evidence to prove that the National Arbitral Tribunal was an independent tribunal guaranteeing fair proceedings [cf. art. 22 c) of the Regulations in line with the parameters established in the FIFA Circular letter 1010].

9. In this context, the Single Judge highlighted the content of art. 12 par. 3 of the Regulations which states “Any party claiming a right on the basis of an alleged fact shall carry the burden of proof. During the proceedings, the parties shall submit all relevant facts and evidence of which they are aware at that time, or of which they should have been aware if they had exercised due care”.

10. In light of the aforementioned, the Single Judge underlined that taking into account that the Respondent did not present enough documentary evidence to prove that said tribunal was independent and guaranteeing fair proceedings; that the Claimant contested the independence of the local tribunal and that the clause IX made reference to the jurisdiction of FIFA and CAS, did not have another alternative than conclude that he was competent to enter into the substance of the present matter in accordance with art. 3 par. 1 of the Procedural Rules in combination with art. 23 par. 1 and par. 3 and art. 22 c) of the Regulations.

11. The competence of the Single Judge and the applicable regulations having been established, the Single Judge entered into the substance of the matter. 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.

12. The Single Judge took note that on 20 September 2019 the Claimant and the Respondent concluded the contract valid from 26 September 2019 until the last game of the club in the “torneo apertura 2020/2021”.

13. The Single Judge acknowledged that on 3 January 2020, the Respondent announced in its social media that its management board decided to terminate the contract with the Claimant, as well as with Mr Marco Sanchez Yacuta.

14. In this respect, the Single Judge took note that the Respondent argued that the relevant public statement in the social media could have been forged. However, the Single Judge added that the Respondent did not present any evidence or further explanations to substantiate its allegation.

15. In continuation, the Single Judge further noted that the Respondent indeed stated having dismissed the coach alleging that the latter did not perform his activities in spite of being in the country. Moreover, the Single Judge acknowledged that the Respondent argued having replaced the Claimant for a new assistant coach.

16. At this stage, the Single Judge pointed out that the Respondent did not present any evidence related to the alleged lack of performance by the Claimant.

17. In continuation, the Single Judge observed that the Claimant did not receive any explanation nor written notice from the Respondent regarding the termination of his contract. In this regard, the Single Judge pointed out that from the Respondent´s behaviour, it was clear that it was no longer interested in the services of the Claimant.

18. Furthermore, the Single Judge underlined that the fact that the Claimant did not render his services at the beginning of the “Torneo Clausura 2020” was the only reason invoked by the Respondent to terminate the employment relationship.

19. In this context, the Single Judge was keen to emphasise that, as a general rule, termination of an employment contract should be always “ultima ratio” meaning an extreme measure to apply only when it does not exist other possibility to continue the employment relationship.

20. Besides, the Single Judge stated that when there is a misunderstanding or a conflict between a club and a coach it is important first to exhaust all the possibilities by means of negotiation in order to find a common understanding.

21. Moreover, the Single Judge added that when an employee breaches any contractual obligation, the employer first should apply corrective measures such as a warning or a reprimand and only after if those measures did not solve the issue, the employer can start considering the termination of an employment contract.

22. In light of all the above, the Single Judge came to the conclusion that on 3 January 2020, date of the public statement in the social media, the Respondent terminated the contract with the Claimant without just cause and that the Claimant was thus entitled to compensation for the early termination.

23. Bearing in mind the previous considerations, the Single Judge went on to deal with the potential financial consequences of the early termination of the employment contract without just cause by the Respondent.

24. In this respect and to begin with, the Single Judge underlined that the Claimant did not request any outstanding remuneration.

25. In continuation, the Single Judge focused his attention to the compensation requested by the Claimant for a total amount of USD 18,327.23 for the unilateral termination of the contract without just cause by the Respondent.

26. The Single Judge underlined that the requested compensation included remuneration contractually agreed by the parties, i.e. clauses III and IV of the contract.

27. In this regard, the Single Judge noted that the parties did not establish a specific contractual provision regarding the possibility to prematurely terminate the contract.

28. At this stage, the Single Judge observed the Respondent´s allegation and pointed out that the fact that the tournament 2019/2020 was suspended for 30 days due to Covid-19 did not appear to have an influence on the matter at stake since, the contract was terminated on 3 January 2020 and the document issued by the FESFUT guaranteed that 100% of the remuneration due would be paid at the end of the season 2019/2020.

29. Consequently, and taking into account that the contract was valid until 31 December 2020 (i.e. end of opening tournament 2020), the Single Judge decided that the Claimant was entitled to his salary for the period from 3 January 2020 until 31 December 2020, as compensation for the unilateral termination of the contract without just cause by the Respondent.

30. In this context, the Single Judge pointed out that the Claimant remained unemployed until the end of the validity of the relevant contract, as a consequence, no mitigation is applicable to the relevant compensation.

31. Therefore, the Single Judge decided that the Claimant was entitled to receive from the Respondent the total amount of USD 15,000 divided as follows: USD 6,000, i.e. 6 monthly salaries of USD 1,000 each (salary for 2019/2020 season) and 6 monthly salaries of USD 1,500 each (salary for 2020/2021 season), as compensation for breach of contract.

32. Moreover, the Single Judge took note that the Claimant had requested interest over the damage compensation. In this regard, the Single Judge decided to grant interest at a rate of 5% per year over the relevant compensation amounting to USD 15,000 as from the date in which the Claimant lodged the present claim at FIFA, i.e. 19 February 2020.

33. With regard to the request of the Claimant for reimbursement of the return flight ticket, the Single Judge underlined that it was contractually agreed and, in addition the Claimant presented evidence of having paid the amount of USD 327.23.

34. Furthermore, the Single Judge took note that the Claimant had requested interest over the amount paid as flight ticket. In this regard, the Single Judge decided to grant interest at a rate of 5% per year over the amount of USD 327.23 as from the date in which the Claimant lodged the present claim at FIFA, i.e. 19 February 2020.

35. With regard to the Claimant’s request for legal costs, the Single Judge decided to reject such request is not granted in proceedings before the Players’ Status Committee in accordance with article 18 par. 4 of the Procedural Rules.

36. In view of all the above-mentioned considerations, the Single Judge decided that the claim of the Claimant is partially accepted and that the Respondent has to pay to the Claimant the amount of USD 327.23 as flight ticket, as well as, USD 15,000 as compensation for breach of contract plus the respective interests.

37. Finally, the Single Judge referred to art. 25 par. 2 of the Regulations in combination with art. 18 par. 1 of the Procedural Rules, according to which in proceedings before the Players’ Status Committee including its Single Judge, costs in the maximum amount of CHF 25,000 are levied and according to which the costs are to be borne in consideration of the parties’ degree of success in the proceedings and are normally to be paid by the unsuccessful party.

38. Moreover, the Single Judge referred to art. 18 par. 1 ii. of the Procedural Rules according to which “For any claim or counter-claim lodged prior to 10 June 2020 which has yet to be decided at the time of this temporary amendment, the maximum amount of procedural costs levied shall be equivalent to any advance of costs paid”.

39. Taking into account that the responsibility of the failure to comply with the payment of the amount as agreed in the agreement can be entirely attributed to the Respondent, the Single Judge concluded that the Respondent has to bear the costs of the current proceedings before FIFA. According to cited art. 18 par. 1 ii. of the Procedural Rules, the costs of the proceedings shall be equivalent until the maximum amount paid by the Clamant as advance of costs. On that basis, the Single Judge held that the amount paid by the Claimant as advance of costs in the present proceedings is CHF 1,000. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 1,000.

40. In light of the above, the Single Judge determined the costs of the current proceedings in the amount of CHF 1,000. Finally, the Single Judge decided that the Respondent has to pay CHF 1,000 in order to cover the costs of the present proceedings.

41. The Single Judge concluded his deliberations by establishing that any other claim lodged by the Claimant is rejected.

III. DECISION OF THE PLAYERS' STATUS COMMITTEE

1. The claim of the Claimant, Marco Antonio Larriba Valdivia, is admissible.

2. The claim of the Claimant is partially accepted.

3. The Respondent, Santa Tecla FC, has to pay to the Claimant within 30 days as from the date of notification of this decision the following amounts:

- USD 15,000 as compensation plus interest of 5% p.a. as from 19 February 2020 until the date of effective payment;

- USD 327.23 as a flight ticket plus interest of 5% p.a. as from as from 19 February 2020 until the date of effective payment.

4. Any further claim of the Claimant is rejected.

5. In the event that the amount due to the Claimant in accordance with the above-mentioned number 3. plus interest is 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. The Claimant is directed to inform the Respondent 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.

7. The final costs of the proceedings in the amount of CHF 1,000 are to be paid by the Respondent to FIFA.

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 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:

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