F.I.F.A. – Players’ Status Committee / Commissione per lo Status dei Calciatori – coach disputes / controversie allenatori (2020-2021) – fifa.com – atto non ufficiale – Decision22 September 2020

Decision of the

Single Judge of the Players' Status Committee

passed on 22 September 2020,

regarding an employment-related dispute concerning the coach Mr Micael Martins Sequeira

BY:

Castellar Guimarães Neto (Brazil), Single Judge of the PSC

CLAIMANT:

MICAEL MARTINS SEQUEIRA, Portugal

Represented by Mrs Andrea Macedo

RESPONDENT:

AL NASSER, Saudi Arabia

Represented by Mr Daniel Muñoz Sierra

I. FACTS OF THE CASE

1. On 1 September 2018, the Claimant and the Respondent (hereinafter jointly referred to as: the parties) signed an employment agreement (hereinafter: the contract), valid as of 1 September 2018 until 30 June 2019, which was “automatically renewable unless either party notifies the other in writing that he is not willing to renew the contract before at least 15 days from the contract expiry date”.

2. In accordance with the contract, the Respondent undertook to pay to the Claimant, inter alia, the following amounts:

- EUR 90,000, payable in ten equal monthly salaries of EUR 9,000 each;

- A bonus ”in an amount equivalent to one monthly salary (7,500) […] in case of winning the league title of u19 team”.

3. Clause 9 para. 2 of the contract reads as follows: “Any dispute which may occur between the two parties on this contract or its interpretation shall be subject to the jurisdiction of the competent authority concerned with judging the labor cases in Saudi Arabia as stated in the Saudi Labor Law”.

4. According to the Claimant, he was allegedly at the services and orders of the Respondent after the expiry of the initial contract, i.e. after 30 June 2019, and “continued until August 2019 without any opposition manifested by the Respondent”.

5. Furthermore, the Claimant maintained that the U-19 team allegedly won the league title.

6. In July 2019, the Claimant allegedly, “with the agreed and authorization of the Respondent, travelled to Portugal to enjoy the holiday period with his family”.

7. According to the Claimant, “[i]n the middle of August 2019”, he allegedly found out that he “was not booked and paid for his trip”. The Claimant maintained that this happened “without any prior notification, unjustified and abusively” and that the Respondent “broke” the employment contract.

8. In this context, the Claimant maintained that the Respondent “did not justify the dismissal” and terminated the contract without just cause. Moreover, the Claimant argued that the Respondent did not respect art. 13 of the RSTP.

9. According to the Claimant, the Respondent allegedly did not pay him 2 monthly salaries for the season 2018/2019, as well as the bonus for winning the league title.

10. Furthermore, the Claimant deemed to be entitled to compensation according to art. 17 para. 1 RSTP for the termination of the contract without just cause.

“The Claimant shall respectfully request the resolution of the dispute in the Players’ Status Committee and be recognized:

(i) acknowledge that the Respondent dismissed the Claimant without just cause before the termination of the contract;

(ii) acknowledge that the Respondent unlawfully dismissed the Claimant;

(iii) acknowledge that the Respondent is responsible for the early termination of the contract and therefore order him to pay the compensation payable to the Claimant, namely:

1) 2 (two) overdue salaries of the 2018/2019 season in the total amount of € 18.000,00 (eighteen thousand euros);

2) 10 (ten) months of salaries of the 2019/2020 season in the total amount of € 90.000.00 (ninety thousand euros), since the contract was automatically renewed on the 01/07/2019, for it was not terminated under the contractually terms provided for either party;

3) € 9,000.00 (nine thousand euros) referring to the bonus for winning the league title of u19 team;

In the total amount due of € 117.000,00 (one hundred seventeen thousand euros) PLUS INTERESTS at the rate of 5% since the condemnation of this PSC till the complete payment by the Respondent to the Claimant, Mr Micael Sequeira”.

11. In its reply to the claim, as to the competence, the Respondent held that FIFA is not competent to hear the matter at hand, arguing that the civil court of Saudi Arabia is the competent deciding body to adjudicate on the present matter.

12. In this respect, the Respondent held that, since the nature of the Saudi Labour Courts is of a civil court, in application of art. 22 FIFA, FIFA cannot be competent to hear about the present dispute, insofar the parties opted out of the competence of FIFA by expressly stipulating that the aforementioned national Labour Courts shall be the only “competent authority” to rule upon any dispute arising from their contractual relationship.

13. As to the substance, the Respondent held that at the end of the 2018/2019 sporting season, the parties decided to not renew the contract.

14. The Respondent provided an extract from a whatsapp conversation allegedly maintained between the head coach and the Respondent on 23 October 2019, as well as an email between the Respondent and members of the coaching team.

15. The Respondent further held that, following the end of the 2018/2019 sporting season, the Claimant went back to Portugal and never returned, making it clear that he was aware that the contract had not been extended to the 2019/2020 sporting season.

16. The Respondent further held that the Claimant did not contact the Respondent prior to the claim to FIFA, thereby demonstrating that the contract had not been renewed.

17. The Respondent underlined that the Claimant is the only member of the coaching staff to have “forgotten that the contract was not renewed”.

18. On the bonus claimed, the Respondent held that the claim was not substantiated by any evidence.

19. On 27 December 2019, the Claimant signed an employment contract with the Portuguese club, Sporting Clube de Braga, valid as from 1 January 2020 until 30 June 2022, in accordance with which he was entitled to EUR 35,280 for the remaining part of the 2019/2020 sporting season.

II. CONSIDERATIONS OF THE SINGLE JUDGE OF THE PLAYERS’ STATUS COMMITTEE

1. First of all, the Single Judge of the Players’ Status Committee (hereinafter also referred to as: the Single Judge) analysed whether he was competent to deal with the matter at hand. In this respect, he took note that the present matter was submitted to FIFA on 26 March 2020 and was decided on 22 September 2020. Consequently, the Single Judge concluded that the June 2020 edition of the Procedural Rules is applicable to the matter at hand (cf. art. 21 of the Procedural Rules).

2. Subsequently, the Single Judge referred to art. 3 par. 1 and 2 of the Procedural Rules and confirmed that in accordance with art. 23 par. 1 and 4 in combination with art. 22 lit. c) of the of the Regulations on the Status and Transfer of Players (March 2020 edition), in principle, he would be competent to deal with the matter at stake which concerns an employment-related dispute of an international dimension between a Portuguese coach and a Saudi club.

3. However, the Single Judge acknowledged that the Respondent contested the competence of FIFA’s deciding bodies on the basis of clause 9 para. 2 of the contract, stating that employment-related disputes between the parties fall within the exclusive jurisdiction of the labour courts of Saudi Arabia.

4. Consequently, the Single Judge started to analyse the aforementioned clause of the contract and considered it appropriate to quote the content of such clause: "Any dispute which may occur between the two parties on this contract or its interpretation shall be subject to the jurisdiction of the competent authority concerned with judging the labor cases in Saudi Arabia as stated in the Saudi Labor Law".

5. In this respect, the Single Judge stated that from the analysis of clause 9 para. 2 of the contract, it was clear that the parties had agreed that in case of divergences derived from the contract, they would submit any eventual dispute to the consideration and decision of the labour court of Saudi Arabia.

6. In this regard, the Single Judge concluded that clause 9 para. 2 of the contract was clear and precise as to the exclusive jurisdiction granted by the parties to the ordinary courts in case of disputes that might arise between them arising from the contract and, therefore, the Single Judge concluded that such jurisdiction clause was valid.

7. Furthermore, the Single Judge held that it was necessary to refer to the content of art. 22 para. 1 of the Regulations. In this sense, the Single Judge clarified that the ratio legis of the aforesaid provision is to preserve the right of a player (or a club) to submit their labour disputes before ordinary courts by considering such relationship as an employment relationship, i.e., between an employee and an employer.

8. The Single Judge further stressed that, to deprive an employee of his right to bring such disputes before an ordinary court would result in a violation of his employment rights. In this context, the Single Judge wished to point out that the relationship between a coach and a club or association has all the essential elements of an employment relationship.

9. In this vein, the Single Judge considered that, ex. art. 22 para. 1 of the Regulations, the possibility of submitting labour disputes to the corresponding ordinary courts should be left open also to coaches, in their quality of employees of clubs or federations.

10. Moreover, the Single Judge added that a literal interpretation of the rule regardless of its spirit and purpose would generate extremely serious consequences, depriving an employee of his right to seek redress before the ordinary courts.

11. In addition, the Single Judge stressed that a literal application of Article 22 para. 1 of the Regulations would create an unjustified restriction for a coach who must be able to exercise his rights as an employee in every possible way, just like the players. In other words, the Single Judge considered that being strictly formal as to the content of the rule in question would imply going against the general principles of law.

12. In essence, the Single Judge concluded that more weight and importance should be given to general principles of law, in particular equality before the law, than to a formal, literal and strict interpretation of Article 22, para 1 of the Regulations.

13. In this context, the Single Judge referred to article 59 para. 2 of the FIFA Statutes, which states the following: "Recourse to the ordinary courts is forbidden unless specified in FIFA regulations. Ordinary channels are also excluded in the case of precautionary measures of any kind".

14. In this context, the Single Judge stated that the broad application of Art. 22 par. 1 of the Regulations to coaches does not violate art. 59 para. 2 of the FIFA Statutes, as this article expressly states "unless otherwise specified in FIFA regulations". In this regard, the Single Judge underlined that, although it is not written in the Regulations that coaches may resort to ordinary courts, a broad interpretation of art. 22 par. 1 of the Regulations by this decision-making body gives it legitimacy.

15. On the basis of the foregoing, the Single Judge concluded that clause 9 para. 2 of the contract was valid and that art. 22 par. 1 of the Regulations must be interpreted with a broad criterion, assimilating the labour rights of coaches to those of players.

16. Consequently, the Single Judge decided that, in view of the existence of a contractual stipulation whereby the parties agreed that in case of contractual disputes, the latter “shall” seek for redress before the Saudi ordinary courts, the Single Judge was not competent to enter into the substance of the present dispute and, therefore, considered the plaintiff's claim inadmissible.

17. Lastly, the Single Judge referred to art. 25 par. 2 of the Regulations in combination with art. 18 par. 1 of the Procedural Rules, according to which in the proceedings before the Players’ Status Committee and the Single Judge, 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 and are normally to be paid by the unsuccessful party.

18. In this respect, the Single Judge reiterated that the Claimant’s claim is inadmissible and, therefore, the Single Judge decided that the Claimant shall bear the entirety of costs of the current proceedings in front of FIFA.

19. The Single Judge further observed the temporary amendments outlined in art. 18 par. 2 lit. ii) of the Procedural Rules, which entered in force in 10 June 2020, according to which the maximum amount of procedural costs levied for any claim lodged prior to 10 June 2020, which was yet to be decided at the time of such temporary amendment, shall be equivalent to any advance of costs paid.

20. Accordingly, the Single Judge observed that the Claimant paid the amount of CHF 3,000 as advance of costs, and therefore decided that the maximum amount of costs of the proceedings corresponds to CHF 3,000.

21. In view of the outcome of the present case, the Single Judge determined that the Claimant shall be ordered to pay the amount of CHF 3,000 in order to cover the costs of the present proceedings.

22. Subsequently, the Single Judge reverted to art. 17 par. 4 in combination with art. 18 of the Procedural Rules, and observed that the advance of costs paid by a party shall be duly considered in the decision regarding costs. Therefore, given that the Claimant is responsible to pay the entirety of the procedural costs, the Single Judge decided that the amount paid by the Claimant as advance of costs shall serve as payment of the procedural costs, should the Claimant request the grounds of the decision.

III. DECISION OF THE SINGLE JUDGE OF THE PLAYERS’ STATUS COMMITTEE

1. The claim of the Claimant, Micael Martins Sequeira, is inadmissible.

2. The final costs of the proceedings in the amount of CHF 3,000 are to be paid by the Claimant to FIFA but given that the Claimant already paid CHF 3,000 as advance of costs, no further payment is required (cf. note relating to the payment of the procedural costs below).

For the Single Judge of the PSC:

Emilio García Silvero

Chief Legal & Compliance Officer

NOTE RELATED TO THE APPEAL PROCEDURE:

According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this decision.

NOTE RELATED TO THE PUBLICATION:

FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a party within five days of the notification of the motivated decision, to publish an anonymised or a redacted version (cf. article 20 of the Procedural Rules).

CONTACT INFORMATION:

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