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 november 2020

Decision of the

Single Judge of the PSC

passed on 20 november 2020

regarding an employment-related dispute concerning the assistant coach Anthony Grant

COMPOSITION:

Roy Vermeer (Netherlands), Single Judge of the PSC

CLAIMANT:

Anthony Grant, England

Represented by Darren Charles Kane

RESPONDENT:

Brisbane Roar FC, Australia

Represented by Bär & Karrer

I. Facts

1. On 1 June 2019, the Claimant concluded an “Employment Agreement” as “Assistant Coach” with the Respondent, valid until 31 May 2021.

2. In this respect, the contract stipulated the following:

3 Extension of the Term (a) On, After or before 30 November 2020, Brisbane Roar may elect to offer Grant an extension to the term as Assistant Coach of Brisbane Roar. Parties agree to negotiate the terms of the extension in good faith with Brisbane Roar having the final right to offer Grant an extension. The negotiation period will cease at the conclusion of the current contract being the conclusion date 31st May 2021.

The contract provided the following economic terms:

5. REMUNERATION & INCENTIVES

5. 1 Salary and benefits

(a) Brisbane Roar will pay you on a Total Employment Cost basis.

(b) Your Total Employment Cost for the Term of this agreement will be as follows:

(i) Year l $200,000.00 From Commencement Date; and

(ii) Year 2 $200,000.00

(c) Your Total Employment Cost includes compulsory superannuation contributions paid by Brisbane Roar for your benefit. Brisbane Roar will make these contributions up to the quarterly maximum salary cap on your behalf in accordance with the Superannuation Guarantee legislation to a complying superannuation fund of your choice. You will be given information about this choice.

3. The contract stipulated the following as to its termination:

ENDING YOUR EMPLOYMENT

8.1 Ending your employment

(a) In the event that the Head Coach (Robert Fowler) terminates his employment with Brisbane Roar at any time, Brisbane Roar will allow Grant to immediately leave employment with no further payments ( other stand statutory Payment) by Brisbane Roar owing

(b) ,If Grant wishes to terminate his employment at any time during the contracted period, Grant must provide Brisbane Roar 4 week's notice

(c) If Brisbane Roar wishes to terminate Grants employment at any time during the contract period, Brisbane Roar requires approval from the Head Coach in the first instance prior to issuing Grant with a 3 month notice period to terminate his employment.

(d) Brisbane Roar may:

(i) pay your Total Employment Cost in lieu of your notice period; or

(ii) require you to work for part of your notice period and pay your Total Employment Cost in lieu of the balance of the period.

(…)

8.4

"Brisbane Roar may end your employment immediately at any time without notice or further payment to you if you:

(a) Engage in conduct inconsistent with the continuation of the agreement

(b) Breach the code of conduct (c) Commit any breach of this agreement including, without limitation, a refusal to carry out a lawful instruction, a failure to perform or carry out any duty

(…)"

4. On 22 March 2020, the football season in Australia was interrupted due to the COVID-19 pandemic.

5. On 11 June 2020, the football season in Australia resumed.

6. On 17 June 2020, the Claimant sent an email to the club with, inter alia, the following contents:

“I have a good name in the game and have always spoke up when the time is right. We have done a tremendous job at our club Brisbane Roar.

When the pandemic started we asked if you could sort out our flights home ... we were in a panic in a different country .. our families were in a panic...but 'no' was the answer, and left to us to sort out...the governments of both the uk and Australia was telling all overseas visitors to go home. We felt abandoned at this moment.

(…)

I hope we can find a way for us all to work together to finish the job at Brisbane Roar that we have started. We speak to players who keep asking when are we coming back, we hope we can have an answer to these questions very soon.”

7. On the same date 17 June 2020, the club sent an email to the Claimant as well as to the head coach (Robert Fowler) indicating the following aspect related to the effects of the COVID-19 pandemic:

“We all have been abandoned, and you are aren't alone in thinking this. The FFA has abandoned us, as have our other revenue streams (…)

Our position has been made very clear since last Thursday including our expectations, we need to understand your position. I completely understand if you would prefer not to return and wait for an outcome for next season, either way we need to move forward. The players will commencing training tomorrow, and we need to address what the both of you are or aren't doing.”

8. On 29 June 2020, the Respondent released the following media statement, which was allegedly approved by the Head Coach:

“ Media Announcement

Brisbane Football Club (BRFC) wishes to advise that given the current and ongoing coronavirus situation, Head Coach Robbie Fowler and his assistant Tony Grant will not be returning to the Club.

The former English Premier League striker was appointed Brisbane's Hyundai A-League Head Coach in April 2019 and together with Tony Grant played a critically important role in reviving the Club's fortunes during the 2019/20 campaign before the competition was paused in March 2020 due to the COVID-19 pandemic.

Fowler will be remembered for his ability to identify and play young Australian talent and help re-establish the Club's strong foundations, while assembling a competitive and talented squad that currently sits in finals contention ahead of next month's Hyundai A-League 2019/20 season resumption.

The Club would like to take this opportunity to thank Robbie and Tony for their contributions, and we wish them and their families well with their future endeavours.

Deputy Chairman, Chris Fong commented: "Robbie has not only provided stability but a refreshing injection of knowledge and insight into the Roar, we are disappointed that the global pandemic has impacted our plans together but completely understand that family comes first during these difficult times."

Fowler commented: "On behalf of myself and Tony, I would like to thank the Club for the opportunity, and the Brisbane Roar FC fans for the warm welcome and support for me and the team. We are very proud of what we achieved."

Further announcements on the Head Coach position and appointment process at the conclusion of the Hyundai A-League 2019/2020 season.

9. On 30 June 2020, the legal representative of the Respondent sent a termination letter to the Claimant with, inter alia, the following:

“On 17 June 2020 in an email addressed to you and Mr Fowler the question was directly asked by the Club as to whether you were returning to Australia to complete the A-league season. You have not personally responded to that request albeit Mr Fowler appears to have responded on your behalf. The fact is you have not indicated to us your intention to return to Australia. You would be aware that the arrangement between the Club and Mr Fowler has been terminated. This morning Mr Fowler responded to the Club with changes to a proposed media release by including a statement that you are also departing the Club. We are safely assuming that you authorised him to make that statement on your behalf. The Club wishes to formalise the position with you. In all of the circumstances set out above, Brisbane Roar has elected to end your contract without notice pursuant to clause 8.4 of the Contract. Brisbane Roar intends to announce to the media, consistent with the media release sent to us today by Robbie Fowler, that you will not be returning to finish the 2019/20 A-League season.”

10. The Coach informed FIFA that, on 25 September 2020, he entered into an employment contract (Assistant Coach) with the Indian club, Shree Cement East Bengal Foundation, valid as from the date of signature until 31 May 2022 with the following economic conditions:

“Season 2020-21

1.1. For the period from 25.09.2020 to 31.05.2021 the Club shall pay to the ASSISTANT COACH a total gross fixed sum of USD 152,000 [United States Dollars One Three Hundred & Eighty Thousand Only] (the “Fee”)

Season 2021-22

1.5. For the period from 1.06.2020 to 31.05.2021 the Club shall pay to the ASSISTANT COACH a total gross fixed sum of USD 152,000 [United States Dollars One Hundred & Fifty Two Thousand Only] (the “Fee”).

11. On 20 August 2020, the Claimant lodged a claim before FIFA for breach of contract without just cause and made the following request for relief:

(a) Loss of the Total Employment Cost on a pro-rata basis for the period from 30 June 2020 to 31 May 2021, including lost salary payments due to the Claimant and lost compulsory superannuation contributions due to be made on behalf of the Claimant. The Total Employment Cost for the period from 30 June 2020 to 31 May 2021 is approximately AUD$183,333.33. This is equal to CHF119.166.66 using an exchange rate of AUD$1 / CHF0.65.

(b) The loss of any bonus payments which have, or which may accrue under clause 5.6(a) of the Employment Contract.

(c) The loss of the opportunity to earn bonus and incentive payments which might otherwise have been available to the Claimant under clause 5.6(a) of the Employment Contract.

(d} The loss of the value of the use of the mobile telephone to be provided by the Respondent under clause 5.5 of the Employment Contract. The claimant claims AUD$2,000 under this head of damage. This is equal to CHF 1,300 using an exchange rate of AUD$1 / CHF0.65.

(e) The loss of the value of return flights between Australia and England for the Claimant. The claimant claims AUD$5,000 under this head of damage. This is equal to CHF 3,250 using an exchange rate of AUD$1 / CHF0.65

(f) Loss of publicity.

(g) Damages as a consequence of it being wrongly portrayed in the public domain that the Claimant has elected to not return to Australia to continue as Assistant Coach of the Roar, where in fact the Respondent did on 30 June 2020 purport to terminate the Employment Contract and the Claimant's employment.

12. The Claimant considered that he never refused to return to Australia to resume employment and that the Respondent did not have any legal basis or right to unilaterally terminate the contract on 30 June 2020.

13. In its reply to the claim, the Respondent argued that the Claimant, unilaterally, and without informing his employer at all, decided to travel back home to England during the interruption of football competitions because of the COVID-19 pandemic.

14. The Respondent further referred to the “Parallel Case: 20-01152", which concerns the Head Coach, Robert Bernard Fowler and in particular to an email dated 22 June 2020 where the Head Coach had indicated that “we will not be returning as a consequence”.

15. According to the Respondent, when the competition resumed, the Assistant Coach refused to come back, notwithstanding multiple requests by the Club, in clear breach of his contractual obligations.

16. In this respect, the Respondent explained that, when it was clear that the A-League would resume, representatives of the Club entered again into contact with the Head Coach and the Claimant, keen to discuss, in good faith, the modalities of their return to Australia.

17. Ultimately, according to the Respondent, in response to repeated written requests from the Chairman and the lawyer of the Respondent to return to Australia, the Head Coach confirmed, “on his behalf and for his entire coaching team that nobody would be returning to Australia.”

18. As a result, the Respondent was of the opinion that the Claim of the Claimant “is therefore not only meritless, it is totally pretentious, unfair and lodged in bad faith.”

II. Considerations of the Single Judge of the PSC

1. First of all, the Single Judge of the PSC (hereinafter also referred to as Single Judge) analysed whether he was competent to deal with the case at hand. 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 of the PSC referred to art. 3 par. 1 of the Procedural Rules and emphasised that, in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players, the Single Judge of the PSC is competent to deal with matters which concern employment-related disputes with an international dimension between a coach and clubs.

3. In continuation, the Single Judge of the PSC analysed which edition of the Regulations of the Status and Transfer of Players should be applicable to the present matter. In this respect, the Single Judge of the PSC confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players, and considering that the claim was lodged on 20 August 2020, the June 2020 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand.

4. With the above having been established, the Single Judge of the PSC entered into the substance of the matter. In doing so, it started to acknowledge the facts of the case as well as the documents contained in the file. However, the Single Judge of the PSC emphasized that in the following considerations it will refer only to facts, arguments and documentary evidence which it considered pertinent for the assessment of the matter at hand.

5. In this respect, the Single Judge noted that, on 1 June 2019, the Claimant concluded an “Employment Agreement” as “Assistant Coach” with the Respondent, valid until 31 May 2021.

6. Subsequently, the Single Judge observed that the Claimant lodged a claim before FIFA for breach of contract without just cause, arguing that the Respondent unilaterally terminated the contract without valid reasons on 30 June 2020.

7. Conversely, the Single Judge noted that, according to the Respondent, the claim of the Claimant is “meritless, it is totally pretentious, unfair and lodged in bad faith”, considering that, according to the Respondent, the Claimant, unilaterally, and without informing his employer at all, decided to travel back home to England during the interruption of football competitions because of the COVID-19 pandemic. In addition, the Respondent held that despite its requests the Claimant did not return to Australia to resume his employment.

8. In view of the above, the Single Judge understood that the first legal issue to determine is to establish the date of termination of the contract.

9. In this respect, the Single Judge observed that it remains undisputed that the Respondent sent a termination letter to the Claimant on 30 June 2020.

10. This being established, the Single Judge therefore considered that the main legal issue at stake is to determine whether the Respondent had a just cause to unilaterally terminate the contract on 30 June 2020.

11. In this respect, the Single Judge was eager to emphasise that only a breach or misconduct which is of a certain severity justifies the termination of a contract. 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 ensure 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 only ever be an ultima ratio measure.

12. With this idea in mind, the Single Judge acknowledged the specific circumstances of the present matter, which concern the disruptions caused by the COVID-19 pandemic in the football world. The Single Judge understood that, within this context, the interruption of football competitions in Australia (as well as in other countries) in March 2020 led the Claimant decide to travel to his country, the United Kingdom, for a certain period. The Single Judge further noted that there is no dispute between the parties in relation to the salaries between March and June 2020, where pay-cuts were applied in accordance with Australian law and the agreement negotiated between the Professional Footballers Association and the Football Federation of Australia.

13. Within this context, the Single Judge observed that, in view of the return of football competitions in Australia during the month of June 2020, the parties engaged at that time in an intense exchange of correspondence (cf. points I.3 to I. 6 above) in order to discuss the Claimant’s return to Australia.

14. The Single Judge carefully examined the exchange of correspondence between the parties during said period of time, and concluded that its content only revealed that the parties were engaged in a discussion on the return of the Claimant and the Head Coach. Taking the full exchange of correspondence between the Claimant, the Head Coach and the Respondent into account, the Single Judge noted that there were indeed tensions between the parties as well as a certain reluctance on the side of the Head Coach to return, yet those were predominantly related to the conditions of his return and did not show an absolute refusal to return. At the same time, the Single Judge also emphasised that the Respondent did at no time unequivocally notify the Claimant that it deemed the Claimant’s absence from Australia to be a breach of contract which – if not remedied – would result in the termination of the contract. The Single Judge finds that on 30 June 2020, the club abruptly sent a termination notice.

15. Therefore, in the view of the Single Judge, the Respondent’s termination letter of 30 June 2020 appears to be premature since, at that stage, the contractual relationship existing between the parties was not beyond repair.

16. What is more, the Single Judge examined the reasons stated by the Respondent in its letter. In particular, the Single Judge noted that, in said letter, the Respondent argued that “in all of the circumstances set out above, Brisbane Roar has elected to end your contract without notice pursuant to clause 8.4 of the Contract.”

17. In relation to said argument, the Single Judge observed that clause 8.4 of the contract stipulates the following:

8.4

"Brisbane Roar may end your employment immediately at any time without notice or further payment to you if you:

(a) Engage in conduct inconsistent with the continuation of the agreement

(b) Breach the code of conduct

(c) Commit any breach of this agreement including, without limitation, a refusal to carry out a lawful instruction, a failure to perform or carry out any duty "(…)

18. Concerning the applicability of the aforementioned clause, the Single Judge of the PSC reminded the parties of the contents of art. 12 par. 3 of the Procedural Rules, according to which “any party claiming a right on the basis of an alleged fact shall carry the burden of proof”.

19. In application of the aforementioned provision, the Single Judge observed the documentation provided by the Respondent during the course of the investigation, and understood that the latter could not prove under any circumstance that the Claimant acted in any of the manners that are described in art. 8.4 of the contract.

20. In addition, and in accordance with the jurisprudence of the PSC, the Single Judge was of the opinion that, even if that was the case, the Respondent had to initiate a proper procedure (including a formal default notice) in order to allow the coach to remedy his hypothetical breach. However, the Single Judge observed that this was not the case in the matter at stake.

21. In view of all the previous considerations, the Single Judge established that the termination of the contract on 30 June 2020 was without just cause and, as a result, the Claimant is entitled to compensation.

22. In continuation, the Single Judge focused his attention on the calculation of the amount of compensation for breach of contract in the case at stake. In doing so, the Single Judge firstly recapitulated that, in accordance with the jurisprudence of the Players’ Status Committee, 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, the time remaining on the existing contract up to a maximum of five years.

23.In view of the above, the Single Judge proceeded with the calculation of the moniespayable to the coach under the terms of the employment contract until its original dateof expiration.

24.In particular, the Single Judge noted that, following the contract, the coach was entitledto a salary of AUD 200,000 per year.

25.Therefore, the Single Judge understood that, since the early termination of the contracton 30 June 2020 and until original date of expiration of the contract, i.e. 31 May 2021,the Claimant would have received a total amount of AUD 183,333, corresponding to hisremuneration from 1 July 2020 until 31 May 2021 (i.e. AUD 200,000/12*11).

26.Consequently, the Single Judge established that the amount of AUD 183,333 shall serveas the basis for the calculation of the payable compensation.

27.Subsequently, the Single judge verified as to whether the Claimant had signed anemployment contract with another club during the relevant period of time, by means ofwhich he would have been enabled to reduce his loss of income. According to theconstant practice in this regard, such remuneration under a new employment contractshall be taken into account in the calculation of the amount of compensation for breachof contract in connection with Claimant’s general obligation to mitigate his damages.

28.In this respect, the Single Judge observed that, on 25 September 2020, he entered into anemployment contract (Assistant Coach) with the Indian club, Shree Cement East BengalFoundation, valid as from the date of signature until 31 May 2022.

29.As a result, the Single Judge understood that, from 1 July 2020 until 25 September 2020,i.e, roughly 3 months, the Claimant remained unemployed and consequently he wasunable to mitigate his damages during said period of time.

30.Consequently, the Single Judge established that the Claimant is entitled to receive anamount equivalent to his remuneration with the Respondent for said non-mitigated timeand totalling AUD 50,000 (i.e. AUD 200,000/12*3).

31.Thereafter, the Single Judge observed that, according to the contract concluded by theClaimant with the Indian club, Shree Cement East Bengal Foundation, the former wouldbe entitled to, for the period from 25 September 2020 to 31 May 2021, to a total amountof USD 152,000, which is equivalent to approx. AUD 206,000.

32.Therefore, considering that said equivalent amount of AUD 206,000 is higher than theamounts that the Claimant would have received from the Respondent during said periodof time, the Single Judge considered, for said period between 25 September 2020 until31 May 2021, the Claimant fully mitigated his damages.

33.As a result, the Single Judge established that the amount of AUD 50,000, correspondingto the equivalent of the non-mitigated residual value of the contract, shall correspond tothe payable compensation, which he considered consistent with the jurisprudence of thePlayers’ Status Committee as well as with the applicable Regulations.

34.In view of the above, the Single Judge established that the Respondent shall pay to the Claimant the amount of AUD 50,000 as compensation for breach of contract without just cause.35.Furthermore, the Single Judge decided to reject the request of the Claimant for additional compensation due to damages to his reputation, insofar it is not contractually provided nor sufficiently substantiated.36.The Single Judge further rejected any other request made by the Claimant.37.In continuation, the Single Judge of the PSC 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 Dispute Resolution Chamber relating to disputes regarding solidarity mechanism 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.38.In this respect, the Single Judge of the PSC referred to the Covid-19 Football Regulatory Issues – FAQ, published on 11 June 2020 which establish that, given the current circumstances, for any claim lodged between 10 June 2020 and 31 December 2020 (both inclusive), there will be no requirement to pay an advance of costs and no procedural costs shall be ordered. Therefore, the Single Judge established that the present decision shall be rendered without costs.

III. Decision of the Single Judge of the PSC

1. The claim of the Claimant, Anthony Grant, is partially accepted.

2. The Respondent, Brisbane Roar FC, has to pay to the Claimant, the amount of AUD 50,000 as compensation for breach of contract without just cause.

3. Any further claims of the Claimant are rejected.

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

5. The Respondent 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).

6. In the event that the amount due, plus interest as established above is not paid by the Respondent within 30 days, as from the notification by the Claimant of the relevant bank details to the Respondent, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee.

7. This decision is rendered without costs.

For the Single Judge of the PSC:

Emilio García Silvero

Chief Legal & Compliance Officer

NOTE RELATED TO THE APPEAL PROCEDURE:

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

NOTE RELATED TO THE PUBLICATION:

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

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