F.I.F.A. – Players’ Status Committee / Commissione per lo Status dei Calciatori – coach disputes / controversie allenatori (2020-2021) – fifa.com – atto non ufficiale – Decision6 October 2020

Decision of the

Single Judge of the

Players' Status Committee

6 October 2020

regarding an employment-related dispute concerning the coach Patrick Stephan Kluivert

BY:

Geoff Thompson (England), Single Judge of the PSC

CLAIMANT:

Patrick Stephan Kluivert, Netherlands

Represented by Mr. Ruggiero Cafari Panico & Mr Diego Lorenzetti

RESPONDENT:

Fédération Camerounaise de Football, Cameroon

Represented by Mr. Prosper Abega

I. Facts

1. On 10 August 2018, the coach, the President of the Normalization Committee of FECAFOOT and the Minister of Sports and Physical Education of Cameroon signed an employment contract (hereinafter: the contract), whose object was “to define the rights and the obligations of the Ministry of Sports, FECAFOOTD and the assistant coach of the men’s selection “A” (Senior Team) of Cameroon, “The Indomitable Lions”.

2. Clause 6 of the contract provided the duration of the contract, as follows:

Duration (1) The contract herewith is concluded for a period of four years and shall be effective from 9 August 2018 and expires on 9 August 2022. (2) It will be evaluated by the parties three months prior to the end of the second year. This evaluation is to determine whether to continue or terminate the contract without liability of both parties but in case of good performance of the Coach the Federation has the obligation to respect the existing contract for Year 3 and Year 4.

3. In accordance with clause 7 of the contract, the monthly salary of the second year amounts to EUR 33,300 net.

4. Clause 9 para. 2 of the contract reads as follows: “In the event of non-participation in the final of the CAN, TOTAL, Cameroon 2019, this contract may be terminated, subject to the full payment of the salaries of the 1st year, plus four (4) months of the salary of the 2nd year in one (1) instalment to be paid within five (5) working days from the communication of the termination”.

5. The contract further stipulated the following:

Article 10: Settlement of disputes (1) Any dispute arising from the terms and conditions of execution of this contract shall be settled amicably upon the invitation of the most diligent party. (2) If there shall be no amicable, agreement within a period of one (1) month from the invitation made by one of the parties, the parties undertake to submit it to the exclusive jurisdiction of the jurisdictional bodies of FIFA [in particular FIFA's Dispute Resolution Chamber (DRC)] and in accordance to Swiss law. (3) The parties irrevocably undertake to observe the strictest confidenti0lity with regard to disputes that may arise between them in direct or indirect relation to this contract. (4) The parties are strictly committed to respect the terms of the contract and execute it with good fair.

6. On 13 July 2019, FECAFOOT unilaterally terminated the contract in writing, which was confirmed by the correspondence dated 16 July 2019 sent by the President of FECAFOOT to the Claimant, whereby the former informed the latter of his dismissal “for failure to attain agreed upon objectives and non-compliance with agreed upon contractual obligations, as already mentioned in the previous communication of July 13th 2019”.

7. By means of his letter dated 20 July 2019, the Claimant replied to the termination letter sent by the Respondent, contesting the reasons provided by the latter in order to justify the termination of their contractual relationship (note: document on file); to which the Respondent allegedly failed to reply.

8. In this context, by means of his letter dated 17 March 2020, the Claimant put the Respondent in default of payment in the amount of EUR 133,200, granting the Respondent a 10 days’ deadline to remedy the default; however, to no avail.

9. In his request for relief, the Claimant requested compensation in the amount of EUR 133,200 as per clause 9 para. 2 of the contract, i.e. a compensation amounting to 4 monthly salaries in the amount of EUR 33,300 each; plus 5% interest p.a. as from 13 July 2019 until the date of effective payment.

10. In addition, the Claimant requested that the Respondent shall pay the legal costs incurred by the Claimant.

11. In his claim, the coach maintained that, despite him having complied with his contractual obligations and having reached his contractual objectives, with the exception of “reaching the final and winning the African Cup of Nations”, the club failed to pay his monthly salaries in due time, failed to provide technical equipment, failed to provide the taxation documents at the end of the year 2018 and, ultimately, terminated the contract without just cause.

12. On the substance, FECAFOOT held that the claim should be in any case rejected as the Cameroonian State was not name as a party to this dispute while it has signed the employment contract with the coach (via its Sports Ministry).

13. FECAFOOT argued that in accordance with Law n°2018/014 of 11 July 2018, « the financial resources made available to the actors of the sport movement by the State or its branches are public funds”.

14. Moreover, FECAFOOT held that in application of Law n°2014/384 of 26 September 2014, “the financial management of the national football teams shall be carried out jointly by the State and FECAFOOT on the basis of conventions and specific texts, and that the administrative, sports and technical management of the national soccer teams shall fall within the competence of FECAFOOT”.

15. In that sense, that FECAFOOT is of the opinion that the employment contract of the coach is actually an administrative contract as it was signed between the coach, FECAFOOT and the Ministry.

16. FECAFOOT explained that the contract mentions FECAFOOT only in the context of technical responsibilities and that the remuneration of the coach is payable by the Ministry.

17. As to the termination, FECAFOOT held that it had unilaterally terminated the contract with just cause since the national team did not reach the final of the African Cup of Nations and as such in application of art. 9 par. 2 of the contract, FECAFOOT could unilaterally terminate the contract.

18. However, FECAFOOT is of the opinion that despite art. 9 par. 2, the coach should not be entitled to a compensation as he failed to reach the objectives of his contract and that said article does not provide for a mandatory compensation.

19. Finally, FECAFOOT requested CHF 18,000 as procedural costs and legal fees

II. Considerations of the Single Judge of the PSC

1. First of all, the Single Judge of the PSC analysed whether it 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 referred to art. 3 par. 1 of the Procedural Rules and observed that, in accordance with art. 24 par. 1 in combination with art. 22 lit. c) of the Regulations on the Status and Transfer of Players, the Players' Status Committee is competent to deal with employment-related disputes between an association and a coach of an international dimension.

3. However, in this respect, the Single Judge of the PSC noted that the Respondent rejected the competence of FIFA, as the latter considered that the claim should be in any case rejected as the Cameroonian State was not name as a party to this dispute while it has signed the employment contract with the coach (via its Sports Ministry).

4. In relation to said argument, the Single Judge noted that the contract stipulated the following:

“Article 10: Settlement of disputes

(1) Any dispute arising from the terms and conditions of execution of this contract shall be settled amicably upon the invitation of the most diligent party.

(2) If there shall be no amicable agreement within a period of one (1) month from the invitation made by one of the parties, the parties undertake to submit it to the exclusive jurisdiction of the jurisdictional bodies of FIFA [in particular FIFA's Dispute Resolution Chamber (DRC)] and in accordance to Swiss law.

(...)”

5. Therefore, in view of the clear contents of art. 10 of the contract, which refer to the “exclusive jurisdiction” of FIFA, the Single Judge noted that the parties specifically agreed upon the jurisdiction of FIFA.

6. Moreover, and for the sake of completeness, the Singe Judge noted that the contract was signed by the claimant, FECAFOOT and the Ministry of Sports.

7. In this regard, the Single Judge observed art. 3, 4 and 5 of the contract, which respectively state the obligations of the claimant, the ministry as well as of the FECAFOOT. In this respect, and after duly examining the relevant clauses, the Single Judge noted that, although the coach was remunerated by the Ministry, he actually rendered his services for the FECAFOOT. The Single Judge noted in this respect that all the obligations of the claimant are specifically towards FECAFOOT.

8. As a result, the Single Judge confirmed that is competent to deal with the present dispute between a Dutch coach and the Fédération Camerounaise de Football (FECAFOOT).

9. 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 the date of the claim, the March 2020 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand.

10. 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.

11. In this respect, the Single Judge noted that the parties were bound by a contract which, according to its, art. 6, was “concluded for a period of four years and shall be effective from 9 August 2018 and expires on 9 August 2022.”

12. Subsequently, the Single Judge took note that the Claimant lodged a claim before the Respondent, arguing that the latter unilaterally terminated the contract without just cause on 13 July 2019.

13. Conversely, the Single Judge observed that, according to the Respondent, it had unilaterally terminated the contract with just cause since the national team did not reach the final of the African Cup of Nations and as such in application of art. 9 par. 2 of the contract, FECAFOOT could unilaterally terminate the contract.

14. In view of the above, the Single Judge went on to examine the contents of the termination letter of 13 July 2019, which contained, inter alia, the following:

“Pursuant to a joint interpretation of Article 3 and Article 9 of « WORK CONTRACT N° 2018/001/MINSEP/CAB/of10 AOUT 2018 », the Cameroon Football Federation (FECAFOOT) has hereby decided to terminate the contract with you, for the following reasons:

1. Failure to attain the objectives agreed upon, with regards to Article 3 paragraph l and Article 9 paragraph 2 of the contract.

2. Non-compliance with the contractual obligations agreed upon in Article 3 paragraph 2 (g), (h), (i) and Article 9 paragraph 1 agreed upon in the contract.

We request that you contact our competent administrative and financial services, in order to complete the formalities of the termination of the contract.”

15. Subsequently, the Single Judge observed the contents of art. 9 par 2. of the contract, which stipulated the following:

“(2) In the event of non-participation in the final of the CAN, TOTAL Cameroon 2019, this contract may be terminated, subject to full payment of the salaries of the 1st year, plus four ( 4) months of the salary of the 2nd year in one (1) installment to be paid within five (5) working days from the communication of the termination.”

16. In view of the above, the Single Judge understood that the legal issue at stake is whether a contract can be terminated in view of said clause, i.e. in the event of non-participation in the final of the CAN, TOTAL Cameroon 2019.

17. In this respect, the Single Judge considered that the aforementioned clause stipulates an obligation of results and not an obligation of means.

18. In relation to said result, the Single Judge noted, in accordance with sources that are of public knowledge, that the 2019 Africa Cup of Nations was held between 21 June and 19 July 2019, and comprised 24 national teams. The Single Judge took well note that the representative team of Cameroon did not participate the final match of said competition.

19. With this in mind, the Single Judge firstly wished to underline that the sporting results and outcome of a team in a specific international football competition cannot be foreseen, and that this circumstance is in fact part of the very fundamental nature of any competition.

20. Taking into account the above, the Single Judge also understood that, in view of the above, the contractual requirement to reach the final of said competition appears to be particularly ambitious for any team, this being regardless of the performance of the representative team of Cameroon in past editions of the Africa Cup of Nations. Indeed, the Single Judge of the PSC took note that the Africa Cup of Nations represents the major continental football championship held under the auspices of the Confédération Africaine de Football (CAF), and thus, all participants are expected to perform at the highest level.

21. Within this context, the Singe Judge wished to refer to the paramount importance of the principle of maintenance of contractual stability, which is a fundamental part of the Regulations.

22. Moreover, the Single Judge wished to emphasise that, following the longstanding jurisprudence of the Players’ Status Committee as well as of the Dispute Resolution Chamber, 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.

23. With the aforementioned principles in mind, the Single Judge considered that, in principle, the dismissal of a coach for the non-qualification of its team to the final of a major international competition appears to be disproportionate. In particular, the Single Judge considered that, ultimately, the team’s qualification for the final depends on a complex set of variables, which go well beyond the abilities of any (assistant) coach. If any, the achievement of said goal may be seen as the result of collective teamwork, but cannot be solely attributed to the efforts of a coach.

24. In sum, the Single Judge considered that the Respondent was not in a position to contractually demand specifically from the coach a qualification for the final of the 2019 Africa Cup of Nations, insofar this hypothetical event is not depending on his work only. Rather, the Single Judge was of the firm opinion that the Respondent could only expect from the Claimant to diligently make all efforts to deliver the more generic obligations that are contained in clause 3 of the contract, i.e. to “improve the ranking of Cameroon in the FIFA rankings and in particular ensure Cameroon's place in the top African rank”; “maintain, continue and improve the achievements of the reconstruction of the selection”; to “create a climate of discipline and respect within the selection process”, to “ensure fair and sound management of the selection” and to “perform talent detection in liaison with the National Technical Department (DTN)”.

25. In other words, the Single Judge understood that the contract to which the Claimant was bound, represents a set of obligations to take all the steps in his power to fulfil the terms of the agreement, however, he could not be contractually required, under the risk of dismissal, to achieve a qualification for the aforesaid final, insofar this circumstance is well beyond the abilities of any coach.

26. On this note, the Single Judge wished to underline that any employer can certainly provide the necessary incentives to encourage an employee to provide the best of his abilities to reach a certain sporting goal. However, at the same time, in the light of the principle of contractual stability, a contract cannot be unilaterally terminated solely due to the non-achievement of a specific, collective and particularly ambitious sporting goal. Thus, the Single Judge understood that clause 9 par. 2 of the contract shall be deemed as null and void.

27. In view of all the previous considerations, the Single Judge established that the Respondent terminated the contract without just cause on 13 July 2019 and, as a result, the Claimant is entitled to compensation.

28. In continuation, the Single Judge focused its 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.

29. In application of the relevant provision, the Single Judge held that it first of all had to clarify as to whether the pertinent employment contract contains a provision by means of which the parties had beforehand agreed upon an amount of compensation payable by the contractual parties in the event of breach of contract. In this regard, the Single Judge observed that the aforementioned clause 9 par. 2 established the conditions for the payment of compensation under the relevant scenario, by stating the coach would receive compensation corresponding to “full payment of the salaries of the 1st year, plus four ( 4) months of the salary of the 2nd year in one (1) installment to be paid within five (5) working days from the communication of the termination.”

30. Yet, in relation to said clause, the Single Judge considered that, insofar clause 9 par. 2 of the contract shall be deemed as null and void, it could not take into account any of its additional provisions.

31. Bearing in mind the foregoing, the Single Judge considered that the amount of payable compensation shall be calculated in accordance with the jurisprudence of the Players’ Status Committee.

32. In view of the above, the Single Judge proceeded with the calculation of the monies payable to the coach under the terms of the employment contract until its original date of expiration.

33. In particular, the Single Judge noted that, following the contract, the claimant was entitled to a monthly salary of EUR 25,000, or EUR 300,000 per year.

34. However, taking into account the request of the Claimant, the Single Judge noted that the coach limited his claim to the total amount of EUR 133,200

35. Therefore, in accordance with the principle of non ultra petita, the Single Judge considered that the amount of payable compensation shall correspond to EUR 133,200 which falls within the contractual terms as well as within the Claimant’s request.

36. As a result, the Single Judge established that the respondent shall pay to the Claimant the amount of EUR 133,200 as compensation for breach of contract without just cause.

37. In addition, and taking into account the longstanding jurisprudence in this respect as well as the Claimant’s request, the Single Judge decided to award 5% interest p.a. over the aforementioned amount as from the date of claim.

38. 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 substantiated.

39. 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.

40. 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 prior to 10 June 2020 which has yet to be decided, the maximum amount of the procedural costs shall be equivalent to any advance of costs paid. Thus, considering that the amount of CHF 3,000 was paid at the beginning of the proceedings, the Single Judge decide to imposed the payment of CHF 3,000 by the Respondent.

III. Decision of the Single Judge of the Players’ Status Committee

1. The claim of the Claimant, Patrick Stephan Kluivert, is admissible.

2. The claim of the Claimant is partially accepted.

3. The Respondent, Fédération Camerounaise de Football, has to pay to the Claimant, within 30 days as from the notification of the decision, the following amount:

- EUR 133,200 as compensation for breach of contract plus 5% interest p.a. as from 29 May 2020 until the date of effective payment.

4. Any further claims of the Claimant are rejected.

5. In the event that the amounts due to the Claimant in accordance with the above-mentioned number 3. is not paid by the Respondent within the stated time limits, 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 3,000 are to be paid by the Respondent 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:

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