F.I.F.A. – Players’ Status Committee / Commissione per lo Status dei Calciatori – coach disputes / controversie allenatori (2020-2021) – fifa.com – atto non ufficiale – Decision26 January 2021
Decision of the
Single Judge of the Players' Status Committee
Passed on 26 January 2021,
regarding an employment-related dispute concerning the coach Salvatore OROFINO
BY:
Johan van Gaalen (South Africa), Single Judge of the PSC
CLAIMANT 1 / RESPONDENT 2:
Salvatore Orofino, Italy
Represented by Mr. Yuri Zaytsev & Ms. Anna Tokmakova
CLAIMANT 2 / RESPONDENT 1:
Thanh Hoa Football Club, Vietnam
Represented by Mr. Thomas Spee
I. FACTS OF THE CASE
1. On 28 January 2020, the Italian coach, Mr Salvatore Orofino (hereinafter: the assistant coach)
and the Vietnamese club, Thanh Hoa Football Club (hereinafter: the club) concluded an
employment contract (hereinafter: the contract) valid as from 28 January 2020 until 30
October 2021, whereby the assistant coach was employed as Assistant to the club’s Head
Coach, Mr Fabio Lopez.
2. According to art. 1.4. of the contract, the assistant coach was entitled to a salary before tax
(net) of USD 2,500.
3. Art. 1.5 of the contract provides that the assistant coach is entitled to bonuses “as per
regulations of the Footbal Club and Contract terms and appendixes”.
4. Art. 3 of the contract stipulates as follows:
“Termination
(…)
3.3. Unilateral termination:
a. [the assistant coach] shall have the rights to unilaterally terminate the Contract before its
expiration in accordance with Article 37 of the Labor Law. For other circumstances, if Party
B desires to unilaterally terminate the Contract, he/they shall deliver a prior notice of 30 days
to the Club and return an amount of Contract value equivalent to the remaining period of
the Contract. If such remaining period is less than 03 months, the compensation shall be
actual salary thereof only.
b. The Club shall have the right to unilaterally terminate the Contract with [the assistant
coach] under Article 38 of the Labor Law and shall not have the rights to do the same under
Article 39 of the Labor Law. For other circumstances, if the Club desires to unilaterally
terminate the Contract, a prior notice of at least 15 days, [the club] and [the assistant coach]
will sit down to agree on the support level for [the assistant coach] during his application for
a new job.”
5. On 9 June 2020, the club wrote to the assistant coach and to the head coach, Mr Fabio
Lopez, the following email:
“Dear Mr Fabio and Mr Salvatore
Thanh Hoa Football Club invites you come to the Club Office (…) on 10/6/2020 to discuss
about the work. At the same time, the club informed you that on 9/6/2020, you did not
come to the club to work as prescribed”.
6. The assistant coach responded to the aforementioned email on the same day with an email
from his legal representative, wherein he stated that on 6 June 2020, the club’s Sport Director
told him he was no longer a part of the team and that on 8 June 2020 he was suspended.
The assistant coach concluded: “the club is no longer entitled to discuss with the coaches their work, when they already actually fired. Please let me know if you are ready to discuss
the consequences of the contract termination”.
7. On 10 June 2020, the club sent the assistant coach a letter referring to the email of 9 June
2020 and the fact that the assistant coach did not show up at the club’s premises on 10 June
2020.
8. On 11 June 2020, the assistant coach’s legal representative requested the club to provide
explanations as to why he was suspended from his activities, why he was replaced by another
coach, why he was asked to leave the club premises on 8 June 2020 and why the club’s
Sport Director told the coach in a Whatsapp conversation that he was no longer a part of
the team.
9. On 17 June 2020, the club sent an official letter to the assistant coach with the
following content:
“At no time was it served (formally or informally) on the coaches that the club wished to
terminate its contractual relationship with the coaches.
(…)
On June 9, 2020, your clients did not show up for work. On June 9, 10 and 11, the
Club, in desperation, summoned the coaches by official mail. At no time did Mr Lopez and
Mr Orofino show up for these appointments, as the club received confirmation that they
had already left the town.
(…)
Your clients are saying loud and clear that the Club has hired a new coaching staff. This is
simply not true. On June 8, seeing that Mr. Lopez and Mr. Orofino were leaving the training
center, the club brought in a coach from the youth team (already under contract with the
club) to make up for the absence of your clients.
We would like to stress out that Thanh Hoa Football Club has always complied with all its
contractual obligations towards Mr. Lopez and Mr. Orofino.”
II. PROCEEDINGS BEFORE FIFA
10. On 3 July 2020, the club filed a claim for compensation for breach of contract against the
assistant coach before FIFA. Furthermore, on 9 July 2020, the assistant coach brought a
parallel claim against the club for outstanding remuneration and compensation for breach
of contract against the club. A summary of the parties’ positions detailed below.
a. The claim of the club
11. According to the club, the assistant coach breached the contract on multiple occasions.
12. In this regard, the club alleged that the assistant coach did not attend a post-game press
conference on 6 June 2020 because he was upset about the bad performance of the team.
The club also alleged that, once back in the dressing room, the assistant coach fought with
his players.
13. Secondly, the club stated that the assistant coach abandoned his place of work. The
assistant coach allegedly deliberately decided to leave the club's training centre on 8 June
2020 after his weekly meeting with the club, arguing that the management had verbally
informed him of its intention to remove him from the leadership of the first team, which
the club strongly denies.
14. On 9 June 2020, the club sent the assistant coach an email asking him to resume his duties
on 10 June 2020.
15. On the same date, the club received an official correspondence from the assistant
coach’s lawyers. In this letter, to the club's great surprise, the assistant coach informed the
club that, in his view, there was no longer any contractual relationship between them,
arguing that the assistant coach had been suspended from his duties and replaced by
another coach. These allegations are strongly disputed by the cub. Thus, the club concludes
that on that date, i.e. 9 June 2020, the assistant coach terminated the contract without just
cause.
16. Furthermore, the club held that, by not presenting himself to the club from 8 June 2020
until he left the country, there is no doubt that the assistant coach decided to unjustly
terminate his contract with the club, this even though the club had asked him to appear on
several occasions in order to fulfil his contractual obligations.
17. Equally, the club stated that, by sending two formal notices to the assistant coach, it had
clearly shown its willingness to continue the contractual relationship. In particular, the club
underlined that no Whatsapp message, indicating the dismissal of the assistant coach, had
been sent by any official club representative. In contrast, by deciding not to attend to more
than five training sessions and one official game, leaving first the club city and then the
country, the assistant coach has shown his willingness not to fulfil his obligations.
18. The club further underlined that the club has clearly invited the assistant coach on numerous
occasions to discuss the matter, however the sole response of the assistant coach to this
request to talk has been fake allegations, total absence and the explicit termination dated
June 2020.
19. In light of the above, the club made the following requests:
Compensation for the value of the remaining contract:
Remaining salary June 2020-December 2020 (art. 1.4 employment agreement):
USD 17,500 before taxes, (7x 2.500,00)
Remaining salary January 2021-October 2021 (art. 1.4 employment agreement):
USD 25.000,00 before taxes, (10x 2.500,00)
Sub-total amount: USD 42,500
Additional compensation
“Furthermore, and subject to the early termination of the contract being due to
overdue payables, the Club shall be entitled to an Additional Compensation of
7.500,00 USD (= 3 months salary) in accordance with article 17 FIFA RSTP.”
To award interests calculated at 5% p.a. on the amount requested for compensation from
the day current claim was lodged, until the day the sums are effectively paid;
In accordance with Article 17 para 3of the RSTP apply a sporting sanction against the
assistant coach;
On the basis of article 17.2 of the FIFA regulations, any new club engaging the
respondent shall be jointly and severally liable.
b. The claim of the assistant coach
20. The assistant coach recounted his own version of certain facts leading up to the termination
of the employment relationship as follows.
21. During the season 2020, the team lost three matches in a row in the V. League on 8 March,
15 March and 6 June 2020.
22. On 7 June 2020 the team returned to Thanh Hoa City from an away game. The assistant
coach returned to Thanh Hoa City with the team, however he went home, whereas the rest
of the team, apart from the Head Coach, who was arriving later that day, was told to come
to the stadium.
23. Later that day, the assistant coach found out from the media that the club’s management
had held a meeting with the team regarding his status without notifying him, wherein it
states that all players had agreed that the assistant coach should be dismissed and that the
Chairman would announce said dismissal the following day.
24. In this regard, the assistant coach held that the club maliciously held a meeting in his and
the head coach’s absence with a purpose to make a decision on both coaches’ dismissal
without listening to their position and to present the termination of the contract in the
media as an alleged conflict between the coaches and the team.
25. The assistant coach referred to a press article dated 7 June 2020 which announced that he
was dismissed along with the Head Coach: “After three consecutive defeats in the
V.League, Thanh Hoa was still deep in the bottom of the rankings and the club director
decided to fire the Italian coach. This also means that assistant Orofino Salvatore will also
follow Fabio Lopez to leave Thanh Hoa”.
26. On the same evening, 7 June 2020, in another media source the new head coach of the
Club, Mr Nguyen Thanh Cong (the “New Coach”), and his assistant, Mr Mai Xuan Hop (the
“New Assistant Coach”), were announced.
27. The assistant coach claimed that, despite the announcement of his and the head coach’s
dismissal in the media, he was not formally notified of the termination of the contract. The
club translator informed him that, together with the head coach, he was convened to a
meeting on 8 June 2020 at 9:30. However, in the early morning of 8 June 2020, the Sports
Director informed the head coach that the meeting would take place at 8:00. In the eyes
of the assistant coach, the club showed him disrespect and was playing some tactics by
changing the time of the meeting just 20 minutes before its start, in order to create the
illusion of a disciplinary offence on his part.
28. On 8 June 2020, both coaches came to the meeting, where they were notified that a new
coaching staff would replace them. During this meeting, he was presented with the minutes
of said meeting wherein it stated that the parties had mutually agreed to terminate the
contract. The assistant coach refused to sign these minutes.
29. The assistant coach was then presented with a second version of the minutes, wherein it
stated that both coaches were suspended as from 8 June 2020 until the parties agree to
terminate the contract. The coaches refused to sign this document as well.
30. Later in the evening of 8 June 2020, the new head coach and new assistant coach were
presented to the team. This presentation of the new team of coaches was covered in the
press and published on the club’s Facebook page. The new coach and his staff held a
training session of the team instead of the coach and the assistant coach.
31. On 10 June 2020, the assistant coach received an email from the club, according to which
the club requested him “to present at the Club’s Office for duties at 9h00 on 11.06.2020.
If the named persons continue this streak of absence, it is assumed to be a severe violation
discipline regarding the Obligations stated in the Labor Contract concluded”.
32. On the same day, on 10 June 2020, the assistant coach’s lawyer replied to the club by email,
asking the club to clarify which duties they expect him to fulfil, since he was suspended
from his work and replaced by another coach.
33. On 11 June 2020, the assistant coach received a letter from the club dated 10 June 2020,
in which the club stated: “the Club would like to emphasize that not until the Labor Contract
ends, your presence for duties at the Club is mandatory”.
34. On 11 June 2020, the assistant coach’s lawyer requested the club to reinstate him in his
position on 15 June 2020 at the latest. Despite the fact that the assistant coach wished to
be reinstated, the club ignored this request by means of which it de facto confirmed
termination the coach’s contract.
35. In the meantime, on 11 June 2020, local media published a report about the training session
of the club’s team, and the pictures published in media clearly demonstrate that the new
coach was present at the training session along with the club’s Chairman.
36. On 12 June 2020, the club’s team had a match against Sông Lam Nghệ An, and the new
coach was indicated in the Match Protocol as the head coach of the club.
37. As a result of the club’s behaviour, both coaches understood that the club was not
interested in their services, and therefore they came to the conclusion that the club de facto
terminated their employment contracts.
38. Having received a letter of the club’s lawyer dated 17 June 2020, the assistant coach
understood that a constructive dialogue with the club was not possible. In this regard, the
assistant coach refuted all arguments included in such letter. In particular, the assistant
coach denied having terminated the contract, since it was the club which had suspended
him, while he had repeatedly requested him to explain what his role in the club should be
following his replacement, and requested to be reinstated in his position, to no avail.
39. Considering the above-described facts, the assistant coach is of the opinion that the club
terminated the contract without just cause through its behaviour. Indeed, the assistant
coach believes that he was effectively deprived the possibility to comply with his contractual
obligations as he was suspended by the club from his work duties and another person was
immediately hired in his position, which cannot be construed other than a breach of the
contract by the club. In this regard, the assistant coach referred to the minutes of the
meeting held on 8 June 2020. Furthermore, the fact that the club effectively terminated the
employment relationship with him was widely covered by the media.
40. As to the absence of a just cause, the assistant coach stated that it is evident that the club
terminated the contract due to its discontent with the team’s results; hence the reason
based on which the contract was terminated by the cub constitutes a subjective assessment
of the club rather than an objective criterion and cannot be deemed a just cause or a valid
reason to terminate. Equally, the assistant coach, referring to jurisprudence of FIFA’s
deciding bodies, underlined that the termination of an employment contract is always an
ultima ratio measure and that the club did not provide any warning to the assistant coach
prior to terminating the contract.
41. The assistant coach denied all accusations of being absent since he was suspended from
work as of 8 June 2020 until the club requested him on 10 June 2020 to present himself at the club’s office; however the club did not proceed to specify which duties exactly the
assistant coach was expected to fulfill after he had been suspended from work and the new
coach had been appointed.
42. Finally, the assistant coach claimed that the club had not paid him the salaries of March and
April in full without any valid reason, whereas it owes him salary of May 2020 and as from
1 to 7 June 2020.
43. In light of the above, the coach made the following claims:
USD 41 836,02 as compensation for breach of contract, representing the residual
value of the contract (23 days of June 2020 + 15 x USD 2,500 + 30 days of October
2021) plus 5% interest p.a. as of 8 June 2020 until the date of effective payment;
USD 750 as outstanding remuneration for March 2020, plus 5% interest p.a. as of
26 April 2020 until the date of effective payment;
USD 1,000 as outstanding remuneration for April 2020, plus 5% interest p.a. as of
26 May 2020 until the date of effective payment;
USD 2,500 as outstanding remuneration for May 2020, plus 5% interest p.a. as of
26 June 2020 until the date of effective payment;
USD 583.33 as outstanding remuneration for the period from 1 June 2020 until 7
June 2020, plus 5% interest p.a. as of 8 June 2020 until the date of effective
payment.
c. Club’s answer to the assistant coach’s claim
44. In its replica to the assistant coach’s claim, the club insisted in its claim and provided some
further accounts as to the facts of the dispute.
45. In this regard, the club alleged that on 6 June 2020, after the defeat against Quang Nam
team, the assistant coach decided not to attend the post-game press conference,
deliberately damaging the image of the club. It is also reported that once back in the
dressing room, the Head Coach fought with his players and Mr Orofino did not do anything
to stop the fight.
46. On 8 June 2020, after mentioning to the Direction his intention to leave the club during a
meeting, the assistant coach voluntarily left the club’s training centre.
47. According to the club, under no circumstances can it be considered that the discussions
between Mr Lopez and the club also concern Mr Orofino. The club referred in this context
to the discussions between the head coach and the Sport Director. The club added that the
assistant coach never received any Whatsapp messages from the club.
48. The club underlined that there is no doubt that it has, on several occasions, confirmed the
assistant coach in his position and asked him to attend several meetings and training
sessions both by WhatsApp and official letters.
49. With respect to the assistant coach’s argument that he learnt of his dismissal through the
press, the club held that such argument must be rejected as press articles rely purely on
speculations. Moreover, the club stressed that the press articles are dated 7 June 2020 while
the club had sent formal notices on 9 and 10 June 2020 for the assistant coach to resume
his duties.
50. As to the meeting of 8 June 2020, the club stated that during this meeting, it told the
assistant coach that his dispute with the players and his absence at the press conference
were serious breaches of his employment contract. The club asked the assistant coach not
to behave like that in future. During this meeting, the assistant coach allegedly indicated to
the club his intention to leave his position, and proposed to the club to reach an amicable
agreement to terminate the contract. Discussions to that effect then took place, which is
confirmed by the minutes of the meeting. In this respect, the club stated that, contrary to
the assistant coach’s misleading allegations, the minutes of a meeting merely constitutes a
neutral report of the discussions held during the meeting.
51. The club held that no agreement was reached at this meeting and that there is therefore
no doubt that the parties were still bound by their contract at that time. It is also for this
same reason that the parties did not sign the minutes of the meeting, thus depriving these
documents of any legal value.
52. In continuation, the club once again denied having expressed its desire to end its
relationship with the assistant coach at the meeting on 8 June 2020 and that the only
option the club had to make up the absence of his assistant coach was to bring in a coach
from the club’s youth team. Doing so the club confirms that a new coach was not hired.
53. The club underlined that Mr Nguyen Thanh Cong was hired as Director of Thanh Hoa Young
Football Training Center starting on 1 January 2020.
54. The assistant coach did not prove that the club denied him access to the training facilities,
nor did he prove that the club had terminated the contract. The club thus insisted in its
position that it was the assistant coach who had terminated the contract without just cause.
d. Assistant coach’s answer to the club’s claim & amended claim
55. The assistant coach equally insisted in his claim and denied the club’s allegations, which, in
his opinion, are not supported by any evidence.
56. For instance, according to the assistant coach, the club does not adduce any evidence to
the alleged facts that “the coach fought with his players” or that he mentioned to the management “his intention to leave the Club during a meeting”, therefore these alleged
facts shall not be taken into account.
57. Equally, the assistant coach dismissed the club’s general statement as to the fact that it was
his initiative to stop attending the club’s training sessions and leave the country (which is
not true as the assistant coach is still in Vietnam) whereas the club had no intention to end
the contractual relationship with him.
58. Furthermore, the assistant coach provided an alleged audio recording of the
aforementioned meeting on 8 June 2020, which, in his opinion, demonstrates that he did
not in any way express his intention to leave the club and terminate the contract, but instead
tried to convince the club management to continue the employment relationship and only
after the club’s refusal he offered to settle the dispute amicably, which was also ignored by
the club.
59. As for the WhatsApp messages sent by club’s Sport Director, the assistant coach is of the
opinion that the messages are a clear indicator that the club was not satisfied with the head
coach’s and his work.
60. The coach referred extensively to its previous submission and concludes that it was the club
which terminated the contract without just cause, through its “conclusive behaviour”.
61. The assistant coach insisted in his claim for compensation and dismissed the club’s claim for
compensation as erroneous.
e. Club’s additional statement
62. In an additional statement, the club explained that, in March 2020, Vietnam, like the rest
of the world, was hit hard by the covid-19 pandemic.
63. In this regard, the Vietnamese Prime Minister announced, in his Directive No. 16/CT-TTg
(March 2020), the implementation of emergency measures in prevention of pandemic
Covid-19, in particular the possibility for public and private companies to take all necessary
measures to limit the health and economic impact of the crisis (including salary reductions).
64. In addition to this, the Management Board of Vietnam Professional Football League
decided, in its Notice No. 37 /TB-BDH to suspend the league and authorize Club to proceed
to a 30% salary reduction for each employee as a support against Covid-19.
65. It was on this basis that the club took the decision to reduce of 30% the salaries of all its
employees (coaches, and both local and foreign players) for March and May.
66. In the club’s view, “the fact that it is only today that mention is made of these so-called
"outstanding salaries" is, once again, justified by the bad faith of the opposing party. Indeed, Mister Orofino was perfectly aware of the exceptional measures taken by the
government, the league and the club concerning these salary cuts”. The club added that
the assistant coach never indicated his intention not to comply with the measures taken,
whereas he has not provided evidence that he put the club in default regarding outstanding
salaries.
67. With respect to the salary for the month of May 2020, the club held that in fact it had
decided to pay his staff in full for this month, even though the league remained suspended,
and that the assistant coach did receive this salary.
f. Assistant coach’s final comments
68. In his final comments, the coach insisted in the fact that the documents provided by the
club that allegedly serve as the basis for reduction of the remuneration were never provided
to him and that he has never agreed to any reduction whatsoever. Besides, according to
the coach, the cub’s allegation that he was “informed of these measures by the club and
the league” and “was perfectly willing to make the effort given the situation” are groundless
and simply not true.
69. Without prejudice to the above, the assistant coach acknowledged receipt of the salary for
May 2020 in the amount of USD 2,500 and withdrew the corresponding request for relief.
For the avoidance of doubt, the rest of the request remains the same as in the assistant
coach’s reply.
70. Finally, the assistant coach informed the FIFA administration that, following the termination
of the contract with the club, he remained unemployed.
III. CONSIDERATIONS OF THE SINGLE JUDGE OF THE PLAYER’S STATUS
COMMITTEE
a. Competence and applicable legal framework
71. First of all, the Single Judge of the Players’ Status Committee (hereinafter: the Single Judge)
analysed whether he was competent to deal with the case at hand. In this respect, it took
note that the present matter was presented to FIFA on 3 July 2020 and 9 July 2020
respectively and submitted for decision on 26 January 2021. Taking into account the
wording of art. 21 of the January 2021 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.
72. Subsequently, the Single Judge referred to art. 3 par. 1 of the Procedural Rules and observed
that in accordance with art. 23 par. 1 and 4 in combination with art. 22 lit. c) of the
Regulations on the Status and Transfer of Players (edition January 2021), he is competent
to deal with the matter at stake, which concerns an employment-related dispute with an
international dimension between an Italian coach and a Vietnamese club.
73. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Player (edition January 2021), and
considering that the present claims were lodged on 3 July 2020 and 9 July 2020 respectively,
the June 2020 edition of said regulations (hereinafter: the Regulations) is applicable to the
matter at hand as to the substance.
b. Burden of proof
74. The Single Judge recalled the basic principle of burden of proof, as stipulated in art. 12
par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of
an alleged fact shall carry the respective burden of proof. Likewise, the Single Judge stressed
the wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties.
c. Merits of the dispute
75. His competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. 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 considers pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
76. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that both parties accuse each other and hold each other
liable for the termination of their employment relationship, hence the two claims filed
almost simultaneously.
77. The Single Judge, therefore, established that his main task in the present matter is to
determine when the actual termination of the contract occurred, who terminated it, and
who is to be held liable for such termination, with all the consequences that potentially
arise from terminating a contract with or without just cause.
78. In this regard, having paid close attention to the parties’ respective allegations and
arguments as well as the evidence on file.
79. To briefly summarise the parties’ antagonistic positions, the assistant coach alleges that the
club expressed its will to terminate the contract through conclusive behaviour, by holding
a meeting in his absence and discussing his dismissal, offering him an agreement to
mutually terminate the contract in a meeting held on 8 June 2020, and finally replacing him
with another coach.
80. The club, for its part, alleges that the assistant coach was absent from training as from 8
June 2020 and that he thereafter never returned to the club, despite the club’s
several summons. With respect to the meeting held on 8 June 2020, the club alleges that
it was the assistant coach who expressed his intention to terminate the contract. The club
concludes that the assistant coach terminated the contract without just cause with his letter
dated 9 June 2020, where he expressed the view that the employment relationship
had ceased.
81. The Single Judge, in this respect, noted that the parties’ respective allegations are not
supported by very strong evidence. Indeed, the assistant coach relies heavily on press
articles, which point to the fact that he would have been dismissed by the club and replaced
by a new coach. The club, for its part, relies on its default notices dated 9 and 10 June
2020, which point to the assistant coach’s absence from training for a few days only.
82. Furthermore, the Single Judge pointed out that the alleged recording of the meeting held
on 8 June 2020 is inconclusive as it is impossible to verify its authenticity, the date on which
the recording took place, or who is taking part in such meeting.
83. Having said this, the Single Judge concluded that the evidence at his disposal rather
supports the thesis that the club had lost interest in the assistant coach’s services.
84. In particular, it remains uncontested that as of 8 June 2020, a new coach was hired by the
club and immediately started his duties.
85. Furthermore, the Single Judge held the view that the club’s default notices appear to have
been issued pro forma, without any real intention to allow the assistant coach to return to
the club.
86. Finally, the minutes of the meeting held on 8 June 2020 consist in an offer to settle the
matter, which the assistant coach has not agreed to and which, in turn, led to the drafting
of a second version of minutes of the meeting. In the Single Judge’s opinion, the fact that
several drafts of the minutes of this meeting were issued indicates that the minutes do not
reflect the actual content of the meeting but rather that these were drafted with the
intention to find a resolution to the dispute, which did not occur.
87. In view of the above, there is no evidence that, contrary to the club’s allegations, during
the meeting held on 8 June 2020, the assistant coach had expressed his intention to
terminate the contract. At best, the minutes of the meeting in question point towards a
discussion as to the settlement of the dispute, but not to the fact that one party or the
other had officially terminated the contract during this meeting.
88. In conclusion, the Single Judge held that, based on the elements on file, he could determine
that the club de facto terminated the contract with the appointment of a new coach to
replace the assistant coach on 8 June 2020, and that nothing indicates that the club
intended to pursue the employment relationship beyond that date. In particular, the Single
Judge reiterated that the club’s default notices dated 9 and 10 June 2020 appeared to have
been issued pro forma, after the assistant coach had been replaced with another coach.
89. With this established, the Single Judge referred to the jurisprudence of the Players’ Status
Committee, according to which only a breach or misconduct which is of a certain severity
justifies the termination of a contract without prior warning. 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
assure 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 always only be an ultima ratio.
90. With the aforementioned principle in mind, the Single Judge remarked that the club did
not invoke any valid reason as to why it proceeded to replace the assistant coach in his
functions as of 8 June 2020, thereby terminating the contract. Indeed, the Single Judge
noted that the default notices dated 9 and 10 June 2020 invoking the assistant coach’s
absence since 8 June 2020 cannot be relied upon, since the assistant coach’s absence was
a direct consequence of his replacement as a coach. In this regard, the assistant coach
explained the reasons for his absence by exchange of emails with the club, and requested
for a validation as to his employment status with the club, to no avail.
91. In continuation, according to the Single Judge, the fact that the assistant coach was
replaced by another coach is a direct consequence of the head coach, Mr Fabio Lopez’s,
own replacement. In this regard, the Single Judge was eager to emphasise that the club
cannot validly invoke any wrongdoing on the head coach’s part as a justification to dismiss
another coach from the coaching team.
92. In view of the above, the Single Judge concluded that there was no just cause for the club
to unilaterally terminate the employment relationship between the parties and that,
therefore, the club had breached the employment contract without just cause.
93. Having established that the club is to be held liable for the breach of the contract without
just cause, the Single Judge went on to analyse the consequences of such breach.
94. In this regard, the Single Judge first decided that, since it is established that the club
terminated the contract without just cause, this entails that the club’s claim for
compensation for breach of contract must be rejected.
95. With respect to the assistant coach’s monetary claim, the Single Judge took note of the latter
party’s request for outstanding remuneration, namely the requests for the salaries of March
and April 2020 as well as 7 days of June 2020, plus interest.
96. With respect to these salaries, the club, for its part, held that that it had applied a 30%
reduction to the month of March 2020 in accordance with Vietnamese law and the directives
of the Vietnamese League following the Covid-19 outbreak.
97. With the aforementioned arguments of the club in mind, the Single Judge recalled that, in
light of the worldwide Covid-19 outbreak, FIFA issued a set of guidelines, the Covid-19
Football Regulatory Issues, which aim at providing appropriate guidance and
recommendations to member associations and their stakeholders, to both mitigate the
consequences of disruptions caused by COVID-19 and ensure that any response is
harmonised in the common interest. Moreover, on 11 June 2020, FIFA issued an additional
document, the FIFA Covid-19 FAQ, which provides clarification about the most relevant
questions in connection with the regulatory consequences of the COVID-19 outbreak and
identifies solutions for new regulatory matters. Those two documents will hereinafter be
referred to as “the FIFA Covid-19 guidelines”.
98. In continuation, the Single Judge emphasised that the FIFA Covid-19 guidelines aim, in
particular, at tackling the situation regarding agreements which cannot be performed as the
parties originally anticipated. In this regard, the guidelines identify circumstances under
which a unilateral variation of the agreement may be justified. Precisely, the guidelines
mention the following:
“Unilateral decisions to vary agreements will only be recognised where they are made in
accordance with national law or are permissible within CBA structures or another collective
agreement mechanism.
Where:
a. clubs and employees cannot reach an agreement, and
b. national law does not address the situation or collective agreements with a players’ union
are not an option or not applicable,
Unilateral decisions to vary terms and conditions of contracts will only be recognised by
FIFA’s Dispute Resolution Chamber (DRC) or Players’ Status Committee (PSC) where they
were made in good faith, are reasonable and proportionate.
When assessing whether a decision is reasonable, the DRC or the PSC may consider, without
limitation:
a. whether the club had attempted to reach a mutual agreement with its employee(s);
b. the economic situation of the club;
c. the proportionality of any contract amendment;
d. the net income of the employee after contract amendment;
e. whether the decision applied to the entire squad or only specific employees.
Alternatively, all agreements between clubs and employees should be “suspended” during
any suspension of competitions (i.e. suspension of football activities), provided proper
insurance coverage is maintained, and adequate alternative income support arrangements
can be found for employees during the period in question”.
99. Having recalled the contents of the FIFA Covid-19 guidelines, the Single Judge determined
that these guidelines are applicable to the present matter, which concerns the unilateral
variation by the club of the contract concluded between the parties. Therefore, the Single
Judge analysed the justification behind the club’s unilateral variation of the contract while
bearing in mind the aforementioned guidelines.
100. In this context, the Single Judge first outlined that the club had not provided any evidence
that such decision was made in accordance with national law. In particular, the club did not
produce an excerpt of the relevant Vietnamese law to support its allegation.
101. Equally, there is no evidence that the unilateral variation was even discussed with the
assistant coach. Consequently, the Single Judge concluded that the club did not make any
good faith attempt to find an agreement with the assistant coach in respect of the relevant
salary reduction, which constitutes the first and primary criteria for the deciding body to
consider the validity of a salary reduction.
102. In view of the above, the Single Judge decided that the club could not validly proceed to a
unilateral variation of the contract, and consequently, the salary for March 2020 should have
been paid to the assistant coach in full.
103. Furthermore, the Single Judge could not find any valid reason invoked as to the partial
payment of the assistant coach’s salary for April 2020, and consequently, the said salary
must also be paid in full.
104. In conclusion, the Single Judge decided that, in accordance with the principle of pacta sunt
servanda, the club must pay the assistant coach outstanding remuneration in the total of
USD 1,750 plus 5% interest as follows:
o 5% interest p.a. on the amount of USD 750 as from 26 April 2020 until the date of
effective payment,
o 5% interest p.a. on the amount of USD 1,000 as from 26 May 2020 until the date
of effective payment.
105. Finally, with respect to the assistant coach’s claim for outstanding remuneration regarding
7 days of June 2020, the Single Judge held that, in accordance with his usual practice, and
since the contract was breached on 8 June 2020, the entire month of June 2020 shall be
considered in the calculation of compensation for breach of contract.
106. The aforementioned having been established, the Single Judge turned his attention to the
calculation of the compensation for breach of contract to be awarded to the assistant coach
in light of the club’s breach of contract without just cause.
107. The Single Judge referred to the jurisprudence of the Players’ Status Committee, according
to which, in the absence of an agreement of the parties on the payment of compensation,
the amount of compensation shall be calculated 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.
108. Applying the aforementioned criteria to the case at hand, Single Judge first of all took into
account the remuneration due to the assistant coach in accordance with the contract as well
as the time remaining on the same contract, along with the professional situation of the
Claimant after the early termination occurred.
109. In this respect, the Single Judge pointed out that at the time of the termination of the
employment contract on 8 June 2020, the employment contract would run for another 17.5
months. Consequently, taking into account the financial terms of the contract, the Single
Judge concluded that the remaining value of the contract as from its early termination by
the assistant coach until the regular expiry of the contract amounts to USD 42,500.
Consequently, such amount shall serve as the basis for the final determination of the amount
of compensation for breach of contract.
110. In continuation, the Single Judge remarked that, following the early termination of the
employment contract at the basis of the present dispute, the assistant coach remained
unemployed and was, therefore, not able to mitigate his damages.
111. In conclusion, and having fully analysed the entire and specific circumstances of the present
matter, the Single Judge decided that the club shall pay the assistant coach compensation
for breach of contract in the amount of USD 42,500, which the Single Judge 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. 9 July 2020.
112. The Single Judge concluded his deliberations by establishing that any further claims of the
assistant coach are rejected.
d. Costs
113. In continuation, 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 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.
114. However, in this respect, the Single Judge referred to art. 18 par. 1 i. of the Procedural Rules
according to which “For any claim or counter-claim lodged between 10 June 2020 and 31
December 2020 (both inclusive), no procedural costs shall be levied”.
115. Thus, considering that the present claim was lodged in the relevant period, no procedural
costs shall be awarded in this matter.
IV. DECISION OF THE SINGLE JUDGE OF THE PLAYERS' STATUS
COMMITTEE
1. The claim of the Claimant 1 / Respondent 2, Salvatore Orofino, is partially accepted.
2. The Claimant 2 / Respondent 1, Thanh Hoa Football Club, has to pay to the Claimant 1 /
Respondent 2 the following amounts:
- USD 1,750 as outstanding remuneration plus 5% interest p.a. as follows:
o 5% interest p.a. on the amount of USD 750 as from 26 April 2020 until the date
of effective payment,
o 5% interest p.a. on the amount of USD 1,000 as from 26 May 2020 until the date
of effective payment,
- USD 42,500 as compensation for breach of contract plus 5% interest p.a. as from 9 July
2020 until the date of effective payment.
3. Any further claims of the Claimant 1 / Respondent 2 are rejected.
4. The claim of the Claimant 2 / Respondent 1 is rejected.
5. The Claimant 1 / Respondent 2 is directed to immediately and directly inform the Claimant 2 /
Respondent 1 of the relevant bank account to which the Claimant 2 / Respondent 1 must pay the
due amount.
6. The Claimant 2 / Respondent 1 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).
7. In the event that the amount due, plus interest as established above, is not paid by the Claimant
2 / Respondent 1 within 30 days as from the notification by the Claimant 1 / Repsondent 2 of
the relevant bank details to the Claimant 2 / Respondent 1, the following consequences shall arise:
1. In the event that the amount due in accordance with this decision is not paid within the
granted deadline, the present matter shall be submitted, upon request, to the FIFA
Disciplinary Committee.
8. This decision is rendered without costs.
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