F.I.F.A. – Players’ Status Committee / Commissione per lo Status dei Calciatori – coach disputes / controversie allenatori (2020-2021) – fifa.com – atto non ufficiale – Decision3 November 2020

Decision of the

Single Judge of the Players' Status Committee

passed on 3 November 2020,

regarding an employment-related dispute concerning the coach Vladimir Maminov

BY:

Johan van Gaalen (South Africa), Single Judge of the PSC

CLAIMANT:

Vladimir Maminov, Russia

Represented by Mr Egiyan Arthur Mikhailovich

RESPONDENT:

FC Aktobe, Kazakhstan

Represented by SILA International Lawyers

I. FACTS

1. On 13 January 2020, the club sent an email to the coach with the subject “Draft employment contract”, containing the attachment “File of the draft employment contract”.

2. The employment contract between the coach and the club, dated 15 January 2020, refers to the coach’s role as Head Coach and is valid as from the date of signature until 31 December 2020 (cf. hereby attached). In his claim, the claimant explained that the club kept all the signed copies of the contract and never provided him with his copy.

3. According to art. 3 of the contract, the club undertook to pay the coach a monthly salary of Kazakh Tenge (KZT) 5,000,000.

4. As per art. 5.2 of the contract, the club undertook to provide the coach with “the basic paid annual leave of 28 calendar days”.

5. On 14 January 2020, the club announced on its social medias the arrival of the coach as follows (translated from Russian): “Today the Russian specialist Vladimir Alexandrovich Maminov has officially signed the employment contract with FC “Aktobe”. The Head Coach of the “red-whites” has already started to recruit the roster for the team and he will soon go the first training camp with the team to Turkey. The official introduction of the head coach will take place after the first training camp”.

6. In various social media posts following this one, the coach was referred to as the new “head coach”.

7. On 17 February 2020, while the first team of the club was attending a camp in Turkey with 4 friendly matches, the club announced that the coach “left the team in Turkey” and that “After the first training camp the situation was questionable. The results of the test matches were disastrous, the level of potential new players, say the least of it, was disappointing, there was tension is in the air in the team.” As such, the club stated that the club “decided to suspend the head coach from work” and that “In the near future a new head coach will be introduced to the team”.

8. On 18 February 2020, the club announced the arrival of a new head coach in the person of Mr Alexey Petrushin.

9. On 16 March 2020, the coach requested the payment of the outstanding amount of KZT 6,500,000 corresponding to the pro rata salaries of January and February 2020 (15 days and 11 days respectively), as well as KZT 4,666,666.67 as the right of annual leave of 28 days. Moreover, the coach requested the payment of the residual value of the contract for the termination without just cause by the club in the amount of KZT 2,250,000 (9 days worked in February 2020) and DZT 50,000,000 corresponding to salaries as from March to December 2020. Finally the coach requested the payment of interests on the aforementioned amounts and specific documents related to the work performed for the club.

10. On 10 April 2020, the club replied informing the coach that he had only worked 29 days and that it would be ready to pay a total amount of KZT 11,320,342.

11. On 18 May 2020, the coach proposed to divide the compensation and thus made the following proposal to the club: KZT 14,490,000 (salaries of 18 February to 31 May) payable until 31 May 2020 and KZT 29,400,000 for the salaries as from 1 June until 31 December 2020 payable in monthly instalments.

12. On 14 July 2020, the coach lodged a claim before FIFA against the club.

13. In his claim, the coach first stated that his net salary was KZT 4,200,000 (KZT 5,000,000 gross).

14. With regard to the copy of the contract, the coach asked FIFA to force the club to provide a signed copy of the contract. In this regard, the coach considered that the club, the Kazakhstan FA and Kazakhstan Professional League must have a copy of the signed employment contract. Notwithstanding the foregoing, the coach underlined that all the publications of the club and the correspondence exchanged demonstrate that a contractual relationship existed between the parties. To prove the conclusion of the contract, the coach submitted a personal witness statement, a witness statement of Goran Veljkovic, former General Manager of the club, publications of the club on social medias, audio recordings of the coach discussing with the club’s Chairman and of a meeting, both dated 17 February 2020.

15. In this regard, the coach provided a verbatim of the audio recordings and of the meeting . As such, according to the verbatim of the conversation between the coach, Mr Goran Veljkovic (former General Manager) and Mr Arthur Smagulov (Chairman of the club’s Board), the latter allegedly says “Goran, I am dismissing him, that is all, you can close your mind to this fact, that is all. I will not talk about anything now”. The verbatim of the meeting which allegedly took place on 17 February 2020 with Mr Arthur Smagulov, the coach and the players, allegedly read as follows:

“Mr. Arthur Smagulov: Just this is such silence in response. I have arrived today, um ... the night before yesterday. I have already met everybody I should have met. Everyone knows whom I met. The management set clear goals and objectives for the team. I came to perform them. Unfortunately, there are good moments, there are bad moments. At the moment, I am announcing to you that there is change of coach, the head coach of the team. The new coach will arrive tonight. There are positive, there are negative moments. Right now, this is like that. Today, new players will arrive at the location where they will be on tryout. Tryout should be objective and relevant. Generally, the point of the meeting is as follows. Understand me correctly, I work in the interests of you and in the interests of the team, in the interests of the headship of the region, the akim set clear goals, I perform them. If you have any questions, ask immediately. Now I will be present at every training session, I will be here until the team is recruited. Generally, I told you everything, that I wanted to say. Do you have any questions?

Mr. Vladimir Maminov: Do you have any questions? Nice. I have questions. One of the football players: <difficult to understand>

Mr. Vladimir Maminov: Yes, ask, Jas. One of the football players: On the coaching staff... is it all decided?

Mr. Arthur Smagulov: This is decided. A high ground decision. One of the football players: <difficult to understand>

Mr. Arthur Smagulov: We will now talk, consult substantively on the coaching staff, on physical training, on the coach of goalkeepers. As for the rest of the staff, we all remain as we were. What else?

Mr. Vladimir Maminov: Good. I have a question. Why are we being dismissed? What are the causes?

Mr. Arthur Smagulov: Poor work.

Mr. Vladimir Maminov: What do you mean under poor work? What exactly is not satisfactory?

Mr. Arthur Smagulov: The result is evident.”

16. Furthermore, the coach explained that the club did not submit documents which formalised the termination of the contract in violation of art. 61 of the Labor Code of the Republic of Kazakhstan (hereinafter: the Labor Code). However, the coach referred to CAS jurisprudence, according to which the publication by the club on its social media of the termination of the contract of the coach and the hiring of a new head coach constitutes a formal termination of the contract. In this regard, the coach emphasised that although the club’s publication mentioned that he was “suspended” “from work” he was actually dismissed since the club simultaneously announced the hiring of a new head coach.

17. In addition, the coach underlined that the club also purchased a flight ticket Antalya-Moscow dated 19 February 2020 for the coach to return to Russia.

18. Moreover, the coach considered that the club did not have any grounds as per art. 48 of the Labor Code.

19. Therefore, the coach considered that the club terminated the contract without just cause.

20. In particular, in its letter dated 10 April 2020, the club suggested to the coach to pay him compensation in the amount of KZT 6,000,000 thereby admitting that it terminated the contract without just cause. Also the club admitted that the coach worked for the club for a duration of 29 days.

21. In light of the above, the coach requested the following:

• Outstanding remuneration for the period 15 January to 17 February 2020:

• Compensation for the unused leave: according to Kazakh law and the Swiss Code of Obligations, employers must provide employees with basic paid annual leave (28 days in Kazakhstan and 20 days in CH). In case of a premature termination, the employer must pay compensation for the unused paid leave. In this regard, the coach underlined that the club recognised a debt of KZT 343,342 as unpaid paid leave in its letter. As such, the coach requested KZT 3,920,000 in this respect (KZT 4,200,000 / 30 * 28 days).

• Compensation for breach of contract:

• Additional compensation for the early termination of the contract: KZT 25,200,000 corresponding to 6 monthly salaries.

• Interest: the coach argued that the club must pay interest of 11.88% on the aforementioned amounts (9.5% is the refinancing rate in effect in Kazakhstan multiplied by 1.25% for violation of the terms of payment as per art. 113 of the Labor Code).

• Impose the payment of all costs of the proceedings and CHF 4,000 as coach’s legal costs on the club.

22. In its reply to the club, the club claimed that the contract between the parties “has never been signed”.

23. In this regard, the club first stated that “a party acting without a valid and binding contract does so at its own risk. Moreover, in such circumstances the relevant party is not excused from discharging its burden of proof” and that all the evidence submitted by the coach is speculative as it cannot be verified.

24. The club explained that the coach started working without signing a contract and that the parties “intended to sign a contract as soon as they come to an agreement on all the essential terms of the contract but were unable to reach an agreement”. Given that the coach invested time in his work, the club tried to find an amicable solution and was thus offered him a considerable amount that he refused.

25. The club asked for the claim to be rejected as one cannot claim compensation for breach of “a non-existing employment contract”.

26. The club claimed that it chose the coach as its new head coach but that they could not agree on the duration of the contract. As such, the coach wanted a contract until end of 2020 while the club only agreed to hire the coach for the duration of the preseason camp, i.e. mid-March, and then conclude a longer contract if satisfied. However, “the obligatory conclusion of the contract after preseason camps was not agreed between the Parties as well”, meaning that no contract was ever concluded.

27. The coach was only admitted on a “temporary basis to work without concluding an employment contract”.

28. The club agreed that the salary of KZT 4,200,000 net was the amount agreed upon in the course of the negotiations.

29. According to the club, on 17 February 2020, “long before the start of the first official match of the Club”, it informed the coach that “temporary work came to an end”.

30. When the coach put the club in default, the club explained that it was it offered the coach in good faith to pay him the salary due for the period worked and his annual paid leave, as well as “a voluntary compensation in the amount of KZT 6,000,000.”

31. With regard to the applicable law, the club was of the opinion that Kazakh law should apply subsidiarily instead of Swiss law.

32. The club maintained that the coach did not prove that the contract was ever signed and that the email sent by the club on 13 January 2020 actually contained the contract which was produced by the coach with his claim.

33. The mere fact that the contract lacks the signature of the parties, an essentialia negotii, was enough to establish that the contract is not valid. In this respect, the club referred to various DRC and CAS jurisprudence.

34. With regard to the evidence of the coach, the club held that the witness statements lack any value considering that Mr Goran Veljkovic was also dismissed on 17 February 2020 and that he was the person who had recommended the coach as Head Coach. The audio recordings should be inadmissible (without knowledge and permission, thus illegally obtained evidence with no prevailing public interest) and in any case do not allow to confirm that the alleged contract was ever concluded until 31 December 2020. As such, the club considered that “witness statements of the persons affiliated to the Coach do not confirm the conclusion (signing) of the contract or its duration”.

35. Furthermore, the club argued that the offers it made to the coach in its letter dated 10 April 2020 are no longer valid and binding given that the coach never accepted in full, without any reservation, the said offer (art. 1 of the Swiss CO – not mutual expression of intent).

36. Finally, the club contested the coach’s bad faith position whereby his “submissions regarding his financial statement are directed to create a false impression of the honourable PSC that there was a gross violation on the Club’s side, which cause deprivation of the Coach’s livelihood”. In that context, the club underlined that the coach was a former professional player and Head Coach of Lokomotiv Moscow.

37. Alternatively, should the PSC accept the coach’s claim, the club requested that the coach’s claim be limited as follows:

• Outstanding remuneration: limited to KZT 5,040,000

• Compensation for the unused leave: KZT 350,000

• Compensation for breach of contract: the club noted that the coach referred to Kazakh law whereby an employment contract can be concluded for the duration of a certain work. In this respect, the club held that the contract was to duly conduct preseason camps and thereby or no longer than 15 January 2020 until the day of the first official match (16 March 2020). Therefore, the maximum amount due as compensation is KZT 4,200,000.

• No additional compensation as this concept does not exist as per Kazakh law.

II. CONSIDERATIONS OF THE PLAYERS’ STATUS COMMITTEE

1. First of all, the Single Judge of the PSC (hereinafter also referred to as Chamber or DRC) 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 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. c) 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 a club.

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 14 July 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 of the PSC observed that, according to the claimant, a valid employment relationship as “Head Coach” existed as from 15 January 2020 until 31 December 2020.

6. Conversely, the Single Judge noted that the Respondent denied the existence of said contractual relationship, considering that the contract as provided by the Claimant was not signed.

7. In view of the above, the Single Judge observed that the first legal question to be answered in the present matter is whether the contract is valid and binding, taking into account the absence of signature of the parties.

8. In this regard, the Single Judghe recalled that in order for an employment contract to be considered as valid and binding, apart from the signature of both the employer and the employee, it should contain the essentialia negotii of an employment contract, such as (but not limited to) the parties to the contract and their role, the duration of the employment relationship and the remuneration agreed upon between the parties. After a careful study of the draft contract presented by the claimant, the members of the Chamber concluded that all such essential elements are included in the pertinent document, in particular, the fact that the contract establishes that the coach is entitled to receive remuneration, including a yearly salary and match bonuses, in exchange for his services to the club as Head Coach.

9. Having duly taken note of the aforementioned documentation presented by the Respondent and the Claimant, the Single Judge held that in order for him to be able to assume that the Claimant and the Respondent had indeed been bound through a contractual relationship with the terms as described by the Claimant, it had to be established, beyond doubt, by documentary evidence, that the said parties had indeed entered into a respective labour agreement, and, if so, under which terms.

10. Yet, the Single Judge noted that, in principle, the longstanding jurisprudence of the Players’ Status Committee strongly favors the submission of a mutually signed contract as the primary evidentiary basis to establish that the parties entered into an employment relationship. However, the Single Judge also wished to underline that, in specific and well-determined situations, there are other evidentiary circumstances that may sufficiently prove the existence of a contractual relationship. The Single Judge recalled in this respect that, indeed, the conclusion of a contract requires a mutual expression of intent by the parties, and this intend may well be express or implied.

11. With this idea in mind, the Single Judge referred to art 12 par. 3 and 7 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” and that “evidence shall be considered with free discretion, taking into account the conduct of the parties during the proceedings”.

12. In view of the above, the Single Judge underlined the particularities of the present matter and noted the following elements:

13. First of all, the Single Judge noted that it is undisputed that the parties acted based on the terms of the relevant contract.

14. Secondly, the Single Judge understood that the mere fact that the club offered to pay the coach salary and annual paid leave proves also the existence of an employment relationship between the parties;

15. Thirdly, the Single Judge observed that the club acknowledged that the coach was hired on a “temporary basis to work without concluding an employment contract”. In the opinion of the Single Judge, this behavior is by itself, absolutely against the regulations which require a that contracts shall be performed in writing.

16. Moreover, the Single Judge observed that the club failed to submit evidence proving that the coach was hired only for the pre-season via, for instance, another ad hoc, written contract valid for the pre- season. What is more, the Single Judge stated that, in principle, it does not make sense to have a contract only for a preseason unless it would be expressly agreed by the parties [for example: specific clause that the duration was limited to the preseason], which it is not the case in the matter at stake.

17. In view of the above, the Single Judge concluded that the parties had a valid employment relationship from 15 January 2020 until 31 December 2020, on the basis of the document presented by the Claimant in this respect.

18. The foregoing being established, the Single Judge went on to examine its termination, as alleged by the Claimant, and to decide on the consequences thereof.

19. Within this context, 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 fulfillment 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.

20. In doing so, the Single Judge recalled that it has remained undisputed that, on 17 February 2020, the club announced that the coach left the team in Turkey and the day after they appointed a new coach. The Single Judge noted that the Respondent even bought a ticket for the coach to leave Antalya on 19 February 2020.

21. Thus, considering that the parties were already under an employment contract since 15 January 2020, the employment relationship was terminated on 17 February 2020 by the club without just cause.

22. In this respect, the Single Judge observed that the Respondent failed to provide any substantive motivation to justify the unilateral termination of the contract. As a result, the Single Judge considered that the Respondent terminated the contract without just cause and it is consequently liable to pay compensation to the Claimant.

23. However, before entering into the calculation of the payable compensation, the Single Judge observed that, in addition to said compensation, the Claimant is entitled to his outstanding remuneration until the termination of the contract.

24. In this respect, the Single Judge observed, as per the claim of the Claimant, that it remains undisputed that the amounts of KZT 2,100,000 (part of the salary of January 2020) and KZT 4,200,000 (entire salary of February 2020), remain outstanding, for a total sum of KZT 6,300,000.

25. Consequently, in strict application of the principle of pacta sunt servanda, the Single Judge of the PSC established that the Respondent has to pay to the Claimant, the total outstanding amount of KZT 6,300,000, corresponding to the aforementioned amounts.

26. In addition, and taking into account the Claimant’s request as well as the longstanding jurisprudence in this respect, the Single Judge decided to award 5% interest p.a. on said amount as from the due dates until the date of effective payment.

27. 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.

28. 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 no such clause was provided in the contract.

29. Bearing in mind the foregoing, the Single Judge proceeded with the calculation of the monies payable to the coach under the terms of the employment contract until 31 December 2020.

30. In this regard, the Single Judge noted that, following the contract, the Claimant was entitled to a monthly salary of KZT 4,200,000. Therefore, from March 2020 (i.e. when the first salary became due) until 31 December 2020 (i.e. when the last salary would be due), the coach would have earned the total amount of KZT 42,000,000, i.e. 10*4,200,000.

31. In continuation, the Single Judge verified as to whether the Claimant had signed an employment contract with another club during the relevant period of time, by means of which he would have been enabled to reduce his loss of income. According to the constant practice of the Players’ Status Committee, such remuneration under a new employment contract shall be taken into account in the calculation of the amount of compensation for breach of contract in connection with the player’s general obligation to mitigate his damages. In this respect, the Single Judge noted that no such contract was concluded.

32. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the Single Judge decided that the Respondent must pay the amount of KZT 42,000,000 to the Claimant as compensation for breach of contract, which it considered as reasonable and justified on the basis of the relevant contractual provisions as well as in the light of the mitigating circumstance at hand.

33. In addition, and taking into account the Claimant’s request as well as the longstanding jurisprudence in this respect, the Single Judge decided to award 5% interest p.a. on said amount as from the date of the claim until the date of effective payment.

34. Furthermore, the Single Judge referred to the requested paid annual leave. In this respect, he noted that the club was willing to pay the coach his annual leave and that the contract explicitly provided (art. 5.2 of the contract) for paid annual leave of 28 calendar days. As a result, the coach would be entitled, on a pro rata basis of 33 days worked, to KZT 358,820.

35. Therefore, the Single Judge decided to award the aforementioned amount of KZT 358,820. In addition, the Single Judge decided to award 5% interest p.a. on said amount as from the date of the claim until the date of effective payment.

36. In addition, and as to the payable costs, this respect, the Single Judge of the Players' Status Committee 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

37. Finally, the Single Judge concluded his deliberations by rejecting any further request made by the parties.

III. DECISION OF THE PLAYERS' STATUS COMMITTEE

1. The claim of the Claimant, Vladimir Maminov, is partially accepted.

2. The Respondent, FC Aktobe, has to pay to the Claimant, the following amounts:

- KZT 2,100,000 as outstanding remuneration plus 5% interest p.a. as from 1 February 2020 until the date of effective payment.

- KZT 4,200,000 as outstanding remuneration plus 5% interest p.a. as from 1 March 2020 until the date of effective payment.

- KZT 42,000,000 as compensation for breach of contract without just cause plus 5% interest p.a. as from 14 July 2020 until the date of effective payment;

- KZT 358,820 as compensation for breach of contract without just cause plus 5% interest p.a. as from 14 July 2020 until the date of effective payment.

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 amounts.

5. The Respondent shall provide evidence of payment of the due amounts 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 amounts due, plus interest, as established above are not paid by the Respondent within 30 days, as from the notification by the Claimant of the relevant bank details to the Respondent, the following consequences shall arise:

1.

In the event that the payable amounts as per this decision are not paid within the granted deadline, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee.

7. The decision is rendered free of 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:

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