F.I.F.A. – Players’ Status Committee / Commissione per lo Status dei Calciatori – coach disputes / controversie allenatori (2020-2021) – fifa.com – atto non ufficiale – Decision 23 March 2021

Decision of the

Single Judge of the Players' Status Committee

passed on 23 March 2021

regarding an employment-related dispute concerning the coach Tamas Bodog

BY:

Vitus Derungs (Switzerland), Single Judge of the PSC

CLAIMANT:

Tamas Bodog, Germany & Hungary

Represented by Georgi Gradev

RESPONDENT:

Honved FC, Hungary

I. FACTS OF THE CASE

1. Tamas Bodog (hereinafter: the coach or the Claimant) is a football coach born on 27 September 1970 in the city of Dunaujvaros, Hungary, and is a citizen of both Hungary and Germany. He acquired the German nationality by way of naturalisation in 2005.

2. The Hungarian club, Honved FC (hereinafter: the club or the Respondent) is a club affiliated to the Hungarian Football Federation (HFF).

3. On 30 June 2020, the coach and the club concluded an employment contract, valid as from 1 July 2020 to 30 June 2022 (hereinafter: the contract). Subsequently, the coach and the club executed a travel contribution agreement, a rent contribution agreement, an agreement on bonuses and a car usage agreement (hereinafter: the additional agreements).

4. The contract and the additional agreements were drafted originally in Hungarian. The preamble to said contract and additional agreements reads as follows:

“Bódog Tamás

Mother's name: (…)

Place and date of birth: Dunaújváros, 27.09.1970

Address: (…)

Tax ID: (…)

Social Security ID: (…)

Bank account number: (…)”

5. According to the contract, the coach was hired as head coach of the club’s “NB1” team. The contract and the additional agreements further establishes the following financial terms payable by the club to the coach:

a. HUF 4,153,000 gross as basic monthly salary, payable between 1 July 2020 to 30 June 2021 on the 10th day of each subsequent month;

b. HUF 4,564,500 gross as basic monthly salary, payable between 1 July 2021 to 30 June 2022 on the 10th day of each subsequent month;

c. HUF 700,000 per year for air travel costs between Hungary and Germany;

d. HUF 210,000 per month as housing allowance payable on the 15th day of the subsequent month.

6. Clause 9 of the contract reads as follows: “The parties agree that the [club] has the right to terminate the present contract with immediate effect if the [club’s] NB1 football team is in the relegation zone for five (5) consecutive matches within one season”. The [club] has the right to terminate this contract with immediate effect even in the case that the [club’s]'s NB1 football, at the end of any season under the present contract, following the announcement of the closing of the league, is not within the first 8 placed teams on the official league standings”.

7. Clause 20 of the contract reads as follows: “For matters not regulated by this contract, the Labor Code's relevant provisions, other applicable legislation on employment law, and the Employer's regulations and managerial decisions in force shall apply.

8. On 11 November 2020, the club issued a work certificate “For the duration of the mandated curfew during the coronavirus pandemic”. In such document, the coach is identified as follows:

“Bódog Tamás (name) C2ZKNZTKO (personal identification card number / passport number / driver license number) 1095 Budapest, Lechner ÖdÖn Fasor 2. (home address / place of residence / accommodation) is an employee of Honvéd Futball Club Limited Liability Company”.

9. The number C2ZKNZTKO is the one found in the coach’s German passport, issued by the city administration (Stadtverwaltung) in Mainz, Germany on 25 February 2015. Such passport is valid until 24 February 2025.

10. On 6 December 2020, the club terminated the contract and the additional agreements with immediate effect via a written notice on the basis of clause 9 of the contract. Such notice inter alia reads as follows:

“The NB1 football team (Budapest Honvéd FC), operated by the Employer, is in the 12th (relegation) position after the 13th round of the 2020/2021 football championship. The team has been in the relegation zone for 9 rounds in the season so far -- so the condition for immediate termination set out in Clause 9 of the Employment Contract has already been fulfilled. (…) The payment of your salary and bonuses, as well as the issuance of the certificates specified in the rules and other legal regulations concerning the employment relationship, shall take place no later than the fifth (5th) working day after the termination of the employment relationship”.

11. On 11 December 2020, the club paid HUF 4,168,067 to the coach, broken down as follows:

a. “Europa League bonus HUF 1,500,000 net

b. November points bonus HUF 150,024 net

c. Bonus for youth players HUF 1,906,000 net

d. Salary 01.12-06.12 HUF 612,043 net”.

12. By the time this decision was issued, the coach had not found new employment.

II. PROCEEDINGS BEFORE FIFA

13. On 31 December 2020, the Claimant filed the claim at hand before FIFA. A brief summary of the position of the parties is detailed in continuation.

a. The claim of the Claimant

14. The coach deems that FIFA is competent to hear the dispute on the basis of art. 22 lit. c) of the FIFA Regulations on the Status and Transfer of Players (RSTP) since the contract and the additional agreements do not have a jurisdiction clause. What is more, the coach explained that he has not possessed Hungarian documents “for years” and that the work certificate issued by the club on 11 November 2020 demonstrates that he was hired as a German citizen.

15. As to the substance, the coach submitted that he complied with the contract and that clause 9 of the contract is null and void, thus not being able to serve as a valid justification for the termination of the contract. He furthermore argued that the condition precedent set out in such clause was not fulfilled. And, in any event, that the club, by its previous actions, forfeited its right to terminate the contract.

16. In this sense, the coach submitted that the club terminated the contract without just cause since clause 9 of the contract is unilateral and potestative. Furthermore, the coach argued, should the clause at stake be considered valid, that the club waited for a month to terminate the contract after the team was in the relegation zone, therefore waiving its right to terminate the contract.

17. As a consequence, the coach deems he is entitled to the total amount of HUF 88,554,457 plus 5% annual interest, broken down as follows:

a. HUF 3,540,957 as “basic gross salary from 7 to 31 December 2020”;

b. HUF 24,918,000 as “basic gross salary from 1 January to 31 June 2021”;

c. HUF 54,774,000 as “basic gross salary from 1 July 2021 to 30 June 2022”;

d. HUF 3,990,000 as “housing allowances from 1 December 2020 to 30 June 2022”;

e. HUF 1,331,500 as “air travel costs from 1 December 2020 to 30 June 2022”.

b. Reply of the Respondent

18. The club, for its part, claimed that FIFA is not competent to hear the dispute.

19. Firstly, the club submitted that the contract is a “simple employment contract” and not a “sports activity” concluded under the Hungarian Labour Code, which is hence “not governed by specific provisions”.

20. Secondly, the club argued that the international dimension is not present insofar as the coach played for the Hungarian national team and the “relevance of this German citizenship do not reasonably arise in terms of a Hungarian football club operating in Hungary”. The club furthermore argued that the employment relation entered into by the parties was not made with the coach as a German since the contract does not contain any provision in this regard.

21. What is more, the club argued that “the Government Office issued an address card to the Claimant without preliminary registration, which preliminary registration is, however, compulsory in case of foreign citizens (who do not have Hungarian citizenship), which also substantiates that the Claimant has Hungarian citizenship; the relevance of his German citizenship did not arise when his employment relationship with the Defendant was established”

22. As to the substance, the club referred to the applicable law under the contract, and stated that the termination was lawful under Hungarian law. The club furthermore opposed the translation filed by the coach and stated that clause 9 of the contract did not provide that the club had to be in the relegation zone for five consecutive rounds. In any event, the club submitted that the club was indeed in the relegation zone for five consecutive matches.

c. Additional information requested by FIFA

23. Upon request from FIFA for the parties to comment on the data indicated in the preamble of the contract (tax ID, Social security ID and bank account number), the parties filed the submissions detailed in continuation.

24. The coach explained that such data is irrelevant to establish the international dimension to the dispute and reiterated his argumentation related to the work certificate.

25. The club argued that it had requested the coach in the context of the execution of the contract to fill out a form, which was done so by the coach’s agent, and proceeded to explain that in such form the nationality of the coach is stated as Hungarian-German. Following this, the club explained that it informed the relevant tax authorities of the start of the employment relationship between the parties, being subsequently informed that the coach already had a Tax ID number due to previous jobs in Hungary.

26. As to the social security number, the club argued as follows: “if we assume, but not allow that Tamás Bódog is more closely connected with Germany than with Hungary, he would have to have a European Health Insurance Card or a replacement form issued in Germany, and he would not need a Hungarian social insurance card and/or social insurance number. Despite all this, Tamás Bódog had a valid social insurance card and social insurance number at the time of concluding the contract, which proves that he had an already existing insurance relationship in Hungary.”.

27. Lastly, as to the bank account, the club argued that the coach already had it, and thus stated that “Tamás Bódog shall be considered as domestic from the point of view of the place, where the salary was obtained, because from the point of view of the place where his salary was obtained he had the closest relationship with Hungary, at the time of entering into the contract and during the employment relationship, considering also that he was already a resident in Hungary before the employment relationship concluded”.

28. Upon the request of FIFA, the HFF informed that the coach was registered as a Hungarian citizen within its system.

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

a. Competence and admissibility

29. The Single Judge of the Players’ Status Committee (hereinafter also referred to as the Single Judge) started by analysing whether he was competent to deal with the matter at hand.

30. In this respect, he took note that the present matter was filed with FIFA on 31 December 2020 and later presented for decision on 23 March 2021. On account of 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 Single Judge determined that the aforementioned edition of the Procedural Rules is applicable to the matter at hand.

31. Subsequently, the Single Judge analysed which regulations should be applicable. In this respect, he confirmed that, in accordance with art. 26 par. 1 and 2 of the RSTP (edition February 2021), and considering that the present claim was lodged on 31 December 2020, that the October 2020 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand.

32. Having established the applicable Procedural Rules and Regulations, the Single Judge turned his attention to the issue of his competence, a task that he shall conduct ex officio.

33. From the outset, the Single Judge observed that in accordance with art. 22 lit. c) in conjunction with art. 23 par. 1 and 3 of the Regulations, the Players’ Status Committee is only competent to deal with employment-related disputes between a club or an association and a coach of an international dimension, unless an independent arbitration tribunal guaranteeing fair proceedings exists at national level.

34. To this end, the Single Judge stressed that the wording of the article 22 lit. c) of the Regulations clearly implies that the first condition that needs compulsorily to be fulfilled in order for FIFA to be competent to hear an employment-related dispute between a club and a coach is that said dispute has an “international dimension”. This means, in other words, that FIFA is only competent to hear an employment-related dispute between an association and a coach when the parties have different nationalities.

35. The Single Judge at this point found it important to recall the jurisprudence of the Players’ Status Committee, which denotes that in cases where a claimant has dual citizenship, the case lacks international dimension. The jurisprudence also shows that the determining factor to establish the international dimension is the nationality of the coach as put down in the relevant contract, since this is the document that outlines the parties’ understanding of their employment relationship.

36. As a consequence, in case the parties share a common nationality, the relevant dispute has to be considered a purely internal (national) matter to be decided by the competent authorities in the respective country. The Single Judge recalled that the jurisprudence of the Players’ Status Committee has adopted the position outlined above in similar cases such as coaches Micic and Lawrence, and save in cases where the party relying on the international dimension submitting conclusive and substantial evidence to prove the contrary.

37. Following such reasoning, the Single Judge thus stressed that in accordance with art. 12 par. 3 of the Procedural Rules, a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof. Likewise, he emphasized the wording of art. 12 par. 4 of the Procedural Rules, pursuant to which he may consider evidence not filed by the parties.

38. The Single Judge turned then to the submissions of the parties as well as the evidence on file, and confirmed that it could be established that the coach indeed holds dual citizenship, i.e. Hungarian and German, a fact which he noted was moreover not disputed by the parties. The underlying dispute, he highlighted, was if the coach was hired or not as a German citizen.

39. The Single Judge observed that the coach acquired the German nationality in 2005, that is, before the contract at the centre of the dispute was executed. However, the Single Judge confirmed that per the evidence on file no information on the relevant contract with respect to the coach’s nationality could be found. Put differently, the Single Judge confirmed that neither the contract nor the additional agreements named the coach as a German citizen, nor Hungarian citizen for that matter.

40. Bearing in mind such situation, the Single Judge then turned to the allegations of the Claimant pertaining to his work certificate, as well as the other pieces of evidence on file. Accordingly, the Single Judge observed that such work certificate, which was indeed issued by the club and indeed indicated the coach’s German passport number, is not sufficient to demonstrate the hiring of the Claimant as a German citizen.

41. Firstly, this conclusion is reached because such document is not contemporary to the execution of the contract, which entails it could not denote the underlying international dimension to the employment relationship. Secondly, because the coach admitted that he has not possessed updated Hungarian documents for years, which means that the valid ID number inserted in the work certificate pertained only to his only available valid ID at the time the certificate was issued.

42. The issue however pertains to nationality and not to validity of documentation. Hence, for the sake of completeness, and conversely to the argumentation of the coach, the Single Judge explained that not holding unexpired documentation on the coach’s side does not demonstrate that the he was hired as a German citizen: it demonstrates solely that the coach was not up to date with his Hungarian documentation, not that he had lost or foregone the Hungarian nationality.

43. In continuation, the Single Judge recalled the information provided to FIFA by the HFF, pursuant to which the latter confirmed that the coach was registered as Hungarian citizen within its registration system.

44. Finally, the Single Judge was mindful of the fact that unlike in his previous contracts with Hungarian clubs – which named the coach as a German citizen – the contract with the club makes no such distinction. Consequently, the Single Judge was of the opinion that this demonstrates that, unlike in the previous agreements, it could not be established that the coach was hired as a German citizen.

45. In view of the foregoing, Single Judge determined that the Claimant, who carried the burden of the proof in line with aforementioned art. 12 par. 3 of the Procedural Rules, failed to demonstrate that he was hired as a German citizen; circumstance which may have led to the Single Judge being competent to hear the present dispute insofar it would have established the international dimension. Accordingly, and absent evidence to the contrary, the Single Judge determined that the coach was both hired and rendered his services as a Hungarian citizen.

46. It followed that the Claimant’s claim was found to be inadmissible as the Single Judge decided he was not competent to hear the dispute on the account of lack of its international dimension in line with art. 22 lit. c) of the Regulations.

b. Costs

47. The Single Judge observed the temporary amendments outlined in art. 18 par. 2 lit. i) of the Procedural Rules, according to which no costs shall be levied for claim filed between 10 June 2020 and 31 December 2020 (both inclusive). Consequently, he decided that no costs shall be levied by any of the parties as the claim was filed on 31 December 2020.

48. For the sake of completeness, the Single Judge referred to art. 18 par. 4 of the Procedural Rules, and decided that no procedural compensation was to be awarded in these proceedings.

IV. DECISION OF THE SINGLE JUDGE OF THE PLAYERS' STATUS COMMITTEE

1. The claim of the Claimant, Tamas Bodog, is inadmissible.

2. 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).

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