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 20 October 2020

Decision of the

Single Judge of the Players' Status Committee

passed on 20 October 2020,

regarding an employment-related dispute concerning Mr Sascha Oliver Schäfer

COMPOSITION:

Stefano La Porta, (Italy), Single Judge of the PSC

CLAIMANT:

Mr Sascha Oliver Schäfer, Germany Represented by Mr. Hrvoje Rai

RESPONDENT:

Esteghal FC, IR Iran

I. FACTS OF THE CASE

1. On 1 May 2018, the Claimant and the Respondent signed an employment contract (hereinafter: “the contract”), valid as from 1 June 2018 until 1 June 2020.

2. Article 2.1 of the contract provides that the Claimant was hired by the Respondent as a “Football Analyzer” (…) “to assist the Head Coach of the First Team of Esteghal (…)”.

3. Article 4.1. of the contract provides “The Analyzer’s obligations” and stipulates, inter alia, the following: “The Analyzer is engaged as a full time to analyse training sessions and all matches for adult team”.

4. Article 5.3. of the contract provides that the Respondent was to obtain “residency documents and work permission according to the laws and regulations of Iran”.

5. In accordance with article 5.5 of the contract, the Claimant was entitled to 4 business flight tickets “to Europe”.

6. In accordance with article 6 of the contract, in case of unjustified absence, the Claimant would receive a penalty of USD 1,000 per day if that absence was during a training session, and a penalty of USD 3,000 per day if that absence was during a formal competition.

7. Article 6.6. of the contract stipulates that “the Analyzer accepts all of rewards, prizes, and fines imposed on the team included him”.

8. In accordance with article 7 of the contract, the Claimant was entitled to the following remuneration:

 USD 100,000 gross for the season 2018-2019 payable as follows:

-USD 84,000 net “the amount as agreed and payable the TAX deductible will be paid by the club and the receipt will be delivered to the Analyzer. The amount of USD 16,000 will be kept by the club as the provision for due TAXES at any rate, the amount of the net payment to the Analyzer does not exceed USD 84,000”.

-USD 7,000 net “as advance payment after signing the contract and registering at league organization will be paid to the Analyzer”;

-USD 77,000 in monthly instalments as follows “beginning 1 June 2018 to 1 June 2019 USD 6,416 per month”.

 USD 120,000 gross for the season 2019-2020 payable as follows:

-USD 100,000 net “the amount as agreed and payable the TAX deductible will be paid by the club and the receipt will be delivered to the Analyzer. The amount of USD 20,000 will be kept by the club as the provision for due TAXES at any rate, the amount of the net payment to the Analyzer does not exceed USD 100,000”.

-USD 10,000 net “as advance payment after signing the contract and registering at league organization will be paid to the Analyzer”;

-USD 90,000 in monthly instalments as follows “beginning 1 June 2019 to 1 June 2020 USD 7,500 per month […] the monthly payments will be made later than 5th of each month”.

9. Article 7 also indicates that payments shall be done in cash.

10. Article 8.1 of the contract provides that “failure to pay salary and/or bonuses for more than 60 days of contract and therefore the contract can be terminated unilaterally. If such circumstances occur the club pay the remainder of the contract plus any outstanding salary and/or bonuses owed.”

11. On 6 May 2019, the Claimant put the Respondent in default, requesting the total amount of USD 19,248 net corresponding to the salaries from March to May 2019 and requested that the Respondent “stop with the false accusations and negative campaign aimed at him”. The Claimant gave 15 days for the Respondent to remedy its default.

12. On 9 May 2019, the Respondent replied to the default letter of the Claimant arguing the following:

-that the Claimant was engaged as Football Analyzer and not as an assistant coach and that consequently any reference made by the Claimant to the FIFA Regulations were irrelevant;

-that the Claimant was not suspended from performing his employment obligations;

-that there was no media campaign against the Claimant;

-that there was no outstanding remuneration towards the Claimant as the Executive Board of the Respondent had decided upon a 20% salary reduction applicable to all players and officials due to poor performance;

-that there was no de facto termination of the employment contract by the Respondent;

-the Claimant was requested to attend the match on 11 May 2019 and that the Claimant should submit his respective report by 13 May 2019.

13. On 11 May 2020, the Claimant replied to the Respondent’s letter of 9 May 2019 by stating, inter alia, the following:

-The employment contract refers to FIFA regulations as well as to the FIFA deciding bodies and that according to the latest jurisprudence of CAS, the position which the Claimant actually had within the coaching staff was irrelevant;

-Objected to the Respondent’s view that he was not suspended from his duties as he is in possession of video footage where club officials even state that he was fired from his position;

-The Respondent had failed to extend his working visa, which was due to expire on 12 May 2019;

-Objected to participate in the match on 11 May 2019 as he was anyway forced to leave the country on the same day due to the expiry of his visa and

-Emphasised that he was willing to perform his duties as long as the Respondent would remedy the default towards him.

14. On 13 May 2019, the Respondent requested the Claimant to provide them with his passport to extend his residence visa and held that it had made this request previously, to no avail. It gave until 14 May 2019 for the Claimant to provide his passport.

15. On the same day, the Claimant replied to the Respondent, arguing that it had never been requested to provide his passport before, and held that in any case and following the recommendation of his Embassy, he had left the country due to the visa issue.

16. On 17 May 2019, the Respondent wrote to the Claimant and held that it had applied for a visa extension for the Claimant on 7 May 2019. The Respondent further informed the Claimant that he was fined for an amount of USD 6,000 due to his absences as from 12 May 2019 in accordance with article 6 of the contract.

17. On 20 May 2019, the Claimant replied to the Respondent, contesting the new fine, as his absence was related to the absence of a visa renewal, and argued that for the match on 11 May 2019, although he was absent from the match, he still watched it via internet and provided his report to the Respondent.

18. On 21 May 2019, the Respondent informed the Claimant that should he not return to the club by 25 May 2019, the contract would be terminated.

19. On 23 May 2019, the Claimant unilaterally terminated the contract arguing that the Respondent had outstanding amounts toward him, and despite the various default notices, those amounts had not been paid to him. He further held that the visa issue had not been solved, as he was allegedly informed by the German Embassy that the document provided by the Respondent was not sufficient for him to enter the territory of Iran.

20. On 2 October 2019, the Claimant lodged a claim against the Respondent before FIFA requesting the following:

a) Outstanding remuneration for USD 25,984.80 as follows:

-USD 8,661.60 as remuneration for March 2019;

-USD 8,661.60 as remuneration for April 2019;

-USD 8,661.60 as remuneration for May 2019;

b) USD 135,000 as compensation for the period from 1 June 2019 until 1 June 2020.

21. In support of his claim, the Claimant referred to the facts that transpired as recalled above and concluded that he had just cause to terminate the employment contract due to the severe breaches of the Respondent.

22. In particular, the Claimant referred to the fact that he was banned from participating in trainings alongside the Head coach and the rest of his staff and that subsequently a new coach was appointed. He highlighted that the Respondent had outstanding remuneration towards him and that, in this context, he had never been informed of any fine imposed on him; therefore, any reduction applied on his salary should be regarded as a contractual violation.

23. Equally and with respect to the fine of USD 6,000 imposed on him due to his alleged unauthorized absence (cf. point 14. Above), the Claimant alleged that such sanction was merely a reaction to his various default notice letter.

24. With respect to the visa issue, the Claimant emphasized that the Respondent had never brought to his attention any problems with respect to any missing documentation in order to extend his working visa until he actually enquired about this issue himself. The Claimant referred here to art. 5.3. of the employment contract (cf. point 4. above).

25. Finally and for the sake of good order, the Claimant rejected any theory on the Respondent’s part about a forfeit of rights in connection with his alleged unwillingness to provide his services to the Respondent. Indeed, the Claimant put forward that he offered his services on more than one occasion, that he wanted to join the club, that he did everything in his power to come to Iran and that he even performed some duties via the means of electronic communication. The Respondent, on the other hand, chose to totally disregard him.

26. The Respondent on its part firstly contested the competence of FIFA on the grounds that the Claimant was allegedly not employed as a coach but as a football analyser. In this respect, the Respondent referred to art. 22 c) of the RSTP as well as art. 6 par. 1 of the Procedural Rules.

27. Furthermore, the Respondent rejected any allegations on the Claimant’s part that he was actually performing the duties of a coach and emphasised that the latter had not provided any evidence to support such allegation.

28. In continuation, the Respondent submitted that article 2 of the contract refers to the Claimant as a “Football Analyzer” who was hired “to assist the Head Coach of the First Team of Esteghal (…)”.

29. Additionally, the Respondent recalled that article 4.1. of the contract is titled “The Analyzer’s obligations” and stipulates the following: “The Analyzer is engaged as a full time to analyse training sessions and all matches for adult team”.

30. Furthermore, the Respondent stated that article. 6.6 of the contract provided that “in case the parties would not undertake in the contract, the only official authority in Iran is the Iran Football Federation and litigate to the FIFA.”

31. Having contested FIFA’s competence, the Respondent submitted that in the event that FIFA is considered competent, it submitted a counter-claim against the Claimant for compensation based on the termination of the contract by the claimant without just cause. The Respondent reserved its rights to indicate the quantum of the compensation once the Claimant provides a copy of his employment contract with Baniyas FC (The Claimant concluded an employment contract with Baniyas FC valid as from 15 June 2019 until 15 June 2020. According to said contract, the Claimant was to receive a total salary of USD 85,000).

32. The Respondent held, that the Claimant was never suspended from performing his employment obligations on 29 April 2019 (note: as evidence thereto the Respondent mentioned its request to analyse the 1st May and 11 May 2019 matches). Equally, that the Claimant was never mistreated and his residence permit and visa were extended.

33. Consequently, the Respondent considered that there was no just cause for the Claimant to terminate the Contract.

34. In its counterclaim, the Respondent held that:

a). the Claimant departed from Iran on 11 May 2019 without authorisation and refused to return despite written warnings from the club;

b). In early June 2019, the Respondent heard that the Claimant had entered in an employment relationship with Baniyas FC. The Claimant was allegedly hired as a technical analyst.

35. With respect to the quantification of the compensation, the Respondent reserved its right to claim compensation with due consideration to the amounts which the Claimant earned with Baniyas FC but did not further specify an amount of compensation.

36. Alternatively, in the event the counterclaim was rejected, the Respondent contested the calculation of the outstanding salaries and stated that the outstanding remuneration for March 2019 and April 2019 should be awarded in net amounts, and the outstanding remuneration for May 2019 should be in a pro-rata net amount.

37. Lastly, the Respondent requested that any compensation awarded by the Players’ Status Commitee to the Claimant be mitigated in light of the employment contract concluded with Baniyas FC.

38. In reply to the Respondent’s counter-claim, the Claimant rejected all arguments contained herein and referred to the contents of his claim. The Claimant, for his part, held that in accordance with art. 2.1 of the contract, the role of the Claimant is to assist the head coach “irrespective of his role within the staff or its title”.

39. The Claimant further based himself on CAS award CAS 2018/A/5586 Club Adanasoir v. Vedran Naglic, which according to the Claimant, held that “if the parties had explicitly agreed to the competence of FIFA bodies, and made sure that the position of the coach is defined as one of the assistant coaches, like in this matter, then the FIFA bodies shall be competent to hear the case”.

II. CONSIDERATIONS OF THE PLAYERS' STATUS COMMITTEE

1. First of all, the Single Judge of the Players’ Status Committee (hereinafter: “the Single Judge”) analysed whether it was competent to deal with the case at hand. In this respect, he took note that the present matter was submitted to FIFA on 02 October 2019 and submitted for decision on 20 October 2020. 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. Furthermore, the Single Judge confirmed that, on the basis of art. 3 par. 1 of the Procedural Rules in connection with art. 23 par. 1 and 3 as well as art. 22 c) of the Regulations on the Status and Transfer of Players (edition October 2020), he shall adjudicate on an employment-related dispute between a club or an association and a coach that have an international dimension. In this regard, the Single Judge was eager to underline that the question of his competence to hear the present case must be tackled in view of the fact that the contract at the basis of the dispute was concluded between, on the one hand, the Claimant, who was hired to perform duties as “Football Analyzer” under the contract, and, on the other hand, the Respondent.

3. With the foregoing in mind, the Single Judge also recalled the provisions of art. 6 par. 1 of the Procedural Rules, which establishes that “Parties are member associations of FIFA, clubs, players, coaches or licensed match agents”. Thus, in neither art. 6 par. 1 of the Procedural Rules nor art. 22 c) of the Regulations or any other provision in any of FIFA’s regulations is there a basis to establish FIFA’s competence to hear disputes involving a “Football Analyzer”.

4. At this stage, the Single Judge paid close attention to the argumentation of the Claimant, who had alleged that in spite of the terms of the contract which provided that he was employed as “Football Analyzer”, he was hired to assist the head coach.

5. The Single Judge further noted that the Claimant invoked the CAS award 2018/A/5586, Club Adanasoir v. Vedran Naglic, according to which “if the parties had explicitly agreed to the competence of FIFA bodies, and made sure that the position of the coach is defined as one of the assistant coaches, like in this matter, then the FIFA bodies shall be competent to hear the case”.

6. In this regard, the Single Judge noted that the above-mentioned award concerns the situation in which the party in question was referred to as an assistant coach in the contract.

7. With the above in mind, the Single Judge held that, the findings of CAS in this award could not be applied to the present matter, as the Claimant was not hired to exercise the duties of a coach.

8. What is more, the Single Judge noted that the Claimant had not provided any evidence that he was effectively performing any duties of an assistant coach and that the contract does not define him as an assistant coach but merely that he would be assisting the head coach, which can effectively be seen as his role as a football analyzer.

9. In this regard, the Single Judge determined that in accordance with the rule of burden of proof mentioned under art. 12 par. 3 of the Procedural Rules which provides that “any party claiming a right on the basis of an alleged fact shall carry the burden of proof”, it undoubtedly fell upon the Claimant to prove that he was in fact exercising duties of a coach and that he could thus be considered as a party in front of FIFA in the sense of art. 6 par. 1 of the Procedural Rules. However, after a thorough analysis of the arguments as well as the documentation submitted by the Claimant, the Single Judge reiterated that the Claimant had not provided any conclusive evidence proving that he was working as a coach for the Respondent.

10. Therefore, the Single Judge had no other alternative than to rely on the content of the contract, which clearly stated that the Claimant was hired by the Respondent to perform duties as football analyzer.

11. In this respect, the Single Judge observed that, according to the contract, the duties of the Claimant are, inter alia, “The Analyzer is engaged as a full time to analyse training sessions and all matches for adult team”.

12. In this regard, the Single Judge was eager to note that the duty as described above is clearly not the one of a coach in the sense of art. 6 of the Procedural Rules and rather refer to the position of football analyzer with solely analytical tasks of training sessions and matches.

13. In light of the above, the Single Judge had no doubt that the contract at the basis of the present dispute was concluded in order to acquire the services of the Claimant as a football analyzer and not as a coach.

14. In view of all of the above, the Single Judge, referring once again to art. 6 par. 1 of the Procedural Rules in combination with art. 22 c) of the Regulations, decided that the claim of the Claimant is not admissible in view of the fact that the latter, being a football analyzer, cannot be viewed as a party who is entitled to seek redress in front of the decision-making bodies of FIFA, in accordance with art. 6 par. 1 of the Procedural Rules.

15. With the above in mind, the Single Judge decided that no costs shall be imposed since the Claimant is not to be considered a party in front of FIFA (cf. art. 6 par. 1 of the Procedural Rules).

III. DECISION OF THE PLAYERS’ STATUS COMMITTEE

1. The claim of the Claimant is inadmissible.

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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