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 14 July 2020

Decision of the

Single Judge of the Players' Status Committee

passed on 14 July 2020,

regarding an employment-related dispute concerning the coach Tarek Jerraya

BY:

Castellar Guimaraes Neto (Brazil), Single Judge of the PSC

CLAIMANT:

Tarek Jerraya, France

RESPONDENT:

Nejmeh Sporting Club, Lebanon

I. FACTS OF THE CASE

1. On 1 July 2019, the French coach, Tarek Jerraya, (hereinafter: the Claimant or coach), and the Lebanese club, Nejmeh Sporting Club, (hereinafter: the Respondent or club) concluded an employment contract valid as from the date of signature until the end of the season 2019/2020 (hereinafter: the contract).

2. Pursuant to art. 4 of the contract, the Respondent undertook to pay the Claimant the following amounts, inter alia:

- A monthly salary of USD 7,500 payable on the 10th of each month;

- USD 40,000 if the club wins the Championship;

- USD 15,000 if the club wins the cup;

- USD 15,000 if the club is 1st after the first leg;

- Match bonus double from what players receive.

3. According to art. 5 of the contract, the Respondent had to provide three flight tickets to the coach

as well as accommodation and a car.

4. Art. 6 of the contract, titled “Obligations de l’entraineur”, provided that:

- Media statements are subject to the approval of the club's press officer and in case of infringement a deduction of 50 per cent of the salary will be imposed;

- It is forbidden for the coach to discuss with other clubs or their public or their players and in the event of an infringement, the club may terminate the contract without any compensation.

5. In accordance with art. 7 of the contract, the Respondent could unilaterally terminate the contract by paying one month salary to the coach.

6. On 6 August 2019, the Respondent published a communiqué by means of which it announced the termination of the coach’s contract arguing that the Claimant “had a strange attitude with the sole purpose of preventing the club from recruiting several player especially since the club discovered that the coach has agreed since two months ago to train a golf team […] the club will hire a new coach within the next two days”.

7. According to the Claimant, on 17 October 2019, after the club unilaterally terminated his employment contract, he put the club in default requesting the payment of the outstanding amount of USD 13,894 and granted four days for the club to comply. The Claimant stated that despite his default notice, the Respondent did not make any payments.

8. On 5 December 2019, the Claimant lodged a claim against the Respondent in front of FIFA for outstanding remuneration and compensation for breach of contract, claiming the total amount of USD 95,394, corresponding to the following:

 USD 13,894 as outstanding remuneration calculated as follows:

- USD 3,750 as remuneration for the timeframe before the start of the contract “since the coach started working before the beginning of the contract”;

- USD 7,500 as salary for July 2019;

- USD 127 as passport fees;

- USD 67 as reimbursement of the penalty paid to change the flight ticket;

- USD 450 as salary advance paid to the physical coach by the coach;

- USD 2,000 as bonus for the Cheikh Zeyed Cup, plus 5% interest as from 17 October 2019.

 USD 81,500 as compensation for breach of the contract corresponding to the residual value of the contract.

9. The Claimant argued that the Respondent terminated the contract without just cause therefore, he should be entitled to outstanding remuneration and compensation for breach of contract in total amount of USD 95,394.

10. In its reply to the claim the Respondent pointed out that since the beginning of the contractual relation with the coach, the Respondent received several complaints from local football clubs stating “the irresponsible attitude of Mr. Jerraya who started to communicate with players in an attempt to exert pressures to terminate these players’ contracts with their clubs and urge them to join Nejmeh Club therefore, causing moral demage to Nejmeh Club reputation.”

11. Moreover, the Respondent stated that such behavior from the coach led to “a big fight” with two clubs, SAFA Club and Salam Zgharta Club which, as consequence, sent letters to the Lebanese Football Association complaining about the situation.

12. Consequently, the Respondent held that it warned the coach about his possible breach of art. 6 of the contract, which gives to the Respondent the right to terminate the contract without prior notice and any indemnity or compensation in case he communicated with other clubs/players without the club’s authorization.

13. Furthermore, the Respondent highlighted that the coach released three media statements with no permission and therefore, based on art. 6 of the contract, the club had the right to deduct 50% of the coach’s salary every time he released a statement to the media.

14. The Respondent further stated that, based on the above, it had the right to terminate the coach’s contract, however, it gave a further chance to the coach but the latter “refused all the warnings and submitted his resignation on 06/08/2019”.

15. The Respondent maintained that it accepted the coach’s resignation and posted it on the club’s official page.

16. The Respondent added that “In reference to the post on Nejmeh SC official page that Mr. Jerraya referred to in order to claim that the Club terminated his contract, the Club posted that the coach’s contract was terminated but what is meant that he resigned but unfortunately with a typo from the club admin it was written in bad wording but was deleted afterwards and corrected which reveals the club good intentions. Therefore, the screenshot taken by Mr. Jerraya is no longer valid and was corrected on the spot and cannot be taken into consideration when having a resignation letter signed by the coach himself.”

17. Finally, the Respondent held that the coach was the one who submitted his resignation and therefore, no compensation can be requested by the coach. Moreover, the Respondent stated that it requested to the coach, several times, to pay compensation to the club in the amount of USD 3,750, however to no avail.

18. In its conclusion, the Respondent requested the following:

- “Rejecting the claim of the coach Tarek Jerraya and all his false allegations since he is the one who breached the contract not the club;

- The club confirms that Tarek Jerraya resigned and it is not the club who terminated his contract;

- The club confirms that the contract signed with Tarek Jerraya is terminated by Tarek Jerraya and on his own responsibility without getting any indemnity or compensation since he failed to respect point 13 of ART 6 of the contract then he resigned;

- The club rejects Tarek Jerraya’s request to receive all his contract amount because such a request is not valid;

- The club reserves all his rights.”

19. On 29 April 2020, the FIFA Administration received an unsolicited correspondence from the Claimant. According to it, the Claimant denied to have signed and submitted any resignation letter to the Respondent.

20. On account of the above, on 30 April 2020, and in order to have all the relevant information and documentation at our disposal to properly evaluate the present matter, the FIFA Administration asked the club, Nejmeh Sporting Club, to send to our services the original version of the “Resignation letter” signed by Mr Tarek Jerraya on 6 August 2019, via regular post or courier services, by no later than 7 May 2020.

21. On 7 May 2020, the Respondent, via email, communicated to FIFA the following:

“Dear Sir,

In reference to your email dated 30/04/2020 asking Nejmeh Club to send via courier the original version of Tarek Jerraya’s resignation letter, please note that Mr. Tarek Jerraya submitted his resignation from Nejmeh Club by sending it as jpg attachment via email on 06/08/2019 as shown below and attached, therefore, we don’t have the original version although Nejmeh Club replied as shown below to Mr. Jarraya’s email asking him to send us the original document which he never did and travelled suddenly and the club was forced to put in charge the assistant coach to handle the team till the management assigns a new head coach.

However, Nejmeh Club urges you to use a graphologist who can easily figure out the handwriting and signature on the resignation letter of Mr. Jerraya because its handwritten.

Please be reminded that Nejmeh Club translated the resignation letter sent by Mr. Jerraya on 06/08/2019 in Arabic to the English language and included it in its reply sent to FIFA on 13/02/2020. Please find attached again the translated document of the resignation sent by Mr. Tarek Jerraya via email on 06/08/2019 as shown below.”

II. CONSIDERATIONS OF THE SINGLE JUDGE OF THE PLAYERS' STATUS COMMITTEE

1. First of all, the Single Judge of the Players’ Status Committee (hereinafter: the Single Judge) analysed whether he was competent to deal with the matter at stake. In this respect, the Single Judge took note that the present matter was submitted to FIFA on 5 December 2019 and decided on 14 July 2020. Thus, the June 2020 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the matter at hand.

2. Subsequently, the Single Judge analysed which edition of the Regulations on the Status and Transfer of Players is applicable as to the substance of the matter. In this respect, he referred, on the one hand, to art. 26 par. 1 and 2 of the June 2020 edition of the Regulations on the Status and Transfer of Players and, on the other hand, to the fact that the claim was lodged in front of FIFA on 5 December 2019. In view of the foregoing, the Single Judge concluded that the October 2019 edition of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the case at hand as to the substance.

3. Furthermore, the Single Judge confirmed that, on the basis of art. 3 par. 1 and par. 2 of the Procedural Rules in connection with art. 23 par. 1 and par. 4 as well as art. 22 lit. c) of the Regulations, he was competent to deal with the present matter since it concerned an employment–related dispute with an international dimension.

4. The competence of the Single Judge and the applicable regulations having been established, and entering into the substance of the matter, the Single Judge started by acknowledging the above-mentioned facts as well as the arguments and the documentation submitted by the parties. The Single Judge emphasised, however, that in the following considerations he will refer only to the facts, arguments and documentary evidence, which he considered pertinent for the assessment of the matter at hand.

5. In this respect, the Single Judge acknowledged that, on 1 July 2019, the Claimant and the Respondent concluded an employment contract valid as from the date of signature until the end of the season 2019/2020, pursuant to which the Respondent undertook to pay to the Claimant a monthly salary of USD 7,500.

6. Moreover, the Single Judge took note that on 6 August 2019, the Claimant’s contract was terminated.

7. Furthermore, the Single Judge observed that, the Claimant, in his claim, requested outstanding remuneration and compensation for breach of contract, arguing that the Respondent terminated the contract without just cause via a statement released, on 6 August 2019, on its official page.

8. The Single Judge further noted that, the Respondent, for its part, denied the Claimant’s arguments, and held that its statement was the consequence of the Claimant’s resignation letter dated 6 August 2019, sent to the club via email.

9. Furthermore, the Single Judge also took into consideration the unsolicited correspondence of the Claimant in which he denied having sent a resignation letter to the club and indicated that the letter provided by the club was a counterfeit, as well as the documentation provided by the Respondent in response to that, upon FIFA’s request.

10. Bearing in mind the diverging allegations of the parties in particular as to the initiative of the termination, the Single Judge considered that he would first need to establish which party effectively terminated the contract. At this point, he deemed it appropriate to remind the parties of the content of art. 12 par. 3 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”.

11. In this respect, the Single Judge noted that in reply to the Claimant’s allegation of counterfeit, the Respondent explained that the resignation letter was sent by the coach by email and therefore it was not able to provide FIFA with the original version of it. Instead, the club forwarded to FIFA a copy of the resignation email received from the coach on 6 August 2019 as well as the documentation attached to it. The aforementioned resignation email from the coach to the club was sent from the same email address used by the legal representatives of the coach to communicate with him, as per the documentation contained in the file. Furthermore, the club also forwarded a copy of an email sent to the coach on 7 August 2019, acknowledging the resignation and asking him to provide the club with the original document. The Single Judge also noted that for a layman the signature of the coach in the resignation letter and in the contract appear to be the same. Thus, the Single Judge concluded that according to the documentation on file the coach sent resignation letter to the club on 6 August 2020, which was accepted by the club.

12. Having established the foregoing, the Single Judge went on to establish whether the coach had a just cause to terminate the contract on 6 August 2019.

13. At this point, the Single Judge deemed it appropriate to emphasise that 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.

14. Having said that, the Single Judge noted that the only default notice sent by the coach to the club is dated 17 October 2019, i.e. after the termination, requesting the payment of allegedly outstanding remuneration. While the arguments of the club to impose a 50% reduction of the coach’s monthly salary allegedly due to unauthorized media statements is not acceptable, as it is considered disproportionate and not resulting from due disciplinary proceedings, the fact that the coach did not put the club in default prior to the termination indicates that the coach did not respect the ultima ratio nature of the termination. Furthermore, it appears that on the date of termination, only one monthly salary for July 2019 remained outstanding.

15. In view of the above, the Single Judge was of the opinion that the Claimant did not have just cause to prematurely terminate the employment contract with the Respondent, since there would have been more lenient measures to be taken in order to preserve the contract and maintain contractual stability.

16. Based on the foregoing the Single Judge decided that the Claimant is only entitled to receive from the Respondent his outstanding remuneration at the time of termination, in accordance with the general legal principle of “pacta sunt servanda”.

17. In light of the above, the Single Judge noted that the coach claimed that on the date of termination his salary of July 2019 was outstanding. Consequently, the Single Judge decided that the Respondent is liable to pay to the Claimant the remuneration that was outstanding at the time of the termination, i.e. 6 August 2019, amounting to USD 8,951, corresponding to the monthly salary of July 2019 in the amount of USD 7,500 and USD 1,451 for the six days of August 2019.

18. Lastly, 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, including the Single Judge, 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 (cf. art. 18 par. 1 of the Procedural Rules).

19. In this respect, the Single Judge reiterated that the Claimant’s claim is partially accepted and therefore, the Single Judge decided that the costs of the present proceedings were to be split between the parties.

20. The Single Judge further observed the temporary amendments outlined in art. 18 par. 2 lit. ii) of the Procedural Rules, which entered in force in 10 June 2020, according to which the maximum amount of procedural costs levied for any claim lodged prior to 10 June 2020, which was yet to be decided at the time of such temporary amendment, shall be equivalent to any advance of costs paid.

21. Accordingly, the Single Judge observed that the Claimant paid the amount of CHF 2,000 as advance of costs, and therefore decided that the maximum amount of costs of the proceedings corresponds to CHF 2,000.

22. Consequently, considering that the claim of the Claimant is partially accepted, the Single Judge determined that the costs of the proceedings shall be equally split between the Claimant and the Respondent, i.e. each of them shall pay the amount of CHF 1,000 in order to cover the costs of the present proceedings.

23. The Single Judge concluded his deliberations in the present matter by establishing that Claimant’s claim is partially accepted and that any further claim lodged by the Claimant is rejected.

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

1. The claim of the Claimant, Tarek Jerraya, is partially accepted.

2. The Respondent, Nejmeh Sporting Club, has to pay to the Claimant the following amount:

- USD 8,951 as outstanding remuneration;

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 amount.

5. The Respondent 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).

6. In the event that the amount due, plus interest as established above is 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 amount as per in this decision is not paid within the granted deadline, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee.

7. The final costs of the proceedings in the amount of CHF 2,000 are to be paid to FIFA (cf. note relating to the payment of the procedural costs below) as follows:

 1.

The amount of CHF 1,000 is to be paid by the Claimant. Such amount is offset against the advance of costs paid by the Claimant and, where applicable, the Claimant shall receive a refund of CHF 1,000; 2.

The amount of CHF 1,000 is to be paid by the Respondent.

For the Dispute Resolution Chamber:

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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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland

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