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 3 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 Andrea Stramaccioni
BY:
Johan van Gaalen (South Africa), Single Judge of the PSC
CLAIMANT / COUNTER-RESPONDENT:
ANDREA STRAMACCIONI, Italy
Represented by Mr. Martin Cockburn, MCA Sports Law LLP
RESPONDENT / COUNTER-CLAIMANT:
ESTEGHLAL FC, IR Iran
Represented by Ms Susanah Ng Sing Mei
I. FACTS OF THE CASE
1. On 6 June 2019, the coach Andrea Stramaccioni, (hereinafter “the Claimant”, “the Counter-Respondent” or “the coach”) and the club Esteghal FC (hereinafter “the Respondent”, “the Counter-Claimant” or “the club”) (both parties jointly referred to as “the Parties”) signed an employment agreement valid as of 1 July 2019 until 30 June 2021 (hereinafter “the Agreement”).
2. In the Agreement, the Parties agreed upon financial conditions as follows: “The remuneration of the Coach including the Staff shall be set out in the Schedule attached to the Contract and signed by the Parties, which is a substantial and integral part of the Contract. The Schedule shall include all salaries, financial bonuses and benefits/allowances to which the Coach and the Staff are or may be entitled to”
3. Moreover, the Agreement included the following clause: “In case of any delay in the payment of any salary and/or financial bonuses and/or benefits/allowances under the Schedule attached to the Contract, an interest rate equal to five-per-cent (5%) per year has to be applied. In addition, in case of any delay in the payment of any salaries and/or financial bonuses and/or benefits/allowances under the Schedule attached to this Contract for a period longer than forty-five (45) days an additional penalty amount equal to EUR 10,000.00/- (Ten Thousand Euro Only) net per month or fraction of month shall be applied independently from the Coach’s right to early terminate this Contract for just cause in accordance to Article VII par. 3 below.
4. Additionally, the “Employment Contract Schedule” (hereinafter “the Schedule”) regulated the salary payments, bonus payments and other benefits. In particular, the salary was agreed in the first article of the Schedule, which reads as follows:
(a) For the period as from 01.07.2019 until 30.06.2020, the Club shall pay to the Coach, including the three (3) members of the Staff, the total net amount of EUR 750,000.00/- (Seven Hundred Fifty Thousand Euro Only) as follows:
 EUR 100,000.00/- (Hundred Thousand Euro Only) net as signing on fee to be paid by the Club to the Coach within three (3) working days from the date of the Contract to a bank account nominated by the Coach outside Iran.
 Monthly Salaries as from 01.07.2019 until 30.06.2020 equal to EUR 54,166.66/- (Fifty Four Thousand One Hundred Sixty-six/66 Euro Only) net per each entire month to be paid by the Club to the Coach monthly in arrears at the end of each Gregorian month to a bank account nominated by the Coach outside Iran.
(b) For the period as from 01.07.2020 until 30.06.2021, the Club shall pay to the Coach, including the three (3) members Staff, the total net amount of EUR 750,000.00/- (Seven Hundred Fifty Thousand Euro Only) as follows:
 EUR 100,000.00/- (Hundred Thousand Euro Only) net as annual advance payment fee to be paid by the Club to the Coach on or before 01.07.2020 to a bank account nominated by the Coach outside Iran.
 Monthly Salaries as from 01.07.2020 until 30.06.2021 equal to EUR 54,166.66/- (Fifty Four Thousand One Hundred Sixty-six/66 Euro Only) net per each entire month to be paid by the Club to the Coach monthly in arrears at the end of each Gregorian month to a bank account nominated by the Coach outside Iran.
5. Furthermore, the Schedule included as well certain bonuses and additional benefits allowances agreed with the Coach.
6. In addition, article 4 of the Schedule reads as follows:
The Coach shall be liable for paying the remuneration, financial bonuses and benefits to the three (3) members of the Staff. The Coach represents that he has the right, legal capacity and authority to receive the above-mentioned amounts on behalf of the three (3) members of the Staff on his bank account out of Iran.
All the amounts mentioned above shall be paid by the Club on the following bank account of the Coach in Italy or on any other bank account out of Iran which should be communicated in the future by the Coach:
Bank Name: [Bank name]
Branch: (…) Rome (Italy)
Address: (…) Rome (Italy)
IBAN: [number]
Account No.: [number]
BIC/SWIFT: [code]
Account Name: STRAMACCIONI ANDREA
7. Lastly, Clause 7 of the Agreement states the following:
1. The Contract may be terminated before its expiry by mutual agreement.
2. The Contract may be terminated in writing by either party, without consequences for the terminating party, where there exists a just cause at the time of the Contract termination.
3. In the event the Club terminates the Contract and such termination is not due to a just cause or a mutual termination agreement between the Parties or the Coach terminates the Contract due to a just cause, the Club shall pay to the Coach, in addition to any amounts accrued up to the date of such termination, a compensation equal to the full remaining value of the Contract, which shall be grossed up with any further amount due for incurred taxation derived from tax residence considerations due to such early termination. The aforesaid due compensation amount shall be paid in one (1) lump sum within seven (7) working days from the date of the early termination. In case such termination takes place prior to 30.06.2020, then the Club shall pay to the Coach an additional compensation equal to twenty-per-cent (20%) of the total value of the Contract, which shall be grossed up with any further amount due for incurred taxation derived from tax residence considerations due to such early termination. The aforesaid due compensation amount shall be paid in one (1) lump sum within seven (7) working days from the date of the early termination.
4. In the event the Coach terminates the Contract and such termination is not due to a just cause or a mutual termination agreement between the Parties or the Club terminates the Contract due to a just cause, the Coach shall pay to the Club a compensation equal to the full remaining value of the Contract. The aforesaid due compensation amount shall be paid in one (1) lump sum within seven (7) working days from the date of the early termination. In case such termination takes place prior to 30.06.2020, then the Coach shall pay to the Club an additional compensation equal to twenty-per-cent (20%) of the total value of the Contract. The aforesaid due compensation amount shall be paid in one (1) lump sum within seven (7) working days from the date of the early termination.
5. The Club expressly acknowledges and agrees that the amount of compensation due to the Coach in accordance to paragraph 3 of this Article VII is fair and not subject, under no any circumstances, to any reduction or deduction whatsoever. Therefore, the Parties hereby expressly agree on the derogation from the general principle of "mitigation of loss".
8. According to the Claimant, the Club “continuously, substantially and over a long period of time, failed to comply towards the Claimant with its main contractual obligations” arising from the Agreement, as well as of the Schedule
9. On 30 August 2019 and 31 August 2019, an exchange of correspondence between the Parties took place. According to the letters dated 30 August 2019, the Respondent alleged that the Claimant negatively impacted its reputation and shall attend a meeting on 31 August 2019, whereas the Claimant rejected such allegations and replied that it was the Respondent who was in “serious breach with its financial obligations”. Moreover, the coach confirmed his attendance to the suggested meeting. On the other hand, the Respondent rejected the Claimant’s allegations.
10. In a letter dated 31 August 2019, the Respondent alleged several contractual violations by the coach and invited the latter to take his position until 3 September 2019.
11. On 1 September 2019, following the alleged meeting of 31 August 2019, the club informed the coach to “ignore” its previous letters in light of an alleged misunderstanding.
12. Nonetheless, in a letter dated 3 September 2019, the coach rejected the club’s previous allegations, pointing out that the signing on fee “has only been paid partially”.
13. Moreover, the coach complained that the payments were made “in four different instalments by three different remitters” and “all of them with very serious delay even longer than 45 days”. As a consequence, the coach requested interest of 5% as well as a penalty fee of EUR 10,000 for delayed payment as foreseen in the employment agreement. Furthermore, the coach requested the payment of salaries of July 2019 and August 2019 “by the end of the current working week”.
14. Between 4 and 8 September 2019, the club contacted the coach on several occasions with regard to the signing of various agreements in Persian, allegedly necessary for various administrative reasons.
15. On 10 September 2019, the coach sent letter to the club, requesting the payment of “any and all outstanding remuneration by no later than Wednesday 25 September 2019”. Moreover, the coach requested compliance with “Additional Benefits/Allowances” as per the Agreement and invoked that in case of non-compliance with the above, he reserves his right to terminate the contract with just cause. At last, the coach rejected any signing of new agreements, as no administrative issues were brought up when signing of the current employment contract.
16. On 16 September 2019, the coach received a letter from the club, referring to the difficulties of bank transfers from the Islamic Republic of (“IR”) Iran. Moreover, the club maintained that it paid the salary of July 2019 in instalments.
17. On 30 September 2019, the coach replied to the club’s letter that already at the time of conclusion of said employment agreement, the coach was aware of the restrictions connected to the international transfer of money from IR Iran. According to the coach it is unacceptable “to fabricate excuses” with regard to the club’s main contractual obligation.
18. Furthermore, in the same letter, the coach acknowledged partial receipt of July 2019 salary and requested the club to comply with the following obligations by no later than 6 October 2019 on a different bank account than the one stipulated in the Schedule.
19. Regarding the remuneration, the aforementioned letter states the following:
“As such, up to date, the following amounts are due and payable to our Clients:
• EUR 871.00/- for the signing-on fee, together with applicable interest;
• EUR 145.00/- for the salary of July, together with applicable interest;
• EUR 54,166.00/ - for the salary of August 2019, together with applicable interest; and
• EUR 12,500.00/- as penalty for the late payment of the signing-on fee.”
20. The same letter also refers to alleged breaches of certain Club’ obligations regarding the “additional benefits/allowances”.
21. On 11 October 2019, the club replied to the coach that it paid the August 2019 salary on 9 October 2019 to the Czech bank account.
22. According to the coach, he did not receive any payments from the club between 1 September 2019 and 31 December 2019 on the Czech bank account. Moreover, according to the coach, the club in its letter of 11 October 2019 “expressly acknowledged” the outstanding amounts.
23. On 11 November 2019, the coach sent a letter to the club, requesting to comply with the following obligations by no later than 26 November 2019, in inter alia the following terms:
As such, up to date, the following amounts are due and payable to our Clients:
• EUR 162,498.00/- for August, September and October 2019 salaries, together with applicable interest;
• EUR 8,666.66/- as penalty for non-payment of August 2019 salary;
• EUR 10,967.75/- as penalty for the late payment of the signing-on fee;
• EUR 871.00/- for the signing-on fee, together with applicable interest;
• EUR 145.00/- for the salary of July 2019, together with applicable interest;
24. The coach maintained that, on 11 November 2019, “the Respondent had outstanding payment obligations towards the Claimant in the net amount of EUR 183,148.41 / - corresponding to approximately 3.5 monthly salaries”.
25. On 26 November 2019, the club sent a letter to the coach, maintaining that it had paid the August 2019 salary on 9 October 2019. Moreover, the club denied the contractual penalty with regard to the August 2019 salary and asserted that on 21 November 2019, it made a payment in three instalments, corresponding to one monthly salary of EUR 54,167. The club suggested to the coach to open a new bank account in Turkey. According to the coach, it was acknowledged that the October 2019 salary was not paid yet as well as the health insurance.
26. On 28 November 2019, the coach rejected the allegations of the club and requested the payment of the following amounts by no later than 5 December 2019:
- EUR 12,000 “for the delayed payment of the August salary until the date of effective payment (i.e. 21 November 2019)”;
- EUR 108,332 for the outstanding salaries of September 2019 and October 2019;
- EUR 10,967.75 “as penalty for the late payment of the signing-on fee”;
- EUR 871 “for the signing-on fee”;
- EUR 145 “for the salary of July 2019”;
- “together with the November 2019 salary, which will become due on next 30 November”.
27. In the aforementioned correspondence, the coach stressed that the payments should be made to his Czech bank account as his Italian bank account “has been suspended”. Furthermore, the coach rejected to open a bank account in Turkey.
28. The coach further maintained that he “was facing immense difficulties in exercising his duties”. In this regard, he was of the opinion that the club also does not respect his financial obligations towards the players and other members of the team.
29. At last, the coach wrote the following:
“Without prejudice to any other remedy foreseen under the applicable laws and regulations, in case of non-payment of an outstanding amounts within the stated time limit as well compliance with all other contractual obligations as per the Employment Contract as , this will be considered as a just cause for the Employment Contract's termination at the sole and exclusive responsibility of the Club.”
30. On 30 November 2019, the club wrote a letter to the coach, maintaining that the following payments have been made to his Italian account:
- Salary of August 2019 on 21 November 2019;
- EUR 27,000 on 26 November 2019;
- EUR 27,167 on 29 November 2019.
31. On 1 December 2019, the coach in another letter to the club, stressed that any payments should be made to his Czech bank account. Furthermore, the coach requested the club to comply with his financial obligations by not later than 5 December 2019 and pay the outstanding salaries in the amount of EUR 186,481.75, calculated as follows:
- EUR 10,967.75/- as penalty for the late payment of the signing-on-fee;
- EUR 871.00/ - for the signing-on-fee, together with the applicable interests;
- EUR 145.00/- for the salary of July 2019 together with the applicable interests;
- EUR 12,000.00/- financial penalties for the delay longer than 45 days on the August 2019 salary (please note that, as further gesture of good will, our Clients are considering the date of last 21 November only);
- EUR 108,332.00/- as September and October 2019 salaries (please note that, as further gesture of good will, if this amount is paid within the date of next 5 December 2019 our Clients will not ask for the relevant financial penalties to be applied for the delay longer than 45 days on the September 2019 salary);
- EUR 54,166.00/- as November 2019 salary.
32. Thereafter, the parties exchanged several letters between 3 and 7 December 2019. The club tried to organize a negotiation between the parties and requested a deadline extension for the payment of the outstanding salaries.
33. At this point, by means of a letter dated 8 December 2019, the coach terminated the employment contract as follows:
“As consequence of the above and in the light of all the severe and reiterate breaches of several main Club's obligations pursuant to the Contract, we - on behalf of all our Clients - hereby formally notify and confirm further the Contract's termination for just cause at the sole and exclusive responsibility of Esteghlal F.C. with effect from the date of last 6 December 2019 as anticipated in our previous communications. All our Clients' rights are reserved.”
34. Furthermore, in his termination notice, the coach pointed out that as to the alleged payments made by the club on 26 November 2019 and 29 November 2019, “only one of them in the net amount of EUR 26,940 / = has been received on the Italian bank account”.
35. According to the coach, at the point of termination of the employment agreement, the club owed him the amount of EUR 159,541.75, corresponding to:
- EUR 10,967.75/- as penalty for the late payment of the signing-on-fee;
- EUR 871.00/- as outstanding part of the signing-on-fee;
- EUR 145.00/- as outstanding part of the July 2019;
- EUR 12,000.00/- financial penalties for the delay longer than 45 days concerning the August 2019 salary;
- EUR 27,226.00/- as outstanding part of the September salary;
- EUR 54,166.00/- as outstanding part of the October 2019 salary; and
- EUR 54,166.00/- as November 2019 salary.
36. In the night from 8 to 9 December 2019, the coach left IR Iran.
37. As of 9 December 2019, the club and the coach exchanged various correspondence, in particular about the payment of the outstanding remuneration and the possible signature of a new employment contract.
38. On 21 December 2019, the club sent a letter to the coach informing him that the outstanding payment was to be settled.
39. On 22 December 2019, the coach confirmed the “receipt of the relevant SWIFT” via e-mail and the parties started to negotiate a new employment contract.
40. Nonetheless, several disagreements arose between the parties. In a letter dated 23 December 2020, the club stated that the Claimant’s posts on Instagram have an adverse impact on the club’s reputation. The coach in his letters rejected such allegations and argued that it was the club who by “leaking again confidential information” jeopardized their employment relationship.
41. In a letter dated 27 December 2019, the club expressed that it would like to have the coach back.
42. On 29 December 2019, a meeting took place between the counsels of the parties about the potential signature of a new employment agreement. The coach maintained that it was clear that he does not want to renegotiate a new employment agreement.
43. On 31 December 2019, the coach sent a letter to the club, stating that due to its overall behavior no new contract can be negotiated.
44. On 1 January 2020, the coach received a letter from the club, inquiring about a possible new employment agreement.
45. On the same date, the coach referred to the unsuccessful negotiations on 29 December 2019 as well as to his letter of 31 December 2019 and repeated that no employment contract will be concluded between the parties.
46. On 2 January 2020, the coach received a “new offer” from the club and on the same date, the club allegedly hired a new coach.
47. On 16 January 2020, the coach sent a letter to the club, referring to the termination notice with effect as of 6 December 2019, requesting the following payments within the next seven days:
- EUR 379,166.62/- net as the remaining value - expressly agreed for the Club in several instances - under the Employment Contract's terms for the 2019/2020 sporting season;
- EUR 750,000.00/- net as remaining value under the Employment Contract's terms for the 2020/2021 sporting season; and
- EUR 225,833.32/- net as additional compensation equal to twenty (20) percent of the total remaining value of the Contract (i.e. 20 percent of EUR 1,129,166.62/(corresponding to EUR 379,166.62/- plus EUR 750,000.00/-).
48. Moreover, the coach requested the payment of EUR 1,354,999.94, corresponding to compensation for the breach of the agreement by the club.
49. On 21 January 2020, the club sent a letter to the coach, stating that it believes the contract was terminated by the coach without just cause.
50. The coach maintained that the payments, as requested in the letter on 16 January 2020, were not settled by the club.
51. On 13 April 2020, the Claimant lodged a claim in front of PSC, requesting the following:
1. To fully accept the present Claim.
2. To condemn the Respondent to pay to the Coach, to a bank account outside of Iran specified by the Coach, the net amount of EUR 8,736.55/- (outstanding remuneration) and an additional interest of S 0/o per annum on the aforesaid amount as follows:
- from 1 January 2020 until the date of effective payment;
or in the alternative
- from the date the present Claim has been filed to the FIFA PSC until the date of effective payment.
3. In addition, and related to the outstanding remuneration under lit. 2 above, to condemn the Respondent to pay to the Coach, to a bank account outside of Iran specified by the Coach, a penalty of EUR 10,000.00/· net per month or fraction of month, which shall be applied from 1 January 2020 until the date of effective payment.
4. In addition, to condemn the Respondent to pay to the Coach, to a bank account outside of Iran specified by the Coach, compensation equal to the net amount of EUR 1,344,516.08/- plus interest of 5 % per annum on the aforesaid amount as follows:
- from 29 January 2020 until the date of effective payment;
or in the alternative
- from the date the present Claim has been filed to the FIFA PSC until the date of effective payment.
5. In addition, to condemn the Respondent in the fight of the general legal doctrine of specificity of sports, to pay to the Coach, to a bank account outside of Iran specified by the Coach, an additional compensation in the net amount of EUR 324,999.96/- plus an interest of 5 % per annum on the foresaid amount from the date this present Claim is filed in front of the FIFA PSC until the date of effective payment.
6. To condemn the Club to pay any and all costs related to the present proceedings.
52. In his claim, the coach states that he terminated the contract with just cause “with the effects as of 6 December 2019”.
53. The coach maintained that in his letter of 28 November 2019, he duly notified the club as well as his legal counsels about the consequence of non-compliance with the outstanding salaries.
54. Moreover, the coach maintained that he sent a termination notice on 8 December 2019.
55. As to the just cause for termination, the coach referred to the PSC and CAS jurisprudence, according to which “the non-payment or late payment of remuneration by an employer does in principle – and particularly if repeated as in the present case – constitute “just cause” for termination of the contract”.
56. The coach submitted to be of the opinion that the club should have complied with its obligations until 5 respectively 8 December 2019, which was not the case. The coach therefore argues that in the moment of his termination, he had just cause to terminate.
57. Nonetheless, the coach acknowledged that the relevant payment has been performed on 20 December 2019. In this regard, the coach wished to point out that the club’s excuses about impossibility of a payment from IR Iran are, therefore, venire contra factum proprium.
58. The coach continued by stating that because the club’s violations of the employment agreement “constituted a continuous conduct”, the just cause to terminate is “further underlined by the aggravating circumstances”.
59. The coach further maintained that the outstanding amounts were of “substantial nature”, “corresponding to approximately three monthly salaries” at the time of the termination of the contract. Hence, the club substantially breached its main obligations as an employer.
60. The coach pointed out that he sent several warnings to the club, granting the latter enough time to comply with its contractual obligations.
61. As to the consequences, the coach pointed out the wording of the contractual clause regarding the early termination and deemed that such clause is applicable to the present matter. In accordance with the parties’ agreement, the coach maintained that the club shall pay him the amounts as follows:
a) In relation to the outstanding remuneration and penalty(ies):
Hence, and with regards to the aspect of outstanding remuneration, the Club shall pay to the Claimant the outstanding salaries from 1 December until 5 December 2019, equal to the net amount of EUR 8,736.55/- (corresponding to EUR 54, 166.66/· x 5 (days) : 31 (days)).
In addition, and due to the fact that the 45 days grace period for the payment of the EUR 8,736.55/-, which also should be applied with regards to the aspect of outstanding remuneration following the Employment Contract's termination, expired on 4 February 2020, an additional penal ty of EUR 10,000.00/- net per month or fraction of month shall be applied (cf. Article IV par. 2 of the Employment Contract).
b) In relation to compensation:
Against said background, he remaining value for the sportive season 2019/2020 equals the net amount of EUR 370,430.07 /- (corresponding to the monthly salaries from December 2019 until June 2020 (7 x EUR 54,166.66/ - ), deducted by the outstanding remuneration equal to EUR 8,736 .55/ - , i .e. the outstanding remuneration until 5 December 2019).
Furthermore, the Employment Contract ' s remaining value for the 2020/21 season corresponds to the net amount of EUR 750,000.00/-.
Hence, the Respondent shall pay basic compensation to the Claimant in the net amount of EUR 1,120,430.07/- (EUR 370,430.07/- + EUR 750,000.00/-).
In addition, and due to the fact that the Employment Contract's termination for just cause at the sole and exclusive responsibility of the Respondent occurred prior to 30 June 2020 , the Respondent , as per the clear wording of Article VII par. 3 of the Employment Contract, shall pay an additional compensation to the Claimant amounting to EUR 224,086.01/- net equal to twenty (20) percent of the total remaining value of the Contract (I.e. 20 percent of EUR 1,120,430.0//-).
Consequently, the Club Is requested to pay to the Claimant a compensational amount equal to EUR 1,344,516.08/- (One Million Three Hundred and Forty-Four Thousand Five Hundred Sixteen Euro and Eight Euro Cent Only) net.
c) In relation to additional compensation under the aspect of specificity of sport:
As set forth above, and with the clear intention to discredit the Claimant, the Respondent leaked on several instances confidential information to the public. This not only discredited the Coach, but also caused him considerable harm with regards to his reputation and credibility, i.e. important aspects with regards to finding a new employment.
Hence, the Respondent shall be condemned to pay to the Claimant an additional compensation equal to net EUR 324,999.96/- (EUR 54,166 ,66/ - times 6).
d) In relation to procedural costs:
ln accordance with Article 18 par. 1 of the FIFA Procedural Rules, the Respondent shall bear the relevant costs related to the present proceedings - also taking into account that the Claimant already anticipated the advance of costs, which shall be either reimbursed and/or paid by the Respondent.
62. The Club in its reply fully rejected the coach’s claim a lodged a counterclaim against him. In particular, the Respondent and Counter-Claimant claims that the contract was terminated by the coach without just cause, for the following reasons:
a) “there is an event of force majeure which made the payment of salaries or payment of salaries on time, virtually impossible. The Claimant was repeatedly informed of the Respondent’s impediment;
b) the Respondent never sought to evade its contractual responsibility and to the best it could, have been making payments via various third-party agents. The Respondent repeatedly bore the risk of monies being misappropriated/gone missing;
c) the Claimant’s bank of choice had on two (2) occasions rejected the transfer of money by the Respondent’s agents, thus making it impossible for the Respondent to meet the 5 December 2019 deadline;
d) the Claimant cannot be allowed to aprobrate and reprobate. On one hand, the Claimant verbally granted the Respondent a further extension of time to make payment of his demand and yet at the same time issued a termination notice; and
e) even after the alleged termination, the Claimant’s conduct suggest otherwise;
f) the Respondent at all material times was sincere to settle all the outstanding sums and in fact, had successfully done so (despite not admitting to owing all the sums demanded) with diplomatic assistance, some two weeks after the alleged date of termination; and
g) in any event, the amounts outstanding as at the date of the termination notice is not substantial”.
63. In this respect, the Respondent in its submissions makes a detailed description of the sequel of events leading to the termination and further up until 21 January 2020, the mains points of which are highlighted below:
a. “On or around 29 August 2019, the Respondent discovered that the Claimant had breached certain clauses in the Contract, namely Article II:
i. 13.1 Clause 2(a) by failing to attend the compulsory Pre-Match Press Conference of the Iran Pro League on 23 August 2019 and 28 August 2019 and compulsory Post-Match Press Conference of the Iran Pro League on 29 August 2019;
ii. 13.2 Clause 2(b) by failing to act in accordance with the Respondent’s instructions and behave appropriately before its Officials;
iii. 13.3 Clause 2(p) by using inappropriate language and behaviour during a Post-Match Press Conference on 23 August 2019;
iv. 13.4 Clause 2(m) by failing to respect the Club President;
v. 13.5 Clause 2(k) by commenting to third parties on Club matters thus causing the Respondent’s reputation to be in disrepute; and
vi. 13.6 Clause 2(h) by failing to respect and cooperate with Club designated interpreter/translator”.
b. 30 August 2019: the club’s President by email invited the coach to attend a meeting on the following day to discuss the Claimant’s poor behavior. The meeting invitation was accepted but not the allegations of poor behavior.
c. 31 August 2019: the club issued a notice to the coach of his alleged breaches and provided a deadline until 3 September 2019 for response.
d. 1 September 2019: the coach was requested to ignore the letter of 31 August 2019, which was issued before the meeting given the “positive results” achieved during such meeting.
e. 4 September 2019: the club notified the coach that the Iran Football Federation League Organisation requires the Persian version of the contract to issue the accreditation cards, inter alia. The coach and his team however refused to sign the Persian Contracts.
f. 8 September 2019: the club provided the extended Tourist Entry Visa of the coach and his team and notified him that, in order to obtain the work permit, they would have to leave Iran for one day. The club was able to obtain the work permits after the Director General for Employment of Expatriates accepted the unsigned Persian Contracts.
g. 10 September 2019: the coach formally demanded the payment of the July and August 2019 salaries, the balance of the signing on fee and a penalty fee by 25 September 2019, besides the “Additional benefits”.
h. 11 September 2019: “because of the Claimant’s and Assistant Coaches’ refusal to sign the Persian Contracts, the Iran Pro League Organisers refused to issue the AD Cards and only permitted the Claimant and Assistant Coaches as a temporary measure, to sit on the bench during matches”.
i. 16 September 2019: the club informed the coach inter alia that “due to the restrictions on the international transfer of money, the transfer of money to the Claimant’s account is practically impossible; […] the July 2019 salary was paid in full and exhibited two payment receipts each in the sum of EUR 27,083.00; the signing fee was paid in full and that the alleged outstanding amount is likely to be the bank charges imposed by the Claimant’s bank; there is no basis to pay the contractual penalty”.
j. 30 September 2019: the coach inter alia confirmed having received EUR 54,021 and “demanded for an alleged shortfall of EUR 145; demanded for the August 2019 salary, outstanding signing fee of EUR 871 and contractual penalty of EUR 12,500 for the delay in payment of the signing on fee” as well as “additional benefits, namely: a prepaid sim card, driver for the Claimant’s private use, that the Respondent signs a proposed addendum to the Contract to regulate the Respondent’s alleged contractual obligation vis-à-vis the Claimant’s lease agreements, and “adequate” medical insurance; and instructed that all future payments are to be made to the Claimant’s new bank account at UniCredit Bank Czech Republic and Slovakia, (Czech Account)”. The club had until 11 October 2019 to comply with the demands.
k. 9 October 2019: the club made the payment of EUR 54,167.00 to the coach via a third party agent Varengold Bank.
l. 11 October 2019: the club notified the coach of the payment of EUR 54,167 for the August 2019 salary on 9 October 2019 and “acknowledged to pay the EUR 145 and EUR 871 banking charges for the July 2019 salary and signing on fee, and EUR 10,967.75 contractual penalty for late payment of the signing on fee”; furthermore, it explained to have provided the coach with the requested additional benefits of the contract.
m. 11 November 2019: the coach denied receipt of the August 2019 salary and demanded for the August 2019, September 2019 and October 2019 salaries, the contractual penalty for the alleged non-payment of the August 2019 salary, the contractual penalty for the late signing on fee and the shortfall in the signing on fee and the July 2019 salary, by 26 November 2019.
n. 26 November 2019: the club expressed its surprise at the coach’s denial of having received the August 2019 salary given his long silence since 11 October 2019 and denied owing the contractual penalty for the alleged late payment of the August 2019 salary; furthermore, it informed the coach that 3 payments of EUR 17,950, EUR 19,517 and EUR 16,700 were made on 21 November 2019, and requested him to open a new bank account in Turkey.
o. 28 November 2019: the coach “denied receiving the August 2019 salary and alleged that the Varengold Bank SEPA receipt provides no definite proof that it was indeed transferred”; he also deemed that “the payments affected on 21 November 2019 shall be deemed to be payments for the August 2019 salary, thus attracting a contractual penalty for late payment” and requested the payment of the September and October 2019 salaries, the contractual penalties for the July 2019 and August 2019 salaries, the shortfalls in the July 2019 salary and the signing on fees to be paid by 5 December 2019 alongside the November 2019 salary, which would fall due in short.
p. 30 November 2019: the club inter alia informed the coach that 2 payments in the amount of EUR 27,000 and EUR 27,167 were made on 26 and 29 November 2019 to the Claimant’s account in Italy, since his Czech account was allegedly blocked, and requested him to confirm the receipt.
q. 1 December 2019: the coach requested the payment of EUR 186,481.75 by 5 December 2020 to his Czech account and informed that any amounts paid to his Italian account would be “immediately refused and the correspondent amount sent back to the respective remitters.” According to the club, there is no notification that any sums transferred to the Claimant’s account in Italy on 27 November 2019 and 29 November 2019 were rejected. “In fact, the Claimant later admits to receiving the transfer made on 29 November 2019”.
r. 2 December 2019: the coach was invited to attend a meeting in Iran to “negotiate a practical solution with regards to the mode of payment of the alleged contractual dues”.
s. 4 December 2019: the club allegedly attempted to make payments to the coach’s Czech account, but was informed that the latter was blocked. On the same day, the coach proposed to meet in Doha, provided the club paid all its dues by 5 December 2019.
t. 8 December 2019:
i. the coach terminated the employment contract with effect as from 6 December 2019;
ii. the club confirmed via email that the payment of the outstanding amounts would be made in 7 working days and invited the coach to attend a board meeting later on the day to discuss “team issues, future programs, engaging new players”;
iii. the coach rejected in full the content of the club’s email of 8 December 2019. “This is again surprising given the contents were merely to confirm the verbal agreement for an extension of time”.
u. 9 December 2019: the coach was informed that the club accepted his request to reduce the length of his contract from 2 years to 1 year.
v. 10 December 2019: the club inter alia confirmed that the outstanding payments shall be made on the following day.
w. 14 December 2019: the coach was notified that, because it was the weekend in Iran, the club was not able to remit the money to his new Italian bank account, but would do so on 16 December 2019. He was also requested to be present on 15 December 2019 to negotiate the terms of a new contract.
x. 15 December 2019: the coach confirmed he would be available “without assuming insofar any legal obligation” to discuss the terms of an eventual employment contract after receiving the due amounts in his bank account in Italy.
y. 16 December 2019: the Deputy Ambassador notified the coach that he received a cheque from the club and asked him to confirm whether he intended to collect it at the Embassy or the bank.
z. 17 December 2019: the coach indicated that he could not deposit any cheque if the source is the Islamic Republic of Iran. The payment was then made by Swift transfer.
aa. 21 December 2019: the coach requested a copy of the Swift transfer and stressed that this is the pre-condition for any eventual further discussion.
bb. 22 December 2019: the coach acknowledged receipt of the Swift transfer receipt and informed the club of the terms and conditions of an “eventual new Employment Contract”, which were non-negotiable and “might be subject to further amendments from our side only and are valid only if accepted within the following 24 hours from this e-mail.”
cc. 23 December 2019: the club agreed to all the terms except for the payment terms.
dd. 24 December 2019: “the club became aware of the Claimant’s social media feeds which were adverse to the Respondent’s interest and reputation. The Claimant was requested to be present in Tehran or to formally confirm in writing the terms by 25 December 2019, 10.00 a.m. Tehran time, failing which the Respondent shall assume no settlement is taking place”.
ee. 25 December 2019:
i. the coach “denied uploading anything adverse to the Respondent’s interest and reputation, and instead alleged that the Respondent had leaked the contents of his email to a popular Iranian website”.
ii. the club claimed the coach failed to accept its counter-proposal within the stipulated deadline and provided him with screenshots of his social media account (later deleted) evidencing his allegations of being mistreated by the club; it also informed the coach that the assistant coaches also made false accusations against the club in a WhatsApp group chat with first team players and denied having leaked the content of any emails. Finally, it gave him an extension until 26 December 2019, 10.00 a.m Tehran time to accept the terms of the new contract.
iii. the coach reinforced that the contractual terms conveyed on 22 December 2019 are non-negotiable and indicated that due to the alleged behaviour of the club of disclosing confidential documents between the parties the discussion about the possible return of the coach was jeopardized.
ff. 26 December 2019: the club refused that the termination of contract was with just cause and demanded the return of the keys to the coach’s apartment.
gg. 27 December 2019: the coach was again requested to confirm within the next 24 hours a venue for the parties to meet in person to finalise the terms of settlement.
hh. 29 December 2019: a meeting between the parties took place and according to the club the parties reached an amicable settlement, with the coach and his team agreeing to return to Tehran (note: this is disputed by the coach; no written evidence of an amicable settlement).
ii. 1 January 2020: the club referred to the meeting in Doha and requested the coach to confirm whether he would return to Tehran or not, to which the coach replied that no settlement was reached during the meeting in Doha.
jj. 16 January 2020: the coach requested the payment of compensation for having terminated the contract with just cause
kk. 21 January 2020: the club again denied that the contract was terminated with just cause.
64. Based on the aforementioned description of the events, the club deems that the contract was not terminated on 6 December 2019, since in the coach had orally agreed to provide the club 7 additional days to make the payment of any outstanding amounts. According to the club “This is corroborated with the Claimant’s own admission and action of meeting the Ambassador in Rome on 11 December 2019 to negotiate inter alia the mode of payment of the alleged outstanding amounts”. Furthermore, the club deems that it “was repeatedly led to believe that the Contract will be terminated only when parties finally agree to the terms of a ‘new contract’”.
65. The Respondent further submits that “based on the aforesaid, the Respondent disputes that the Contract was terminated on 6 December 2019. However, the Respondent is unable to pinpoint an exact date when it was terminated since there is no formal notice by either Party, apart from the Claimant’s letter of 8 December 2019. If FIFA PSC determines that the Contract was terminated on 6 December 2019, the Respondent submits that there was “no just cause” to terminate the Contract”.
66. In this respect, the club claims that the restrictions for the international money transfer from Iran constitute a force majeure and thus justify some delays in the payment of the coach’s remuneration. In particular, the club claims that the aforementioned difficulties are “an objective impediment beyond its control, unforeseeable and cannot be avoided by the exercise of due care”.
67. The club also denies that a penalty fee of EUR 12,000 should be due for the late payment of the August 2019 salary, since this amount was paid on 9 October 2019 via the Varengold bank and only on 11 November 2019 the coach objected to having received this amount, even though the club had requested him to confirm receipt on 11 and 15 October 2019. The salary of August 2019 was fully paid on 21 November 2019, which is acknowledged by the coach. “Had the Claimant diligently checked his account and notified the Respondent earlier, before the expiration of the 45 days grace period, i.e. on or before 15 October 2019, the Respondent could have easily verified with Varengold bank and rectify (if need be, which is not the case here) the payment mode”.
68. Furthermore, the Respondent submits that the September 2019 salary was also fully paid in two instalments on 26 and 29 November 2019. “It is extremely odd that the Claimant only admits to receiving one of the two transfers when both transfers were made by the same ordering customer, same ordering bank, to the same account of the Claimant”. As per the club’s perspective, substantial evidence of payment was provided and the salary of September 2019 is to be considered fully paid.
69. The club also pointed out that the termination followed the coach’s default notice of 28 November 2019, which demanded the payment by 5 December 2019 of the following amounts: EUR 12,000 as late payment fees for August 2019 salary and EUR 108,332.00 “net together with all other outstanding amounts”, including the September 2019 and October 2019 salaries. Considering the reasoning developed in the previous paragraphs, the club deems that the “August 2019 salary was paid in full on 9 October 2019; there is no basis to impose EUR 12,000 as late payment fees for the August 2019 salary; the three (3) payments made in November 2019 ought to be applied as payment of the September 2019 salary (and not August 2019 salary); and the payments made on 26 and 29 November 2019 ought to be applied as payment of the October 2019 salary. […] Therefore, as of 5 December 2019, what remains due under the 28 November 2019 demand is merely EUR 66,149.75 being the October 2019 salary, late payment fees for the signing-on fees, and balance signing on-fees and balance July 2019 salary. This sum, taken as a whole is not even two (2) monthly salaries of the Claimant and thus, cannot surely be deemed as a “substantial” amount”.
70. The club also mentioned that in spite of the coach’s insistent requests to have his remuneration paid to his bank account in Czech Republic, these payment attempts by the club were unsuccessful and therefore an extension of 7 days to pay was allegedly granted by the coach.
71. Thus, the club deems that the coach terminated the contract without just cause and it is therefore entitled to counterclaim against him and request the payment of compensation for breach of contract. In this particular, the club refers to clause VII of the contract, which provides that the compensation for unjustified breach should amount to the full residual value of the contract and an additional compensation of 20% of it, since the contract was terminated before 30 June 2020.
72. The club claims it is also entitled to counterclaim a refund of the amounts allegedly paid in excess to the coach, namely EUR 88,392. In this respect, the club claims that “It is not in dispute that on 20 December 2019 a SWIFT transfer for the sum of EUR 159,541.75 (Sum) was made to the Claimant. This amount was paid in compliance of the 1 December 2019 letter less the sum of EUR 26,940.00 which on 8 December 2019 after the purported termination of the Contract, the Claimant admitted having received on 29 November 2019, one week before the purported termination”. The club further explains the following: “At this juncture, one will question why then did the Respondent pay the Sum if it did not agree to the computation? The reason is simple: The Respondent was desperate to appease the Claimant so that he will return to the Club”.
73. In the alternative, in case FIFA decides that the coach had a just cause to terminate the contract, the club deems that he should not be entitled to the amount of compensation requested. In particular, the club claims that “assuming the Contract was terminated on 6 December 2019, the pro-rated sum of EUR 8,736.55 immediately became due. To impose a “EUR 10,000 net per month or fraction of month which shall be applied from 1 January until the date of effective payment (…) due to the fact that 45 days grace period for the payment of the EUR 8,736.55 (…) expired on 14 February 2020” does not make sense, and have no legal basis. Neither is such penalty fair bearing in mind a claim of five percent (5%) default interest is also made”.
74. Moreover, the club also deems that no additional compensation should be due to the coach, as the Agreement already provides for such and no evidence of any leaking of confidential information by the club was provided by the coach.
75. Finally, the coach should not be entitled to any procedural compensation.
76. The Respondent requests that the FIFA PSC:
a. determines that the Contract was not terminated on 6 December 2019 or alternatively, was not terminated with “just cause” on 6 December 2019;
b. allow the Respondent’s counter-claim and order the Claimant to pay to the Respondent:
i. compensation for terminating the Contract without “just cause” in the sum of EUR 1,120,430.07*; and (*EUR 1,120,430.07 = EUR 370,430.07 as pro-rated December 2019 salary plus salaries for January 2020 until June 2020; and EUR 750,000 as salaries for July 2020 until June 2021).
ii. additional compensation for terminating the Contract without “just cause” before 30 June 2020 in the sum of EUR 300,000*; (*EUR 300,000 = 20% of EUR 1,500,000, i.e. the total value of the contract).
c. order the Claimant to reimburse the Respondent the sum of EUR 88,392* being excess of monies paid to the Claimant; (* EUR 88,392 = EUR159,541.75 paid on 29 December 2019 via Swift transfer, composed of:
i. EUR 10,967.75 penalty for late payment of signing on fee;
ii. EUR 871 shortfall in signing on fee;
iii. EUR 145 shortfall in July 2019 salary;
iv. EUR 12,000 penalty for late payment of August 2019 salary;
v. EUR 27,226 balance September 2019 salary;
vi. EUR 54,166 October 2019 salary; and
vii. EUR 54,166 November 2019 salary;
Minus:
viii. EUR 12,000 penalty for August 2019 salary;
ix. EUR 22,226 balance September 2019 salary; and
x. EUR 54,166 October 2019 salary which the club deems should not have been paid to the coach).
d. (in the alternative if FIFA PSC determines that the Contract was terminated with “just cause” on 6 December 2019) dismiss the Claimant’s claim for:
i. contractual penalty for delayed payment over 45 days to be applied on the pro-rated December 2019 salary; and
ii. additional compensation under the doctrine of specificity of sports; and
e. dismiss the Claimant’s claim for contribution of its procedural costs.
77. When given the opportunity to file a response to the counter-claim, the Claimant and Counter- Respondent entirely rejected the club’s counterclaim, on the following terms “which to big extent is wrong, unfounded and, inter alia, contains blatant lies” and insists on the content of his claim and on the termination with just cause with effect as from 6 December 2019.
78. The coach points out that the witness statement of Mr Hamed Afzali is “unreliable and without value”, since he has a very close professional and personal connection with the club and cannot therefore be considered as impartial. In particular, he claims that “due to his strong affiliation and commitment towards the Club it can be concluded that Mr. Afzali would have signed any document whatsoever in an attempt to “help” the Respondent – regardless whether such document is truthful or, as in the present matter, it is not”.
79. Furthermore, the Counter-Respondent submits that the witness statement is “full of obvious lies, inaccuracies”. In particular, the coach highlights a few parts of the witness statement, which are in his opinion particularly wrong and therefore unreliable, namely its Sections 29, 34. As this document is virtually the only piece of evidence provided by the club in its reply, the coach concludes that the club did not manage do discharge its burden of proof.
80. The coach also points out that the club failed to provide any evidence of the breaches allegedly committed by him on 29 August 2019, which he vehemently denies.
81. The fact that the club required the coach and his team to sign a Persian contract in September 2019, when the Agreement was already fully in force, with the alleged purpose of issuing accreditation cards can only be interpreted as an “abusive conduct of a party aiming at forcing the counterparty to terminate or change the terms of the contract”, which would give any player a just cause to terminate the contract as per art. 14 par. 2 of the RSTP.
82. The coach vehemently rejects the club’s allegation related to force majeure in the present case. In this respect, he explains that “on at least five occasions the Parties in the Employment Contract expressly agreed – with regards to the Respondent’s main obligations under the Employment Contract – that the payment of salary (and other payments) should be made by the Club to the Claimant to a bank account of the Coach outside of Iran and alike specified by the Coach. Not once during the relevant negotiations leading up to the conclusion of the Employment Contract, the Club would have mentioned that it may have difficulties to transfer the Coach’s salary abroad. Finally, it is the Claimant’s understanding – as reported in mass media worldwide – that US sanctions on Iran, to which the Respondent seems to refer in its Response in vague manner, had been reinstated in November 2018, i.e. months prior to the Employment Contract’s conclusion (Exhibit no. 3). Consequently, it can be concluded that the payment method, in terms of a payment from the Club to the Coach and to a banking account outside of Iran, was clearly regulated and agreed by and between the Parties in June 2019 and accordingly implemented in the Employment Contract”.
83. Furthermore, the Counter Respondent points out that his “bank of choice DID NOT reject any ‘transfer of money of the Respondent’s agents’”. He also indicated that money transfers from Iran to a foreign country are not “practically impossible”, as alleged by the club in its letter of 16 September 2019. “In fact, the Respondent at the time of the Respondent’s aforesaid letter already had executed payments on 29 July 2019, 26 August 2019 and 2 September 2019 to the Coach’s Bank Account – Italy BNL. Therefore, it can be concluded that the Respondent’s remarks are not correct. Payments in favour of the Coach – whereas insofar compliance with the Employment Contract’s terms was the main obligation of the Respondent – obviously were possible throughout the Employment Contract’s execution”.
84. The coach states that the club has failed to meet its financial obligations as per the Agreement since the very beginning of it and provided tables indicating the delay in the payment of his remuneration.
85. Based on the aforementioned and the tables provided, the coach addressed the issue of some payments allegedly made by the club, which in fact did not occur or at least not as indicated by the club. The extended explanation of the replica can be summarised as follows:
a. EUR 54,157 allegedly paid on 9 October 2019 to the coach’s Czech bank account: this amount referred to the salary of August 2019, which had already been delayed for a considerable period of time. The Swift transfer via the Varengold Bank is evidenced by the club through a document named “Sepa Transfer” (cf. exhibit 24 of the claim), which according to the coach is not a conclusive proof of payment. As per the coach, “the aforesaid amount was never received on the Coach’s Bank Account – Czech Republic Uni Credit, which is confirmed through the relevant banking statements. […] Insofar, said Sepa Transfer merely says that the purpose of payment would be a “Pre-Payment”. Moreover, it is expressly mentioned that the “Execution takes place at the next possible point in time”, which serves as a further confirmation that the relevant payment has not been done yet when the Sepa transfer was issued. Therefore, said document at its end also states “Dieser Ausdruck ist nicht rechtsverbindlich”, i.e. saying that the relevant document is without legal effect”. The coach also rejects the club’s allegation that his Czech account would not be working. “In fact, and as can be seen from the relevant bank statements the Coach’s Bank Account – Czech Republic Uni Credit was working perfectly well. In further confirmation of the above, the UniCreditBank Czech Republic and Slovakia a.s. with regards to the Coach’s Bank Account – Czech Republic Uni Credit also expressly confirms in a letter of 20 July 2020 that during the period from 1 September 2019 until 31 December 2019 it recorded – as can be expected from any bank worldwide – those transactions in its system, which are listed in the account statements (Exhibit no. 4). Hence, obviously no other transactions related to the Coach’s Bank Account – Czech Republic Uni Credit were made during the aforesaid period and recorded by the UniCreditBank Czech Republic and Slovakia a.s.” Thus, the club did not properly discharge its burden of proving the payment of such amount on the indicated date.
b. The payments made on 21 November 2019, in the amounts of EUR 17,950, EUR 19,517 and EUR 16,700 were acknowledged by the coach via correspondence of 28 November 2019 (cf. Exhibit no. 29 to the Claim) and correspond to the salary of August 2019, which is also confirmed by the club via its correspondence of 30 November 2019.
c. The payments of EUR 27,000 and EUR 27,167 made on 26 respectively 29 November 2019: the coach confirmed via his correspondence of 8 December 2019 the receipt of one instalment in the amount of EUR 26,940 only and provided in this respect bank statements of his Italian account, showing a payment of EUR 26,940 on 29 November 2019 in the amount of EUR 26,940.00. “Whereas the Claimant can proof that he never received the alleged second instalment of such aforesaid payment, the Respondent cannot proof actual payment”.
86. Based on the foregoing, the coach states that the amount of EUR 159,541.75 remained outstanding on 5 December 2019 and therefore on 6 December 2019 the coach had a just cause to terminate the contract.
87. The coach also states that he “DID NOT grant the Respondent – on or around 6 December 2019 – with an additional extension of seven working days to execute the outstanding payment of EUR 159,541.75/- and yet, at the same time, issued a termination notice”. “In fact, the Claimant in its letters of 28 November and 1 December 2019 expressly reminded the Respondent that it should also pay until 5 December 2019 at the latest all relevant outstanding amounts – expressly including the salary for November 2019, which would become due until 30 November 2019”.
88. He further stated that “Respondent’s post-termination behaviour does not change the fact the Employment Contract at that time already had been terminated for just cause and at the sole and exclusive responsibility of the Club since 6 December 2019”. He also points out that “The Respondent’s view – according to which outstanding amounts equal to EUR 159,541.75/-, corresponding to approximately three-monthly salaries under the Employment Contract’s terms would not be substantial – is remarkable. Yet, the Respondent’s attitude in this regard – full of disrespect, dishonesty and carelessly with regards to its contractual obligations towards the Claimant – perfectly reflects the Respondent’s behaviour throughout the Employment Contact’s execution”.
89. Furthermore, the coach claims that his termination letter was clear in the sense that the Agreement was to be considered as terminated with effect as from 6 December 2019 and the subsequent negotiations about a new employment contract under different terms were not to be interpreted as a resumption of their previous employment relationship. The coach claims that he always made it clear that a new employment contract would only be negotiated in case the amount of EUR 159,541.75, corresponding to outstanding remuneration as per the original employment contract, would be paid in full. The coach claims that the club acknowledged in several occasions that this amount remained outstanding and finally paid it in full on 22 December 2019 to his new Italian bank account with the description “Outstanding amounts as for Employment Contract dated 20190606” (cf. Exhibit no. 64 to the Claim). Any argumentation of the club to the contrary is, at this point, simply incorrect, according the Counter Respondent.
90. Even though the aforementioned amount was paid in full by the club on 22 December 2019, the latter did not accept the terms of a possible new contract proposed by the coach, as it confirms in its reply. The coach vehemently denies having ever concluded a settlement agreement with the club and points out that no evidence of such was provided by the club. The Counter Respondent uses the following terms:
“In light of the established facts, and with expressed reference to the Claim, there is no doubt whatsoever that the Claimant terminated the Employment Contract, with effect as of 6 December 2019, for just cause and at the sole and exclusive responsibility of the Club. Hence, in light of the contractual stipulations between the Parties in the Employment Contract, which expressly foresaw the consequences of its early termination from either side, the Claimant’s Claim shall be accepted in full”.
91. Based on the foregoing, the coach insists that his claim should be fully accepted and the counterclaim rejected, on the following terms:
a. To fully accept the Claimant’s Claim.
b. To condemn the Respondent to pay to the Coach, to a bank account outside of Iran specified by the Coach, the net amount of EUR 8,736.55/- (outstanding remuneration) and an additional interest of 5 % per annum on the aforesaid amount as follows:
- from 1 January 2020 until the date of effective payment;
or in the alternative
- from the date the present Claim has been filed to the FIFA PSC until the date of effective payment.
c. In addition, and related to the outstanding remuneration under lit. 2 above, to condemn the Respondent to pay to the Coach, to a bank account outside of Iran specified by the Coach, a penalty of EUR 10,000.00/- net per month or fraction of month, which shall be applied from 1 January 2020 until the date of effective payment.
d. In addition, to condemn the Respondent to pay to the Coach, to a bank account outside of Iran specified by the Coach, compensation equal to the net amount of EUR 1,344,516.08/- plus interest of 5 % per annum on the aforesaid amount as follows:
- from 29 January 2020 until the date of effective payment;
or in the alternative
- from the date the present Claim has been filed to the FIFA PSC until the date of effective payment.
e. In addition, to condemn the Respondent in the light of the general legal doctrine of specificity of sports, to pay to the Coach, to a bank account outside of Iran specified by the Coach, an additional compensation in the net amount of EUR 324,999.96/- plus an interest of 5 % per annum on the foresaid amount from the date this present Claim is filed in front of the FIFA PSC until the date of effective payment.
f. To fully reject the Respondent’s counterclaim.
g. To condemn the Club to pay any and all costs related to the present proceedings”.
II. CONSIDERATIONS OF THE PLAYERS´ STATUS COMMITTEE
1. First of all, the Single Judge of the PSC analysed whether he was competent to deal with the case at hand. In this respect, he referred to the wording of art. 21 of the 2019 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: “the Procedural Rules”), as well as to the fact that the present matter was submitted to FIFA on 13 April 2020 and decided on 3 November 2020. Therefore, the Single Judge concluded that the June 2020 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 c) of the Regulations on the Status and Transfer of Players, the Single Judge of the PSC is competent to deal with matters which disputes between employment-related disputes between a club or an association and a coach of an international dimension.
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 13 April 2020, the March 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. Within this context, the Single Judge noted that it is uncontested that the Parties signed the agreement on 6 June 2019 valid as of 1 July 2019 until 30 June 2021.
6. In this regard, the Single Judge stated that whilst the parties agree that the agreement was terminated by the coach, it is evident that they disagree upon the date in which this occurred.
7. As a result, the Single Judge deemed appropriate to establish when the agreement was terminated.
8. Analysing the documentation on file, it became clear to the Single Judge that the agreement was terminated by the Claimant on 8 December 2019, with effect as from 6 December 2019.
9. As for the Respondent’s allegations in which, it deems that due to the subsequent negotiations between the parties regarding the possible conclusion of a new employment contract the coach somehow withdrew his termination, the Single Judge stated that this argument does not seem plausible and furthermore, it is not supported by any documentary evidence.
10. Therefore, the Single Judge confirmed that the agreement was terminated by the coach with effect as from 6 December 2019.
11. In continuation, the Single Judge observed that both parties has antagonistic positions regarding the termination of the agreement.
12. On the one hand, the Single Judge noted that the Claimant argued having terminated the agreement with just cause taking into account that on the date of termination, the amount of EUR 159,541.75 remained outstanding in spite of his default notices.
13. On the other hand, the Single Judge observed that the Respondent deemed that the termination of the agreement made by the Claimant was without just cause, due to the following arguments:
a. the coach had granted the club a 7-day extension as from 5 December 2019 in order to pay that amount,
b. the non-payment was due to a situation of force majeure, namely the international sanctions on Iran,
c. the payments made by the Respondent as a whole “is not even two (2) monthly salaries of the Claimant and thus, cannot surely be deemed as a “substantial” amount”;
d. the coach had committed several breaches of the employment contract.
14. At this stage, the Single Judge decided to analyze the Respondent´s arguments in detail.
15. As for the alleged extension of deadline for payment (cf. point 13.a. above), the Single Judge underlined that the coach vehemently rejects the alleged extension and, in addition, no written evidence of such deadline having ever been granted by him.
16. Moreover, the Single Judge observed that the letter to which the Respondent refers was issued by the club itself and drafted rather in the sense of an extension request, which was not accepted by the coach.
17. Therefore, the Single Judge concluded that the Respondent´s argument about having an extension of deadline to pay granted by the Claimant must be rejected.
18. Regarding the argument of “force majeure” (cf. point 13.b. above), the Single Judge noted that the Respondent claims that the international sanctions on Iran constitute a matter of force majeure, making it almost impossible for the club to make international payments.
19. In this respect, the Single Judge emphasised that whilst this is a recurrent argument from clubs from Iran, it cannot be accepted as a reason not to comply with their financial obligations towards their employees. Furthermore, the Single Judge noted that the agreement mentions several times that the salaries shall be paid to a European bank account, indicated by the coach.
20. What is more, the Single Judge underlined that at the moment of signing the agreement, international sanctions on the Respondent´s country did not constitute an unexpected event out of the club’s control or knowledge.
21. For all the above reasons, the Single Judge concluded that the international sanctions imposed against Iran do not constitute a force majeure event and do not exempt the club of its contractual obligations towards the coach.
22. In relation to the alleged payments (cf. point 13.c above), the Single Judge emphasized that the club bears the burden of proving the payment of the coach’s salary in accordance with the agreement.
23. The Single Judge pointed out that based on the submissions, it is undisputed by the parties that several amounts were indeed paid late by the Respondent. The Single Judge added that the club however indicates that some amounts were paid on an earlier date, avoiding the incidence of the penalty fee. However, the Single Judge noted that the coach disputed the club’s argumentation in this regard.
24. Therefore, the Single Judge decided to analyze in detail the different payments of remuneration allegedly made by the Respondent.
25. First, the Single Judge focused his attention to the amount of EUR 54,157 allegedly paid by the Respondent on 9 October 2019 (allegedly related to the salary of August 2019). Based on the documentation on file, the Single Judge observed that the “Sepa Transfer”, which according to the coach is not a conclusive proof of payment indeed mentions that it refers to a pre-payment and hence it has not legal effect.
26. In addition, the Single Judge noted that the coach denies having received such amount and relies on a bank statement of his own bank account. In view of the coach’s denial, the Single Judge declared that the club did not provide enough evidence that such payment was indeed made on that date and therefore its argument in this regard cannot be accepted.
27. Secondly, the Single Judge analysed the payments of EUR 17,950, EUR 19,517 and EUR 16,700 allegedly paid by the Respondent on 21 November 2019. In this respect, the Single Judge noted that all payments were acknowledged by the coach and correspond to the salary of August 2019. At this stage, the Single Judge was keen to emphasize that without entering the question of the proportionality of the penalty fee stipulated in the agreement, we must note that the late payment of the relevant salary triggered the application of such fee.
28. Thirdly, and with regard to the payments of EUR 27,000 and EUR 27,167 allegedly paid by the Respondent on 26 respectively 29 November 2019, the Single Judge noted that the coach confirmed the receipt of one instalment in the amount of EUR 26,940 only and provided in this respect, bank statements of his Italian account, showing the relevant payment of EUR 26,940 on 29 November 2019. In this respect, the Single Judge pointed out that the Respondent did not provide further evidence proving actual payment of the other instalment.
29. In light of the aforementioned and based also on the extensive calculations presented by the Claimant, the Single Judge concluded that on the date of termination the amount of EUR 159,541.75 remained outstanding, corresponding to:
- EUR 10,967.75 as penalty for the late payment of the signing-on-fee;
- EUR 871 as outstanding part of the signing-on-fee;
- EUR 145 as outstanding part of the July 2019 salary;
- EUR 12,000 as financial penalties for the delay longer than 45 days concerning the August 2019 salary;
- EUR 27,226 as outstanding part of the September salary;
- EUR 54,166 as October 2019 salary; and
- EUR 54,166 as November 2019 salary.
30. The Single Judge further stated that the aforementioned amount was not only paid in full by the club on 22 December 2019, but also acknowledged by the latter as outstanding remuneration on several occasions.
31. For the sake of good order, the Single Judge wished to emphasise that a full payment of the outstanding remuneration after the termination of the agreement has no influence on the analysis of its justice by this deciding body.
32. Subsequently, the Single Judge referred to the alleged breaches of the coach (cf. point 13.d. above) and noted that these alleged breaches are vehemently denied by the coach.
33. Moreover, the Single Judge observed no evidence that the aforementioned breaches were in fact committed by the coach was provided by the club. Therefore, the Single Judge concluded that this argument of the club must also be rejected.
34. Based on all the above, the Single Judge concluded that on 8 December 2019 the amount of EUR 159,541.75 corresponding to at least 2.5 monthly salaries remained outstanding, in spite of the coach’s previous default notices and without a valid justification from the club.
35. Therefore, the Single Judge declared that the coach had just cause to terminate the agreement with effect as from 6 December 2019.
36. Once the previous points have been established, the Single Judge had to address the consequences. Namely if there is any outstanding remuneration, if compensation shall be paid and if there is any other consequence for the party in breach.
37. The Single Judge took note that the only amount claimed by the coach as outstanding was the pro rata remuneration of 5 days in December 2019 plus the corresponding penalty for late payment.
38. In this respect, the Single Judge underlined that as the salary of December 2019 had not fallen due yet by the time of termination, no outstanding salary was due to the coach and consequently no penalty for late payment thereof.
39. What is more, the Single Judge pointed out that the salary of December 2019 will be included in the amount of compensation.
40. In relation to the compensation, the Single Judge noted that the agreement contains a compensation clause in its clause 7.3, which reads as follows:
“In the event the Club terminates the Contract and such termination is not due to a just cause or a mutual termination agreement between the Parties or the Coach terminates the Contract due to a just cause, the Club shall pay to the Coach, in addition to any amounts accrued up to the date of such termination, a compensation equal to the full remaining value of the Contract, which shall be grossed up with any further amount due for incurred taxation derived from tax residence considerations due to such early termination. The aforesaid due compensation amount shall be paid in one (1) lump sum within seven (7) working days from the date of the early termination. In case such termination takes place prior to 30.06.2020, then the Club shall pay to the Coach an additional compensation equal to twenty-per-cent (20%) of the total value of the Contract, which shall be grossed up with any further amount due for incurred taxation derived from tax residence considerations due to such early termination. The aforesaid due compensation amount shall be paid in one (1) lump sum within seven (7) working days from the date of the early termination”.
41. After an exhaustive analysis of said clause, the Single Judge observed that the clause is reciprocal (i.e. the agreement also contains a similar compensation clause in case of termination without just cause by the coach) and proportionate, establishing that the residual value of the contract is due.
42. Furthermore, the Single Judge deemed that the 20% additional compensation in case of termination before 30 June 2020, as is the case at hand, is also reciprocal and proportionate and therefore it should be applicable.
43. In conclusion, the Single Judge decided to partially accept the claim of the Claimant and determined that the latter is entitled to receive from the Respondent the amount of EUR 1,354,999.94 net as compensation for breach of contract plus an interest of 5% p.a. as from 29 January 2020 (i.e. as requested by the coach) until the date of effective payment. Said amount is calculated as follows:
a. the residual value of the contract: salaries from December 2019 to June 2020 (i.e. 7 x EUR 54,166.66 = EUR 379’166.62) in addition to the full value of 2020/2021 season (EUR 750,000), which results in a total of EUR 1’129’166.62
b. 20% additional compensation as per Clause 7.3 of the Agreement: EUR 225’833.32
44. The Single Judge finally referred to the claim for compensation “for the specificity of sport”, which is rejected, as it has no contractual basis.
45. The Single Judge concluded its deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected and the counterclaim lodged by the Respondent/Counter-claimant is also rejected.
46. 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 proceedings before the Players’ Status Committee including its Single Judge, costs in the maximum amount of CHF 25’000 are levied. The relevant provision further states that 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).
47. Moreover, the Single Judge referred to art. 18 par. 1 ii. of the Procedural Rules according to which “For any claim or counter-claim lodged prior to 10 June 2020 which has yet to be decided at the time of this temporary amendment, the maximum amount of procedural costs levied shall be equivalent to any advance of costs paid”.
48. In respect of the above, and taking into account that the Claimant is the successful party in the present proceedings, and his claim is partially accepted, the Single Judge concluded that both parties shall bear the costs of the proceedings but in different percentages.
49. Furthermore, and according to art. 18 par.1 ii. of the Procedural Rules the costs of the current proceedings shall be equivalent s the maximum amount paid by the parties as advance of costs.
50. On that basis, the Single Judge held that the advance of costs paid by each party in the present proceedings is CHF 5,000. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings correspond to CHF 10,000.
51. In conclusion and considering the specific circumstances of the case, the Single Judge determined the costs of the current proceedings in the amount of CHF 10,000 to be borne by the Claimant in the amount of CHF 3,000 and by the Respondent in the amount of CHF 7,000.
52. In this respect, the Single Judge pointed out that taking into account that the Claimant already paid an advance of costs in the amount of CHF 5,000 during the present proceedings, the latter is exempted to pay the procedural costs amounting to CHF 3,000.
53. Finally, the Single Judge underlined that taking into account that the Respondent already paid an advance of costs for CHF 5,000 during the present proceedings, the latter has to pay the remaining amount of CHF 2,000 to FIFA.
III. DECISION OF THE PLAYERS' STATUS COMMITTEE
1. The claim of the Claimant/Counter-Respondent, Andrea Stramaccioni, is partially accepted.
2. The counterclaim of the Respondent/Counter-Claimant, Esteghlal FC, is rejected.
3. The Respondent/Counter-Claimant has to pay to the Claimant/Counter-Respondent, within 30 days as from the date of notification of this decision, the following amount:
- EUR 1,354,999.94 net as compensation for breach of contract plus interest of 5% p.a. as from 29 January 2020.
4. Any further claims of the Claimant/Counter-Respondent are rejected.
5. In the event that the amount due to the Claimant/Counter-Respondent in accordance with the above-mentioned number 3. plus interest is not paid by the Respondent/Counter-Claimant within the stated time limit, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision.
6. The Claimant/Counter-Respondent is directed to inform the Respondent/Counter-Claimant immediately and directly of the account number to which the remittances are to be made and to notify the Single Judge of the Players’ Status Committee of every payment received.
7. The final costs of the proceedings in the amount of CHF 10,000 are to be paid by the parties to FIFA (cf. note relating to the payment of the procedural costs below) as follows:
a. CHF 3,000 by the Claimant/Counter Respondent;
b. CHF 7,000 by the Respondent/Counter-Claimant.
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).
NOTE RELATING TO THE PAYMENT OF THE PROCEDURAL COSTS:
If applicable, payments to FIFA should be made by wire transfer in Swiss francs (CHF) to the following bank account:
366.677.01U (FIFA Players’ Status) UBS Zurich,
SWIFT: UBSWCHZH80A, Clearing number 230, IBAN: CH 27 0023 0230 3666 7701U
Please mention the applicable reference number
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
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