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 11 August 2020

Decision of the

Single Judge of the Players' Status Committee

passed on 11 August 2020,

regarding an employment-related dispute concerning the coach Vukašin Poleksić

BY:

Roy Vermeer (Netherlands), Single Judge of the PSC

CLAIMANT:

VUKAŠIN POLEKSIĆ, Montenegro

Represented by Mr Davor Lazić

RESPONDENT:

NYIREGYHAZA FC, Hungary

I. FACTS OF THE CASE

1. On 1 October 2019, the Montenegrin assistant coach, Vukašin Poleksić, (hereinafter: the Claimant or coach), and the Hungarian club, Nyiregyhaza FC, (hereinafter: the Respondent or club) concluded an employment contract valid as from the date of signature until 30 June 2021 (hereinafter: the contract), according to which the Respondent undertook to pay the Claimant the a monthly salary of Hungarian forint (HUF) 1,091,500.

2. Pursuant to clause II of the contract, the coach “shall be obliged as follows:

a) To take part in team or individual trainings, preparations, training camps, matches organized and assigned to him by the Employer, as well as to participate in other events, programs determined by the Employer, and to follow the instructions of the professional management in the course of the above and otherwise as well;

b) To cooperate at all times with the executives, coaches, athletes of the Employer and to cooperate in a sportmanlike manner during matches, trainings, training camps and other occasions. To endeavour not to harm or jeopardize with his work or behaviour the physical well-being or the health conditions of others and not no cause monetary or moral damages to others.”

3. According to clause IX of the contract, the parties agreed upon the following: “The Employer may terminate the employment relationship with notice with immediate effect, if the Employee gravely breaches his significant obligations arising out of the employment contract or if the employment relationship cannot be upheld due to the behavior of the Employee, particularly in the following cases:

- the breach by the Employee of the obligations specified in Section II of the employment contract, or the obligations so specified in the employment contract;

- negatively influencing the workplace and/or behaving in a way that is conflicting or detrimental to or makes the cooperation with the colleagues impossible in particular if, therefore such colleagues or athletes indicate their objections regarding the cooperation.”

4. On 6 November 2019, the Respondent, via letter, terminated the Claimant’s contract, stating the following:

“I, the undersigned Attila Kozák as managing director of the Employer Nyíregyháza Spartacus Football Club Kft. (registered seat: 4400 Nyíregyháza, Sóstói u. 24/A., company registration number: 15 09 066456, tax number: 12510609-2-15) and the person exercising employer’s rights hereby notify Vukasin Poleksic employee (born: Niksic, 30 August 1982) that as of 7 November 2019 he is being released from the duty to work until the termination of the employment contract in effect from 1 October 2019.”

5. On 20 November 2019, the Respondent sent a further letter to the Claimant, titled “termination of employment with immediate effect”, according to which the club informed the assistant coach that the employment relationship had been terminated “with immediate effect” due to “the breach of significant obligations set out in Section II.5. a) and d) as well as Section IX.5. paragraph 1 and 6 of the Employment Contract and points a) and b) of the Notice”. In this respect, the Respondent sustained that the assistant coach “had been absent from the video analysis of the team held on 5 November 2019 at the Novotel Hotel in Székesfehérvár, on the night before the 2nd division match against BFC Siófok on 6 November 2019 and [the coach] failed to explain [his] absence”. The Respondent further held that the Claimant’s attitude had been “contradictory to the requirement of organized cooperation”.

6. As per the Claimant, the Respondent “refused to pay any contractual obligation towards the Assistant Coach as of 20 November 2019” and continued by maintaining that he “addressed the issue with the Club on numerous occasions since November 2019, without receiving any specific response”.

7. On 21 February 2020, the Claimant sent a letter to the Respondent informing the latter that it “did not comply inter alia with contractual obligations towards the assistant coach as specified in paragraph IV.1. of the Employment contract as of November 2019”. As regards the termination of the employment relationship, the Claimant maintained that the club’s decision was “completely arbitrary and not based on any objective criteria” and requested the payment of the following amounts:

i. “519,743.00 HUF, plus the interest as of 11 December 2019 until the payday; as the remaining salary for November 2019;

ii. 1,090,500.00 HUF, plus the interest as of 11 January 2020 until the payday; as the salary for December 2019;

iii. 1,090,500.00 HUF, plus the interest as of 11 February 2020 until the payday; as the salary for January 2019;

iv. 18,538,500.00 HUF, as the remaining salary for period February 2020 – June 2021, in a case the club holds to its unfounded Decision, since the club did not fulfil its obligations towards the assistant coach and due to the fact that the Employment contract was not terminated with just cause by the Club.”

8. According to the aforementioned letter, the Claimant informed the Respondent that he had “the right to terminate the Employment contract […] with just cause since the club did not fulfil its obligations towards the assistant coach for more than three months”. Having said this, the Claimant provided the Respondent with a 15 days’ deadline to remedy the situation.

9. On the same date, the Respondent replied to the Claimant’s letter, holding that the Claimant’s relationship “has been lawfully terminated before the end of its term, the Club has no further obligations arising from the contract”. Furthermore, the Respondent alleged that it “gave a straight and plain explanation of the causes that led to the termination of [the Claimant’s] employment contract”, complying “with the concerning legal requirements”.

10. Lastly, the Respondent sustained that the Claimant could not “challenge the termination notice”, as the latter “did not start a lawsuit against the Club within 30 days of the receiving of the termination note”.

11. On 30 April 2020, the Claimant lodged a claim against the Respondent in front of FIFA, claiming the following:

i. “to establish that the Contract is to be considered terminated without the just cause by the Club as of 20 November 2019, and

to order the Club to pay to the Assistant Coach, within 30 days as of the date of notification of the Honourable FIFA Players’ Status Committee, overdue payables in the amount:

ii. for the remaining wage: 521.743,00 HUF, plus the interest (5%) as stipulated in paragraph 29 of this claim;

iii. for the compensation for breach of the Contract: 20.738.500,00 HUF, plus the interest (5%) as stipulated in paragraph 30 of this claim; and

iv. to order the Club to fully reimburse the cost of these proceedings before the Players’ Status Committee.”

12. The Respondent submission to the claim was received outside the time limit granted by the FIFA Administration, therefore, in accordance to art. 9 par. 3 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber, the Respondent’s reply to the claim shall not be taken into account.

13. On 24 June 2020, the coach informed FIFA that as of the date of the termination of the employment contract he remained unemployed.

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 30 April 2020 and decided on 11 August 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 30 April 2020. In view of the foregoing, the Single Judge concluded that the March 2020 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 October 2019, the Claimant and the Respondent concluded an employment contract valid as from 1 October 2019 until 30 June 2021, pursuant to which the Respondent undertook to pay to the Claimant a monthly salary of HUF 1,091,500.

6. In continuation, the Single Judge remarked that, in his claim to FIFA, the Claimant had accused the Respondent of having terminated their contractual relationship without just cause in November 2019.

7. Moreover, the Single Judge took note that on 6 November 2019, via letter, the Respondent unilaterally terminated the contract on the basis of the Claimant’s conduct, mainly by allegedly that the Claimant “had been absent from the video analysis of the team held on 5 November 2019 at the Novotel Hotel in Székesfehérvár, on the night before the 2nd division match against BFC Siófok on 6 November 2019 and [the coach] failed to explain [his] absence” as well as due to the coach’s attitude, which had been “contradictory to the requirement of organized cooperation”.

8. The Single Judge also noted that, as such, the Claimant deemed inter alia being entitled to claim from the Respondent the payment of outstanding remuneration and compensation for breach of contract in the total amount of HUF 21,260,243, together with 5% interest p.a.

9. In addition, the Single Judge noted that, for its part, the Respondent, submitted its response to the claim outside the time limit granted by the FIFA Administration. Therefore, in accordance to art. 9 par. 3 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber, the Respondent’s reply shall not be taken into account.

10. In continuation, the Single Judge considered the documentation on file and deemed that the main issue of the present dispute is to determine whether the contract had been terminated without just cause by the Respondent on 6 November 2019 and, if so, to decide on the consequences thereof.

11. In this regard, the Single Judge referred to the termination letter of the club dated 6 November 2019, in which it stated inter alia that the reasons for the termination were the coach’s alleged attitude “contradictory to the requirement of organized cooperation” and his alleged absence “from the video analysis of the team held on 5 November 2019.”

12. In continuation, the Single Judge was eager to emphasise that only a breach or misconduct which is of a certain severity justifies the termination of a contract 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.

13. Referring to the concrete circumstances of the case, the Single Judge noted that no evidence was provided of the Respondent’s accusations against the coach or of any attempt of the club to preserve the contract before unilaterally terminating it. The coach disputed the Respondent’s accusations and the termination of the contract and the claim remained unanswered by the Respondent. Thus, the Single Judge concluded that the Respondent did not have just cause to prematurely terminate the employment contract with the Claimant, since from the documentation and argumentation on file it appears that there would have been more lenient measures to be taken in order to sanction any eventual misconduct of the coach, if any, which is at the basis of the termination of the employment contract by the Respondent.

14. In view of all the above, the Single Judge was of the firm opinion that the club did not have just cause to prematurely terminate the employment contract with the coach on 6 November 2019 and, consequently, the latter must bear the financial consequences of the early termination.

15. Having established the aforementioned, the Single Judge turned his attention to the compensation payable to the coach by the club following the termination without just cause of contract by the latter.

16. In this respect, the Single Judge held that he first had to clarify whether the pertinent employment contract contained any clause, by means of which the parties had beforehand agreed upon a compensation payable by the contractual parties in the event of breach of contract. In this regard, the Single Judge established that no such compensation clause was included in the employment contract at the basis of the matter at stake.

17. In calculating the amount of compensation payable to the coach, the Single Judge first turned his attention to the remuneration and other benefits due to the coach under the existing contract. The Single Judge pointed out that the contract signed between the Claimant and the Respondent was valid as from 1 October 2019 until 30 June 2021.

18. As result, the Single Judge understood that the contract was terminated on 6 November 2019, and that as from 6 November 2019 until 30 June 2021, the coach would have earned the total amount of HUF 21,611,700.

19. Equally, the Single Judge verified as to whether the coach had signed a new employment contract after having been dismissed by the club on 6 November 2019 by means of which he would have been enabled to reduce his loss of income. According to the constant practice, such remuneration under a new employment contract would be taken into account in the calculation of the amount of compensation for breach of contract in connection with the coach’s general obligation to mitigate his damages.

20. The Single Judge recalled that, after the termination of the contract, the coach was not able to mitigate his damages, as he remained unemployed.

21. In view of the above, the Single Judge concluded that the amount of HUF 21,260,243 is to be paid by the club to the coach as compensation for breach of contract given that the latter limited his request to HUF 21,260,243.

22. Equally, taking into account the Claimant’s request for interest, the Single Judge, in accordance with the well-established jurisprudence, decided that the club has to pay to the coach interest of 5% p.a. on the amount of HUF 21,260,243 as from the date on which the claim was lodged, i.e. 30 April 2020, until the date of effective payment.

23. 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 and are normally to be paid by the unsuccessful party.

24. In this respect, the Single Judge reiterated that the claim of the coach is partially accepted and that the club is at fault. Therefore, the Single Judge decided that the club has to bear the costs of the current proceedings in front of FIFA.

25. 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.

26. 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.

27. Consequently, the Single Judge determined that the Respondent shall pay the amount of CHF 2,000 in order to cover the costs of the present proceedings.

28. Subsequently, the Single Judge reverted to art. 17 par. 5 in combination with art. 18 of the Procedural Rules, and observed that the advance of costs paid by a party shall be duly considered in the decision regarding costs. Therefore, given that the Respondent is responsible to pay the amount of CHF 2,000, the Single Judge decided that the amount paid by the Claimant as advance of costs, i.e. CHF 2,000, shall be reimbursed to the latter by FIFA.

29. The Single Judge concluded his deliberations in the present matter by establishing that Claimant’s claim is partially accepted.

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

1. The claim of the Claimant, Vukašin Poleksić, is partially accepted.

2. The Respondent, Nyiregyhaza FC, has to pay to the Claimant, the following amount:

- HUF 21,260,243 as compensation for breach of contract, plus 5% interest p.a. as from 30 April 2020 until the date of effective payment.

3. Any further claims from 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: 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 by the Respondent to FIFA (cf. note relating to the payment of the procedural costs below).

For the Players' Status Committee:

Emilio García Silvero

Chief Legal & Compliance Officer

REF 20-00682

Page 11 of 11

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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