DECISIONI DI GIUSTIZIA SPORTIVA • F.I.F.A. - CAMERA DI RISOLUZIONE DELLE CONTROVERSIE - CONTROVERSIE DI LAVORO

• Data decisione: 22 gennaio 2020 • Stagione sportiva: 2019/2020

F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2019-2020) – fifa.com – atto non ufficiale – Decision 22 January 2020

Decision of the Single Judge

of the Players’ Status Committee

passed in Zurich, Switzerland, on 22 January 2020,

Roy Vermeer (the Netherlands)

Single Judge of the Players’ Status Committee,

on the claim presented by the coach

Pablo Adrian Guede, Argentina

Represented by Ms Melanie Schärer

as Claimant

against the club

Al-Ahli Saudi FC, Saudi Arabia

as Respondent

regarding a contractual dispute arisen between the parties

I. Facts of the case

1. On 14 May 2018, the Argentinian coach, Mr Pablo Adrian Guede (hereinafter: the coach or the Claimant) concluded an employment contract (hereinafter: the contract) with the Saudi club, Al-Ahli Saudi FC (hereinafter: the club or the Respondent) valid as from 20 June 2018 until 19 June 2020, pursuant to which he was entitled, inter alia, to an advance of payment of USD 1,800,000 and a monthly salary of USD 200,000.

2. According to the contract, “the Assistant Head Coaches’ monthly salaries will be the sole responsibility of the [Claimant]”. Moreover, art. 4.B of the contract stipulated as follows:

“If the Club terminates this Agreement before 6 months from the commencement date of the Agreement, the Club shall pay the Head Coach the remaining amount of the Agreement. For this purpose alone the total amount of the Agreement shall be calculated as four million and eight hundred thousand US Dollars (4,800,000 USD) since the Club would have paid the Head Coach the Advance payment stated in 3(ii).

If the Club terminates this Agreement after 6 months from the commencement date of the Agreement, the Club shall pay to the Head Coach the amount of six (6) monthly salaries, i.e. the amount of USD 1,200,000 (one million two hundred thousand US dollars).”

3. Furthermore, art. 4.C of the contract established the following:

“If the Head Coach terminate this Agreement before 6 months from the commencement date of the Agreement, the Head Coach shall pay the Club the remaining amount of the Agreement. For this purpose alone the total amount of the Agreement shall be calculated as six million and six hundred thousand US Dollars (6,600,000 USD).

If the Head Coach terminates this Agreement after 6 months from the commencement date of the Agreement, the Head Coach shall pay to the Club the amount of six (6) monthly salaries, i.e. the amount of USD 1,200,000 (one million two hundred thousand US dollars).”

4. On 5 February 2019, the Respondent unilaterally terminated the contract.

5. On 7 February 2019, the Claimant addressed a correspondence to the Respondent, asking to be paid the amount of USD 1,835,714 within 10 days, to no avail.

6. On 26 February 2019, the Claimant lodged a claim against the Respondent in front of FIFA, maintaining that the latter terminated the employment contract without just cause, requesting the following amounts:

(i) USD 635,714,28 as outstanding remuneration, plus 5% interest p.a. as follows:

- Over the amount of USD 200,000 as of 1 December 2018;

- Over the amount of USD 200,000 as of 1 January 2019;

- Over the amount of USD 200,000 as of 1 February 2019;

- Over the amount of USD 35,714.28 as of 18 February 2019.

(ii) USD 3,200,000 (“alternatively the amount of USD 1,200,000”) as compensation for breach of contract, plus 5% interest p.a. as of 18 February 2019.

7. The Claimant explained that at the time the Respondent terminated the employment contract, he had not received his salaries as from November 2018.

8. Moreover, the Claimant pointed out that the compensation clause included in the employment contract provided for different amounts in case of the same occurrence, i.e. early termination of the employment contract. Consequently, the Claimant deemed that the said clause should be disregarded and he should be compensated the residual value of the contract.

9. Furthermore, the Claimant explained that he should be paid as outstanding remuneration the first 5 days of February, in which he worked.

10. In its reply, the Respondent claimed that it paid the Claimant his salaries up until January and, therefore, he is only entitled to “remaining five days of February salary amounting to USD 32,083 and compensation of termination condition equivalent of 6 months salaries”.

11. More in particular, the Respondent maintained that it paid the Claimant USD 385,000 for November and December 2018, since USD 15,000 were deducted to pay the goalkeepers’ coach. Moreover, the Respondent claimed it paid the Claimant USD 178,000 for January 2019, since (i) USD 7,500 were again deducted to pay the goalkeepers’ coach and (ii) the SAFF Disciplinary Committee had imposed a fine of USD 5,332 on the Claimant.

12. The Respondent concluded that the contractual clause on compensation is clear and should apply.

13. The Claimant confirmed having received from the Respondent the following amounts after having lodged his claim:

- USD 187,148 on 18 April 2019;

- USD 392,470 on 15 May 2019;

- USD 199,970 on 13 June 2019.

14. The Claimant asked that those amounts be deducted from his original claim and reiterated the rest of his argumentation. Furthermore, he pointed out that he never signed the document by means of which he had allegedly entitled the Respondent to deduct the salary of the goalkeepers’ coach from his. Moreover, he claimed he was never notified the SAFF Disciplinary Committee’s decision.

15. In its rejoinder, the Respondent claimed it paid the Claimant USD 593,125 more than what he was entitled to, by means of a series of bank transfers.

16. In light of the foregoing, the Respondent maintained that the Claimant was only entitled to USD 606,875, representing the “remaining amount of the penalty”.

II. Considerations of the Single Judge of the Players’ Status Committee

1. First of all, the Single Judge analysed whether he was competent to deal with the case at hand. Taking into account 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), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.

2. Subsequently, the Single Judge referred to art. 3 par. 1 and 2 of the Procedural Rules and confirmed that in accordance with art. 23 par. 1 and 4 in combination with art. 22 lit. c) of the Regulations on the Status and Transfer of Players, he shall adjudicate on an employment-related dispute between a club or an association and a coach that has an international dimension.

3. As a consequence, the Single Judge is the competent body to decide on an employment-related dispute involving an Argentinian coach and a Saudi club.

4. In continuation, the Single Judge analysed which edition of the Regulations on the Status and Transfer of Players should be 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 2018, June 2019, October 2019, January 2020 editions of the Regulations on the Status and Transfer of Players, and on the other hand, to the fact that the present claim was lodged with FIFA on 26 February 2019. In view of the foregoing, the Single Judge concluded that the June 2018 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 (cf. art. 26 par. 1 and 2 of the Regulations).

5. His competence and the applicable regulations having been established, and entering into the substance of the matter, the Single Judge started his analysis by acknowledging the facts of the case and the arguments of the parties as well as the documents contained in the file. The Single Judge, however, emphasised 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.

6. In this respect and first of all, the Single Judge acknowledged that the Claimant and the Respondent had concluded an employment contract valid as of from 20 June 2018 until 19 June 2020. Furthermore, the Single Judge took note that according to said employment contract, the Claimant was entitled, inter alia, to an advance of payment of USD 1,800,000 and a monthly salary of USD 200,000.

7. The Single Judge further observed that the Claimant lodged a claim before FIFA against the Respondent, asserting the Respondent had unilaterally terminated the employment contract without just cause on 5 February 2019.

8. In this regard, the Single Judge observed that it remained undisputed that the Respondent terminated the contract without just cause. Hence, the Single Judge decided that the Respondent must bear the financial and/or sporting consequences of the early termination.

9. Having established the above-mentioned, the Single Judge focused his attention on the consequences of such termination. Taking into consideration art. 17 par. 1 of the Regulations, the Single Judge decided that the Claimant would, in principle, be entitled to receive from the Respondent an amount of money as compensation for breach of contract.

10. Subsequently, the Single Judge focused his attention on the calculation of the amount of compensation for breach of contract in the case at stake. In doing so, he firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the amount of compensation shall be calculated, in particular and unless otherwise provided for in the contract at the basis of the dispute, with due consideration for the law of the country concerned, the specificity of sport and further objective criteria, including, in particular, the remuneration and other benefits due to the Claimant under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years.

11. In application of the relevant provision, the Single Judge held that he first had to clarify as to whether the pertinent employment contract contains a provision by means of which the parties had beforehand agreed upon an amount of compensation payable by the contractual parties in the event of breach of contract.

12. The Single Judge established that the employment contract, indeed, provided for such provision, stipulating as follows :

13. In this context, the Single Judge noted that the Claimant pointed out the said compensation clause provided for different amounts in case of the same occurrence, i.e. early termination of the employment contract and, consequently, the Claimant deemed that the said clause should be disregarded and he should be compensated the residual value of the contract.

14. Equally, the Single Judge acknowledged the Respondent’s view that the contractual clause on compensation is clear and should apply.

15. In this regard, bearing in mind that the employment contract had been terminated by the Respondent prior to its natural expiry and after 6 months from its start, the Single Judge referred to the two pertinent paragraphs of the compensation clause, which concern the eventuality that the contract is terminated after 6 months from its start. The Single Judge deemed that said paragraphs appear to be reciprocal and financially reasonable, thus, applicable.

16. Consequently, the Single Judge decided, in light of the above-quoted provision, the compensation for the breach of contract amounts to USD 1,200,000.

17. Despite the constant practice and the general obligation to mitigate damages, the Single Judge decided that mitigation is not applicable to the case at hand, since there is a specific contractual clause specifying compensation in case of termination by the club.

18. Furthermore the Single Judge observed that the coach in his claim also seeked the payment in the amount of (i) USD 635,714,28 as outstanding remuneration, plus 5% interest p.a. as of the respective due dates.

19. In this regard, the Single Judge took note of Claimant’s allegation, according to which the latter had not received his salaries as from November 2018 at the time the Respondent had terminated the employment contract. Furthermore, the Single Judge acknowledged the Claimant’s explanation that he should be paid as outstanding remuneration the first 5 days of February 2019, on which he worked.

20. Equally, the Single Judge noted the Respondent’s position that it paid the Claimant his salaries up until January and, therefore, he is only entitled to “remaining five days of February salary amounting to USD 32,083 and compensation of termination condition equivalent of 6 months salaries”.

21. Furthermore, the Single Judge took note that the Respondent allegedly paid salaries up until January 2019 as follows :

- USD 385,000 for November and December 2018, since USD 15,000 were deducted to pay the goalkeepers’ coach;

- USD 178,000 for January 2019, since (i) USD 7,500 were deducted to pay the goalkeepers’ coach and (ii) the SAFF Disciplinary Committee had imposed a fine of USD 5,332 on the Claimant.

22. Having said this, the Single Judge proceeded with an analysis of the circumstances surroundings the present matter. Bearing in mind art. 12 par. 3 of the Procedural Rules, in accordance with which any party claiming a right on the basis of an alleged fact shall carry the burden of proof, the Single Judge concluded that the Respondent’s alleged proof of payments do not constitute satisfactory evidence, also in light of the communication received from the Claimant, in which he had attached an extract from his bank account.

23. With regard to the allegedly applicable deductions made by the Respondent, the Single Judge wished to point out that the imposition of a fine, or any other available financial sanction in general, shall not be used by clubs as a means to offset outstanding financial obligations towards coaches. Consequently, the Single Judge decided to reject the Respondent’s argument in this regard.

24. In continuation, with regard to the deduction of the assistant coach’s salary from the Claimant’s financial entitlements, the Single Judge deemed that such deduction shall be disregarded as it lacks specific (i.e. quantified) contractual basis.

25. In view of the above, the Single Judge concurred that the Respondent must fulfill its obligations as per employment contract in accordance with the general legal principle of pacta sunt servanda. Consequently, the Single Judge concluded that the Respondent is liable to pay to the coach the remuneration that was outstanding at the time of the termination, i.e. USD 635,714.28.

26. Nonetheless, the Single Judge noted that Claimant, through the proceedings, acknowledged the payment of the total amount of USD 779,558 in three payments as follows: (i) USD 187,148 on 18 April 2019; (ii) USD 392,470 on 15 May 2019; (iii) USD 199,970 on 13 June 2019.

27. In light of the foregoing, the Single Judge calculated that the outstanding remuneration had been coved by the above-mentioned payments. Thus, the Single Judge decided that the Claimant is not entitled to the outstanding remuneration and the residual amount of USD 143,873.72 (i.e. USD 779,588 – USD 635,714.28) should be deducted from any compensation awarded.

28. At this point, the Single Judge proceeded with the deduction of USD 143,873.72 from the compensation of UDS 1,200,000. In this respect, the Single Judge decided that the Claimant is entitled to USD 1,056,126 as compensation.

29. Considering the Claimant’s claim for interest and also taking into account the longstanding jurisprudence, the Single Judge ruled that the Respondent must pay interest 5% p.a. on the amount of USD 1,056,126 as of the date on which the claim was lodged, i.e. 26 February 2019, until the date of effective payment.

30. The Single Judge concluded his deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected.

31. 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 and 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.

32. In this respect, the Single Judge highlighted that the claim was partially accepted and that the Respondent was the party at fault. Therefore, the Single Judge decided that the Claimant as well as the Respondent have to bear the costs of the current proceedings in front of FIFA.

33. Furthermore and according to Annexe A of the Procedural Rules, the costs of the proceedings are to be levied on the basis of the amount in dispute. Consequently and taking into account that the total amount at dispute in the present matter is higher than CHF 200,001, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000.

34. In conclusion and considering the specific circumstances of the case, the Single Judge determined the costs of the current proceedings to the amount of CHF 20,000.

35. Consequently, the Claimant has to pay the amount of CHF 5,000 and the Respondent has to pay the amount of CHF 15,000 in order to cover the costs of the present proceedings.

III. Decision of the Single Judge of the Players’ Status Committee

1. The claim of the Claimant, Pablo Adrian Guede, is partially accepted.

2. The Respondent, Al-Ahli Saudi FC, has to pay to the Claimant, within 30 days as from the date of notification of the present decision, compensation for breach of contract in the amount of USD 1,056,126, plus 5% interest p.a. as from 26 February 2019 until the date of effective payment.

3. In the event that the amount due to the Claimant in accordance with the above-mentioned numbers 2. is not paid by the Respondent within the stated time limit, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision.

4. Any further claimed lodged by the Claimant is rejected.

5. The final costs of the proceedings in the amount of CHF 20,000 are to be paid as follows:

5.1 The amount of CHF 15,000 has to be paid by the Respondent to FIFA to the following bank account with reference to case nr. 19-00542/ssp:

UBS Zurich

Account number 366.677.01U (FIFA Players’ Status)

Clearing number 230

IBAN: CH27 0023 0230 3666 7701U

SWIFT: UBSWCHZH80A

5.2 The amount of CHF 5,000 has to be paid by the Claimant. Considering that the latter already paid an advance of costs in the amount of CHF 5,000 at the start of the proceedings, the Claimant does not have to pay the costs of the proceedings.

6. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittance under point 2 above is to be made and to notify the Players’ Status Committee of every payment received.

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Note related to the publication:

The FIFA administration may publish decisions issued by the Players’ Status Committee or the DRC. Where such decisions contain confidential information, 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 Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber).

Note related to the appeal procedure:

According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS.

The full address and contact numbers of the CAS are the following:

Court of Arbitration for Sport

Avenue de Beaumont 2

1012 Lausanne

Switzerland

Tel: +41 21 613 50 00

Fax: +41 21 613 50 01

e-mail: info@tas-cas.org

www.tas-cas.org

For the Single Judge of the

Players’ Status Committee

Emilio García Silvero

Chief Legal & Compliance Officer