F.I.F.A. – Commissione per lo Status dei Calciatori (2012-2013) – controversie allenatori – ———- F.I.F.A. – Players’ Status Committee (2012-2013) – coach disputes – official version by www.fifa.com – Decision of the Players’ Status Committee passed in Zurich, Switzerland, on 25 September 2012 in the following composition: Theo Zwanziger (Germany), Chairman V. Manilal Fernando (Sri Lanka), Deputy Chairman Chuck Blazer (USA), member Geoff Thompson (England), member Tai Nicholas (New Zealand), member Said Al Masri (Syria), member Aibek Alybaev (Kyrgyzstan), member Norman Darmanin Demajo (Malta), member Aminu Maigari (Nigeria), member Victor Cisse (Senegal), member Luis H. Bedoya (Colombia), member Juan Padron Morales (Spain), member Decio De Maria (Mexico), member on the claim presented by the coach Coach P, from Country Q represented by Mr Fernando Guimarães, lawyer as “Claimant” against the club Club A, from Country B as “Respondent” regarding a contractual dispute between the parties.

F.I.F.A. - Commissione per lo Status dei Calciatori (2012-2013) – controversie allenatori – ---------- F.I.F.A. - Players' Status Committee (2012-2013) – coach disputes – official version by www.fifa.com – Decision of the Players’ Status Committee passed in Zurich, Switzerland, on 25 September 2012 in the following composition: Theo Zwanziger (Germany), Chairman V. Manilal Fernando (Sri Lanka), Deputy Chairman Chuck Blazer (USA), member Geoff Thompson (England), member Tai Nicholas (New Zealand), member Said Al Masri (Syria), member Aibek Alybaev (Kyrgyzstan), member Norman Darmanin Demajo (Malta), member Aminu Maigari (Nigeria), member Victor Cisse (Senegal), member Luis H. Bedoya (Colombia), member Juan Padron Morales (Spain), member Decio De Maria (Mexico), member on the claim presented by the coach Coach P, from Country Q represented by Mr Fernando Guimarães, lawyer as “Claimant” against the club Club A, from Country B as “Respondent” regarding a contractual dispute between the parties. I. Facts of the case 1. On 5 June 2009, the coach P (hereinafter: “the Claimant”) and the Club A from Country B(hereinafter: “the Respondent”) concluded an employment contract (hereinafter: “the contract”), valid for three years and seven months, for the period from 1 June 2009 until 31 December 2012. 2. Clause third of the contract stipulated that: “A. The first party [the Respondent] shall pay 60.0000$ (Only sixty thousand US Dollars) as yearly sign in fees at the beginning of any new years of this contract during the contract period and the first party shall pay as well 35.000$ (Only thirty five thousand US Dollars) for the period of seven months from 1/6/2012 to 31/12/2012 [...] B. The first party shall pay 20.000$ (Only twenty thousand US Dollars) as Monthly salary paid at the last day of each month”. 3. Clause fifth of the contract stipulated that: “A. if the second party [the Claimant] wishes to terminate this contract he will be responsible to repay a part of the sign fee proportional equal to the remaining period of the year over and above he will be responsible to pay the first party [the Respondent] a total of two months salaries as a compensation [...] B. If the first party wishes to terminate this contract during any time of the contract life in which case the second party will be entitled to receive total of USD 50.000/= ‘only fifty thousand US DOLLARS’ as a compensation and the second party will not be responsible to return to the first party any part of the sign on fees”. 4. On 8 July 2010, the Claimant lodged a claim with FIFA against the Respondent for breach of contract without just cause and stated that he had not received his salaries corresponding to the months of April, May and June 2010, as well as the signing-on fee corresponding to the second year of the contract, i.e. “01 June 2010 until 31 May 2011”. 5. In continuation, the Claimant stated that on 21 June 2010, he had asked the Respondent to clarify its position concerning the outstanding remuneration, as well as “an official position regarding the expiration of his working permit and residency visa“ and had allegedly not received any answer. Moreover, the Claimant claimed that, in the meantime, the Respondent had announced the hiring of another coach. Furthermore, the Claimant explained that on 28 June 2010 he had sent another letter to the Respondent, putting the latter “on notice to pay […] the total amount due”, but that such letter had again remained unanswered. Finally, the Claimant stated that on 5 July 2010, he had sent a “Final notice” to the Respondent, reminding the latter that his salaries of April and May 2010 as well as his signing-on fee for the second year of the contract had still not been paid. According to the Claimant, the Respondent had also failed to answer his final letter. 6. In light of the above, the Claimant deemed that the Respondent had decided to “indirectly and unilaterally terminate the employment contract without a just cause” and claimed the total amount of USD 865,000, plus 5% interest p.a. as from April 2010 as well as disciplinary sanctions. The cited amount is composed as follows: a) USD 60,000, as outstanding salaries corresponding to the months of April, May and June 2010 (USD 20,000 per month); b) USD 600,000, as compensation equivalent to the residual value of the contract, i.e. 30 months; c) USD 60,000, as signing-on fee corresponding to the period from 01/06/2010 until 31/05/2011; d) USD 60,000, as signing-on fee corresponding to the period from 01/06/2011 until 31/05/2012; e) USD 35,000, as signing-on fee corresponding to the period from 01/06/2012 until 31/12/2012; f) USD 50,000, as compensation in accordance with the clause fifth B of the contract. 7. On 23 August 2010, the Respondent presented its response to the Claimant’s claim. In this respect, the Respondent argued that the Claimant and Mr S, ExChairman of the club, “had reached an agreement to terminate the contract by consensual”. 8. In continuation, the Respondent argued that the Claimant had “left to his country, Country Q in month of June for the mid-season vacation (for 15 days) in spite he had his return air tickets he never came back to continue his contract with Club A”. 9. On 15 September 2010, in addition to its previous submission, the Respondent stated that it was willing to pay USD 90,000 to the Claimant, i.e. USD 40,000 as per salaries and USD 50,000 as per compensation in accordance with clause fifth B of the contract. 10. On 11 October 2010, the Claimant presented his comments to the Respondent’s response. In this respect, the Claimant denied that he had agreed to terminate his contract and argued that “There is no evidence, written agreement or proof of payment attached to the present file in order to confirm an agreement to mutually terminate the employment contract as alleged by Respondent or even a payment towards the Claimant”. 11. In spite of having been asked to do so, the Respondent did not provide its final comments to the Claimant’s last submission, although it was informed that, in absence of reply, the Players’ Status Committee would take a decision on the basis of the information and evidence at disposal. II. Considerations of the Players´ Status Committee 1. First of all, the Players´ Status Committee (hereinafter also simply referred to as: “the Committee”) analysed whether it was competent to deal with the case at hand. In this respect, the Committee confirmed that, on the basis of art. 3 par. 1 of the 2008 edition of the Rules governing the procedures of the Players’ Status Committee and the Dispute Resolution Chamber in connection with art. 23 par. 1 and 3 as well as art. 22 lit. c) of the 2010 edition of the Regulations on the Status and Transfer of Players, it was competent to deal with the matter at stake which concerns an employment-related dispute with an international dimension between a coach from Country Qand a club affiliated to the Football Association of Country B. 2. Furthermore, the Committee analysed which Procedural Rules are applicable to the matter at hand. In this respect, it referred to art. 21 par. 2 and 3 of the 2008 edition of the Rules governing the procedures of the Players’ Status Committee and the Dispute Resolution Chamber. Consequently, and since the present matter was submitted to FIFA on 8 July 2010, the Committee concluded that the current edition of the Rules governing the procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2008; hereinafter: “the Procedural Rules”) is applicable to the matter at hand. 3. Subsequently, the Committee 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, it referred, on the one hand, to art. 26 par. 1 and 2 of the 2010 edition of the Regulations on the Status and Transfer of Players, and on the other hand, to the fact that the present claim was lodged in front of FIFA on 8 July 2010. In view of the foregoing, the Committee concluded that the 2009 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. 4. Its competence and the applicable regulations having been established, and entering into the substance of the matter, the Committee started by acknowledging the above-mentioned facts as well as the arguments and the documentation submitted by the parties. 5. In doing so, the Committee took note that on 5 June 2009, the Claimant and the Respondent concluded the contract valid for three years and seven months, i.e. from 1 June 2009 until 31 December 2012. 6. Moreover, the Committee acknowledged that on 21 June 2010 the Claimant had sent a letter to the Respondent requesting the payment of two monthly salaries corresponding to the months of April and May 2010 as well as the signing-on fee corresponding to the second year of the contract in accordance with its third clause. Besides, the Committee noted that since the Respondent had not replied to the aforementioned letter, on 28 June 2010 the Claimant had sent another letter to the Respondent requesting the latter to pay “the total amount due”. 7. Furthermore, the Committee took note that as the Respondent had apparently failed to answer the aforementioned Claimant´s letters, on 5 July 2010 the Claimant had sent a “Final notice” to the Respondent. 8. The Committee remarked that, in view of the foregoing, the Claimant had lodged the present complaint against the Respondent in front of FIFA, claiming outstanding salaries, compensation for breach and other amounts based on the contract dated 5 June 2009, plus interest. 9. In addition, the Committee acknowledged that, during the investigation of the present matter, the Respondent had alleged that both parties had reached an agreement on the termination of the contract. However, the Committee underlined that the Respondent had failed to provide any documentary evidence to support this allegation and that the Claimant contested the existence of any agreement. Therefore, the Committee concluded that it had to be assumed that no such agreement had been reached. 10. In this context, the Committee was keen to emphasise the content of art. 12 par. 3 of the Procedural Rules which states that a party claiming a right on the basis of an alleged fact shall carry the burden of proof. 11. In view of the above and, in particular, taking into account that the Respondent had not provided any reason justifying its failure to pay the outstanding remuneration to the Claimant as well as had not been able to demonstrate that the agreement had been terminated amicably between the parties, the Committee held that the Respondent had therefore unilaterally terminated the contract it had concluded with the Claimant on 5 June 2009 and should therefore be requested to compensate the Claimant for such termination. 12. Having established that the contract was terminated by the Respondent, the Committee went on to analyse each of the Claimant´s demands and started by focussing its attention on the claim of USD 60,000 as outstanding salaries corresponding to the months of April, May and June 2010. 13. In this respect, the Committee pointed out that, during the investigation of the matter at stake, the Respondent had recognised owing the Claimant two monthly salaries corresponding to April and May 2010 for a total amount of USD 40,000, i.e. 2 x USD 20,000. 14. Moreover, the Committee underlined that the Respondent alleged that the Claimant had left Country B in the month of June 2010 for holidays and that such statement had not been contested by the Claimant. Consequently, the Committee held that it had to be assumed that the Claimant had not worked for the Respondent during the month of June 2010 and that, consequently, the salary of June 2010 (which, according to the contract, should have been paid at the end of the month) could not be considered as outstanding remuneration. 15. In continuation, the Committee focussed its attention on the Claimant´s request for signing-on fees (cf. clause third A of the contract) for a total amount of USD 155,000, corresponding to the period from 1 June 2010 until 31 December 2012. 16. In this regard, the Committee recalled that, based on the allegations and statements of the parties, it is uncontested that the Claimant had rendered his services to the Respondent until the end of May 2010, i.e. until the end of the first year of the contract. 17. In this context, the Committee pointed out that clause third A of the contract stipulated that the yearly signing-on fee would be paid by the Respondent to the Claimant “at the beginning of any new years of this contract” and that based on the wording of the contract, the “beginning of any new year” was the 1st of June of each relevant year. 18. Therefore, and considering that it could not be established that the Claimant had worked for the Respondent after 31 May 2010, the Committee decided that the Claimant is not entitled to receive any of the amounts requested as signing-on fees under clause third A of the contract. 19. Subsequently, the Committee focussed its attention on the Claimant´s demands for compensation for breach of the contract. In this respect, the Committee took note that the Claimant was claiming two different amounts as compensation, i.e. USD 600,000 as residual value of the contract (30 months) and USD 50,000 as compensation contractually agreed in clause fifth B of the contract. 20. In this context, and taking into account the legal principle of contractual freedom, the Committee held that, as a general rule, if an employment contract contains a specific provision establishing an amount of compensation to be paid in case of early termination, such provision should prevail over any other way to determine compensation for a unilateral early termination. 21. Therefore, the Committee focussed its attention on the content of clause fifth of the contract and concluded that this provision provided for a compensation in case either of the parties decided to terminate the contract unilaterally. Moreover, the Committee took note that clause fifth B of the contract stipulated that in case the Respondent would terminate the contract at any time during its validity, the Claimant would be entitled to receive an amount of USD 50,000 as compensation for the termination. In view of this, the Committee was keen to underline that the aforementioned amount represented the total amount of compensation agreed between the parties in the event that the Respondent decided to put an end to the contract prematurely and that consequently, no further amount of compensation for termination was due to the Claimant. 22. Therefore, the Committee concluded that the Claimant should be entitled to the amount of USD 50,000 as per clause fifth B of the contract. 23. In view of all the above-mentioned considerations, the Committee decided that the claim of the Claimant is partially accepted and that the Respondent has to pay to the Claimant the amount of USD 40,000 as outstanding salaries, plus an interest of 5% p.a. as from the day after the relevant amounts had become due, as well as the amount of USD 50,000 as compensation for the termination of the contract, plus an interest of 5% p.a. as from the date of the present decision. 24. Finally, the Committee 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 costs in the maximum amount of currency of country xy 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. 25. In respect of the above, the Committee reiterated that the Claimant’s claim is partially accepted. Therefore, the Committee concluded that the Claimant and the Respondent have to bear the costs of the current proceedings before FIFA. 26. 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. The amount in dispute to be taken into consideration in the present proceedings is of USD 865,000. Therefore, the Committee concluded that the maximum amount of costs of the proceedings corresponds to currency of country xy 25,000. 27. Considering that the case at hand did not pose any particular factual difficulty but was adjudicated by the Players’ Status Committee in corpore, the Committee determined the costs of the current proceedings to the amount of currency of country xy 15,000. 28. Consequently, and in line with the aforementioned, the Committee decided that the Claimant must pay the amount of currency of country xy 13,500 and the Respondent must pay the amount of currency of country xy 1,500 in order to cover the costs of the present proceedings. III. Decision of the Players´ Status Committee 1. The claim of the Claimant, Coach P, is partially accepted. 2. The Respondent, Club A, has to pay to the Claimant, Coach P, within 30 days as from the date of notification of the present decision, the total amount of USD 40,000 as outstanding salaries. 3. Within the same time limit, the Respondent, Club A, has to pay to the Claimant, Coach P, default interest at a rate of 5% p.a. on the following partial amounts as follows: - on USD 20,000, as from 1 May 2010 until the date of effective payment; - on USD 20,000, as from 1 June 2010 until the date of effective payment. 4. Furthermore, the Respondent, Club A, has to pay to the Claimant, Coach P, within 30 days as from the date of notification of the present decision, the amount of USD 50,000 as compensation for breach of contract, plus an interest at a rate of 5% p.a. on the said amount as from 25 September 2012 until the date of effective payment. 5. Any further claims lodged by the Claimant, Coach P, are rejected. 6. If the aforementioned sums of USD 40,000 and USD 50,000, plus interests as established above, are not paid within the aforementioned deadline, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision. 7. The final costs of the proceedings in the amount of currency of country xy 15,000 are to be paid by both parties, within 30 days as from the date of notification of the present decision, as follows: 7.1 The amount of currency of country xy 13,500 has to be paid by the Claimant, Coach P Considering that the latter already paid an advance of costs in the amount of currency of country xy 5,000 at the start of the present proceedings, the Claimant, Coach P, has to pay the remaining amount of currency of country xy 8,500. 7.2 The amount of currency of country xy 1,500 has to be paid by the Respondent, Club A. 7.3 The above-mentioned amounts of currency of country xy 8,500 and currency of country xy 1,500 have to be paid to FIFA to the following bank account with reference to case nr. 10-02214/mdo: UBS Zurich Account number 366.677.01U (FIFA Players’ Status) Clearing number 230 IBAN: CH27 0023 0230 3666 7701U SWIFT: UBSWCHZH80A 8. The Claimant, Coach P, is directed to inform the Respondent, Club A, immediately and directly of the account number to which the remittance under points 2, 3 and 4 above is to be made and to notify the Players’ Status Committee of every payment received. Note relating to the motivated decision (legal remedy): According to art. 67 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, a copy of which we enclose hereto. 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 (cf. point 4 of the directives). 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 Players´ Status Committee: Jérôme Valcke Secretary General Encl. CAS directives