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 Single Judge of the Players’ Status Committee passed in Zurich, Switzerland, on 19 March 2013, by Mr Geoff Thompson (England), Single Judge of the Players’ Status Committee, on the claim presented by the coach Coach D, from country R as “Claimant / Counter-Respondent” against the club Club P, from country G as “Respondent / Counter-Claimant” regarding an employment-related contractual dispute arisen 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 Single Judge of the Players’ Status Committee passed in Zurich, Switzerland, on 19 March 2013, by Mr Geoff Thompson (England), Single Judge of the Players’ Status Committee, on the claim presented by the coach Coach D, from country R as “Claimant / Counter-Respondent” against the club Club P, from country G as “Respondent / Counter-Claimant” regarding an employment-related contractual dispute arisen between the parties. I. Facts of the case 1. On 26 April 2009, Coach D, from country R (hereinafter referred to as: the Claimant/Counter-Respondent or simply as: the Claimant) and Club P, from country G (hereinafter referred to as: the Respondent/Counter-Claimant or simply as: the Respondent) signed an employment contract (hereinafter: the contract), according to which the Respondent engaged the Claimant as its head coach for “the next two seasons, namely for the championships 2009-2010 & 2010-2011”. 2. Article 2i) of the contract provided that “For the 1st year of collaboration, 2009-2010”, the Claimant would receive a “deposit of […] (20.000,00 euros) on 08-05-2009, […] (35.000,00 euros) up to 20-07-2009 and” an amount of EUR 100,000, payable in ten equal monthly instalments, “the first ten days of the month; starting in August 2009 and ending in May 2010”. 3. Article 5 of the contract provided that “In case of an early termination of the collaboration of the two contracting parties with the responsibility of the Club P [i.e. the Respondent] (removal of the coach [i.e. the Claimant]), it should be given the amount of […] (100.000,00 euros) from the Club P. to the coach as compensation”. Furthermore, article 6 of the contract stipulated that “In case of an early termination of the collaboration of the two contracting parties with the responsibility of the coach (resignation for whichever reason), it should be given the amount of […] (250.000,00 euros) from the coach to the Club P as compensation”. 4. On 23 September 2009, the Claimant lodged a claim with FIFA against the Respondent, alleging that the latter had unlawfully terminated his contract. In this respect, the Claimant alleged that on 27 August 2009, the Respondent had informed him orally that he “was removed from his position without giving any reason” and that he had subsequently been denied access to the training centre of the Respondent and prevented from “any contact with the members of the squad beside a short farewell”. 5. As a result, the Claimant explained to have sent a letter (together with Mr M; the Respondent’s assistant coach) to the Respondent on 28 August 2009, which stated as follows: “[we] have been prohibited the entrance into the training camp of the club as well as any contact with the squad. Nobody has informed us about the reason why we have been excluded from sporting and training activity of the club. We herewith put at disposal of Club P [i.e. the Respondent] our professional services and wish to fulfil our contractual engagements towards the club [i.e. the Respondent]. We expect to hear from you regarding the intentions of the club by return of fax”. 6. The Claimant further stated that the Respondent, in response to his letter of 28 August 2009, had “filed on 29 August 2009 an Extrajudicial Statement” which informed him that, as a result of “profound complaints made by players, trainers and the medical staff, concerning your improper, often insulting behaviour towards them” as well as the “inappropriate way in which you conducted your private life outside the team (constant late nights)”, the Respondent had decided to terminate his contract. Moreover, the Claimant alleged that on 31 August 2009, the Respondent had appointed Mr C in his position. 7. Consequently, the Claimant deemed that the Respondent had breached the contract without just cause and claimed from the latter a total compensation of EUR 110,000, as follows: - EUR 10,000 corresponding to his salary of August 2009, plus an interest of 5% on the aforementioned amount as from 10 August 2009; - EUR 100,000 as compensation for breach of contract on the basis of article 5 of the contract, plus an interest of 5% on the aforementioned amount as from 27 August 2009. 8. Finally, the Claimant requested FIFA to condemn the Respondent to pay him his “legal expenses incurred” as well as any procedural costs before the Players’ Status Committee. 9. On 12 October 2010, the Respondent presented its response to the Claimant’s claim. In this respect, it stated that “On 26 August 2009, following the unfortunate result on the first match of the season (which was held on 23 August 2009 and some incidents caused by the problematic behaviour of the head coach of the club Coach D [i.e. the Claimant]”, it had organised a meeting with the coach “during which there was some tension and some quarrels” but which had not led to the termination of the contract. 10. The Respondent further claimed that after said meeting, the Claimant, who had allegedly “considered himself offended”, had decided to leave the Respondent and, consequently, on 27 August 2009, had appeared at the training centre of the Respondent, together with his assistant coach, in order to “bid farewell to the players of the team announcing that they were leaving the club and their positions”. 11. In continuation, the Respondent stated that on 28 August 2008, after a press conference allegedly held by the Claimant and during which he had announced that he was leaving the Respondent, it had received a letter from the Claimant and his assistant “whereby they were claiming that the club allegedly had denied them access to the training camp”. 12. Furthermore, the Respondent stated that on the following day, i.e. on 29 August 2009, it had sent the “extrajudicial statement-termination letter” to the Claimant, notifying the latter that it was terminating the contract with just cause, “such just cause being the absence of the head coach [i.e. the Claimant] from his duties without any justification or notification for two days, right before a difficult away match and also the unacceptable and utterly offensive statements made by Coach D [i.e. the Claimant] against the club [i.e. the Respondent] and its owner that had broken the necessary trust between the employer and the employee and had made the continuation of the employment relationship impossible”. 13. In continuation, the Respondent rejected the allegations of the Claimant that he had been prevented from entering the training centre on 27 August 2009 and that he had been informed “orally” that his contractual relationship was terminated as well as further stated that it was the Claimant himself who had decided to leave the Respondent. 14. In this context, the Respondent argued that, “only after realizing the consequences of his action and obviously following advice of his lawyer”, had the Claimant sent his letter dated 28 August 2009 to the Respondent and claimed that the latter had denied him access to the training centre. In addition, the Respondent pointed out that the letter of 28 August 2009 sent by the Claimant did not mention that his contract had been terminated by the Respondent the previous day. 15. In view of all of the above, the Respondent deemed that the Claimant had himself committed a breach of contract and had abandoned the Respondent without justification. Consequently, the Respondent lodged a counter-claim against the Claimant and requested from the latter the total amount of EUR 266,250, as follows: - EUR 250,000 as compensation for breach of contract under article 6 of the contract; - EUR 16,250 corresponding to the difference between the salaries that the Respondent should have paid to the Claimant “until the moment the coach abandoned the club, namely 3 salaries (June, July and August 2009) and the amount that the club actually paid (55,000 euros), since the club had made advance payments to the coach”. 16. Furthermore, the Respondent requested FIFA to condemn the Claimant to pay its legal expenses as well as the costs of the proceedings. 17. On 19 October 2011, the Claimant responded to the position of the Respondent and rejected the allegations of the latter. In particular, the Claimant reiterated that the Respondent had orally informed him on 27 August 2009 of the end of his contractual relationship and that he was subsequently prevented “from any contact with the members of the squad beside a short farewell”. The Claimant also maintained that, one day later, he had written to the Respondent and put “at the disposal of the latter his professional services and expressed his intention to fulfil his contractual engagements” and that, consequently, the Respondent, by termination his employment contract on 29 August 2009 (by means of the Extrajudicial Statement), had acted in bad faith and without lawful reason. 18. As to his alleged “improper behaviour” mentioned by the Respondent in its letter dated 29 August 2009 and while rejecting such allegations, the Claimant argued that the Respondent had failed to explain why he was “never informed or officially warned about these apparent complaints during his employment in the club”. 19. On 21 January 2012, the Respondent provided its final comments in response to the claim of the Claimant and reiterated that the latter had “abandoned the club without any explanation or justification and he is therefore liable to pay compensation to Club P [i.e. the Respondent]”. It consequently requested FIFA to condemn the Claimant to pay the amount of EUR 266,250 as previously mentioned. 20. Finally, on 14 February 2012, the Claimant provided his final position and answer to the counter-claim of the Respondent. In this respect, the Claimant rejected the counter-claim of the Respondent entirely and reiterated that the contract was unlawfully terminated by the latter. 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 in hand. In this respect, he referred to art. 21 par. 2 and 3 of the current edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (2012 edition). Consequently, and since the present matter was submitted to FIFA on 23 September 2009, the Single Judge concluded that the 2008 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 present matter. 2. Furthermore, the Single Judge confirmed that, on the basis of art. 3 par. 1 of the Procedural Rules in connection with art. 23 par. 1 and 3 as well as art. 22 c) of the 2012 edition of the Regulations on the Status and Transfer of Players, he was competent to deal with the present matter since it concerned an employment-related dispute between a country R coach and a country G football club. 3. Subsequently, 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 to art. 26 par. 1 of the current edition of the Regulations on the Status and Transfer of Players (2012, 2010 and 2009 editions) and again to the fact that the claim was lodged with FIFA on 23 September 2009. In view of this, the Single Judge concluded that the 2008 edition of the FIFA Regulations on the Status and Transfer of Players (hereinafter: the Regulations) was applicable to the matter as to the substance. 4. The applicable regulations and his competence having been established and entering into the substance of the present matter, the Single Judge acknowledged the positions of the parties as well as the documents provided in their support throughout the proceedings. 5. First of all, the Single Judge noted that the parties had concluded on 26 April 2009 an employment contract which provided that the Claimant would be engaged as its head coach of the Respondent for the 2009/2010 and 2010/2011 seasons. 6. Furthermore, the Single Judge referred to the arguments of both parties and, first of all, underlined that two different versions of events had been provided in relation to the exact circumstances under which the parties’ contractual relationship had been terminated. In particular, the Single Judge noted that, on the one hand, the Claimant had argued that the contract was terminated at the end of August 2009 by the Respondent without just cause, while, on the other hand, the Respondent had argued that the Claimant had himself committed a breach of contract and had “abandoned” the team without justification. In respect to the aforementioned allegation of the Respondent, the Single Judge noted that the latter had lodged a counter-claim and had requested FIFA to condemn the Claimant to pay the total amount of EUR 266,250. 7. Having established the above, the Single Judge went on to address the question of which of the parties had terminated said contract and whether said termination had occurred with or without just cause. 8. At this point and before addressing the aforementioned question, the Single Judge was keen to underline the content of art. 12 par. 3 of the Procedural Rules according to which “any party claiming a right on the basis of an alleged fact shall carry the burden of proof”. In other words, only allegations supported by clear and conclusive evidence can be taken into consideration by the deciding body. 9. Reverting to the documentation at disposal, the Single Judge analysed, first of all, the content of the letter dated 28 August 2009 that the Claimant had sent to the Respondent and noted, in particular, that the Claimant had mentioned that he had not been informed “why we [i.e. the Claimant and his assistant coach] have been excluded from sporting and training activity of the club”. The Claimant, in the same letter, also informed the Respondent that he still wished to fulfil his contractual “engagements” and that he expected “to hear from you [i.e. the Respondent] regarding the intentions of the club by return of fax”. 10. In continuation, the Single Judge referred to the letter (i.e. the “Extrajudicial Statement”) dated 29 August 2009 sent by the Respondent to the Claimant and noted that in said letter, the former simply informed the latter that their contractual relationship was terminated as a result of the “profound complaints made by players, trainers and the medical staff, concerning your improper, often insulting behaviour towards them” as well as the “inappropriate way in which you [i.e. the Claimant] conducted your private life outside the team (constant late nights)”. In this respect, the Single Judge also took note that said “Extrajudicial Statement” did not address the content of the letter sent one day earlier by the Claimant. 11. In view of the content of the aforementioned correspondence, the Single Judge held the view that the Respondent did not support its allegation that the Claimant had effectively breached the contract and had “abandoned” the team with any evidence. It is also worthwhile to note that the Respondent had not requested the return of the Claimant in its letter of 29 August 2009 but had rather instead expressly and unilaterally terminated the contract concluded between the parties, even after having received the Claimant’s letter dated 28 August 2009 whereby the latter had expressed his wish to fulfil his contractual duties. 12. Having established that the contract was terminated by the Respondent, the Single Judge went on to address the question of whether said termination was made with just cause. In this respect, the Single Judge emphasised that the Respondent had not provided any evidence of the Claimant’s alleged “improper, often insulting behaviour” and of the alleged “inappropriate way in which” he had conducted his “private life outside the team”. In any case, the Single Judge was eager to emphasise that there was no evidence that the Respondent had previously warned the Claimant about his alleged misconduct. In this respect, the Single Judge underlined that if there are more lenient measures which can be taken in order for an employer to ensure the employer’s fulfilment of his contractual duties, such measures must be taken before terminating an employment contract. A premature termination of an employment contract can only be an ultima ratio. 13. In addition, the Single Judge noted that the Respondent had also failed to provide any evidence corroborating its allegation that the Claimant had been absent “from his duties without justification or notification for two days”. In this context, the Single Judge was keen to underline that even if the Claimant had effectively been absent “for two days”, this would, under the present circumstances, not have justified the unilateral termination of the contract by the Respondent on 29 August 2009 as the Claimant had clearly informed the Respondent that he was willing to fulfil his contractual obligations. 14. On account of the abovementioned considerations and in the absence of any valid justification which would have permitted the Respondent to terminate the contract unilaterally, the Single Judge formed the view that the dismissal of the Claimant by the Respondent on 29 August 2009 amounted to a termination without just cause. 15. In continuation, the Single Judge analysed the consequences of the breach of contract without just cause by the Respondent. In this context and first of all, the Single Judge went on to assess whether any outstanding compensation was still due by the Respondent to the Claimant. In this regard, the Single Judge underlined that the Claimant had requested from the Respondent the amount of EUR 10,000 corresponding to his salary of August 2009, together with an interest of 5% per year as from 10 August 2009. 16. Consequently, in view of the fact that the Respondent had not denied that said monthly salary was due and on the basis of article 2i) of the contract, which provided that the Claimant’s monthly salaries would be paid to him “the first ten days of the month, starting in August 2009”, the Single Judge concluded that the amount of EUR 10,000 as outstanding salary for the month of August 2009 was therefore still due to the Claimant and should thus be paid by the Respondent together with an interest of 5% per year on said amount as from 11 August 2009, i.e. one day after the amount in question had become due. 17. Turning his attention to the compensation to be paid to the Claimant by the Respondent following the termination without just cause of the contract, the Single Judge reverted to the content of article 5 and article 6 of the contract (cf. point I. 3 above) and concluded that he must apply the respective contractual clauses, according to which, in case of termination of contract by the Respondent without just cause, the Claimant would be entitled to the amount of EUR 100,000 as compensation. As a result, the Respondent should also be requested to pay to the Claimant the amount of EUR 100,000 provided for under article 5 of the contract as well as an interest of 5% per year on said amount as from the date of the present decision, i.e. 19 March 2013. 18. In view of all of the above, the Single Judge concluded that the Claimant is entitled to receive from the Respondent the amount of EUR 10,000 as outstanding salaries, plus an interest of 5% per year on the aforementioned amount from 11 August 2009 until the date of effective payment as well as the amount of EUR 100,000 as compensation for breach of contract, plus an interest of 5% per year on the aforementioned amount from 19 March 2013 until the date of effective payment. 19. Furthermore, the Single Judge held that all other claims of the Claimant are rejected. In particular, the Single Judge rejected the request of the Claimant to be awarded “legal expenses” as no procedural compensation is awarded in proceedings before the Players’ Status Committee (cf. art. 18 par. 4 of the Procedural Rules). 20. Finally, for the sake of good order and in view of the fact that it could be established that the contract was terminated by the Respondent without just cause, the Single Judge held that the counter-claim of the latter has to be fully rejected. 21. 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 currency of country H 25,000 are levied and that such costs are to be borne in consideration of the parties’ degree of success in the proceedings. 22. In respect of the above and taking into account that the claim of the Claimant has been almost fully accepted, the Single Judge concluded that the costs of the current proceedings before FIFA have to be paid by the Respondent in full. Moreover 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. On that basis, the Single Judge held that the amount to be taken into consideration in the present proceedings is above currency of country H 200,000. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to currency of country H 25,000. 23. In conclusion, and in view of the circumstances of the present matter, the Single Judge determined the costs of the current proceedings to the amount of currency of country H 20,000 and that said amount has to be paid by the Respondent 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 / Counter-Respondent, Coach D, is partially accepted. 2. The Respondent / Counter-Claimant, Club P, has to pay to the Claimant / Counter-Respondent, Coach D, within 30 days as from the date of notification of the present decision, the amount of EUR 10,000 as outstanding salary, together with an interest of 5% per year from 11 August 2009 until the date of effective payment. 3. Furthermore, the Respondent / Counter-Claimant, Club P, has to pay to the Claimant / Counter-Respondent, Coach D, within 30 days as from the date of notification of the present decision, the amount of EUR 100,000 as compensation for breach of contract, together with an interest of 5% per year from 19 March 2013 until the date of effective payment. 4. If the aforementioned amounts under points 2 and 3 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. 5. Any further claims lodged by the Claimant / Counter-Respondent, Coach D, are rejected. 6. The counterclaim of the Respondent / Counter-Claimant, Club P, is rejected. 7. The final costs of the proceedings in the amount of currency of country H 20,000 are to be paid by the Respondent / Counter-Claimant, Club P, within 30 days as from the date of notification of the present decision, as follows: 7.1 The amount of currency of country H 16,000 has to be paid to FIFA. Considering that the Respondent / Counter-Claimant already paid an amount of currency of country H 5,000 as advance of costs for its counter-claim, the latter has to pay the remaining amount of currency of country H 11,000 to the following bank account with reference to case nr.: 7.2 The amount of currency of country H 4,000 has to be paid directly to the Claimant / Counter-Respondent, Coach D. 8. The Claimant / Counter-Respondent, Coach D, is directed to inform the Respondent / Counter-Claimant, Club P, immediately and directly of the account number to which the remittance under points 2, 3 and 7.2 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 article 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 Single Judge of the Players’ Status Committee Jérôme Valcke Secretary General Encl. CAS Directives