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 thePlayers’ Status Committee passed in Zurich, Switzerland, on 18 March 2013, in the following composition: Theo Zwanziger (Germany), Chairman Chuck Blazer (USA), Deputy Chairman Geoff Thompson (England), member Tai Nicholas (New Zealand), member Saeed Al Masri (Syria), member Semetey Sultanov (Kyrgyzstan), member Norman Darmanin Demajo (Malta), member Aminu Maigari (Nigeria), member Victor Cissé (Senegal), member Luis H. Bedoya (Colombia), member Decio De María (Mexico), member on the claim presented by the club Club L, from country C as Claimant against the coach Coach K, from country G 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 thePlayers’ Status Committee passed in Zurich, Switzerland, on 18 March 2013, in the following composition: Theo Zwanziger (Germany), Chairman Chuck Blazer (USA), Deputy Chairman Geoff Thompson (England), member Tai Nicholas (New Zealand), member Saeed Al Masri (Syria), member Semetey Sultanov (Kyrgyzstan), member Norman Darmanin Demajo (Malta), member Aminu Maigari (Nigeria), member Victor Cissé (Senegal), member Luis H. Bedoya (Colombia), member Decio De María (Mexico), member on the claim presented by the club Club L, from country C as Claimant against the coach Coach K, from country G as Respondent regarding a contractual dispute between the parties I. Facts of the case 1. On 28 October 2008, Club L, from country C (hereinafter: the Claimant) and the Coach K, from country G (hereinafter: the Respondent) concluded an employment agreement (hereinafter: the agreement), valid from 28 October 2008 until 31 May 2010, and according to which the Respondent was entitled to receive from the Claimant “for the period 28/10/2008 until 31/05/2009 seven rates of equal amount of 4,000 euros”. 2. The “General Provision” section of the agreement provided that “1. Should any disputes arise between the contracting parties, the competent authority will be the Dispute Committee and/or the respective authority of the country C Football Federation to which the members must turn to”. 3. On 29 October 2008, and “additionally to employment contract dated 27/10/2008 [i.e. the agreement]”, the Claimant and the Respondent concluded an additional agreement (hereinafter: the additional agreement), by means of which the Respondent was to receive an additional payment of EUR 164,500, payable as follows: a) EUR 35,000 as “prepayment”; b) EUR 32,000 for the period from 28 October 2008 until 31 May 2009, as follows: - EUR 11,000, on 31 December 2008; - EUR 11,000, on 28 February 2009; - EUR 11,000, on 31 March 2009. c) EUR 98,000 for the period from 1 July 2009 until 31 May 2010, to be paid in ten equal instalments. 4. On 29 April 2009, the Claimant lodged a claim with FIFA against the Respondent, stating that, although the agreement concluded by the parties on 28 October 2008 was supposed to last until 31 May 2010, the Respondent had presented his resignation on 2 December 2008 and had left country C in order to join a country G club soon after. 5. In compliance with the terms of the additional agreement, the Claimant argued that it had made a down payment of EUR 35,000 to the Respondent on 31 October 2008. In this respect, the Claimant argued that given the short period of time the Respondent had remained with them, he should only have been entitled to a part of said down payment, i.e. EUR 15,833, and that therefore he should pay back the difference. Consequently, the Claimant requested from the Respondent the amount of EUR 19,167, plus interests as from 3 December 2008. 6. On 2 May 2010, the Respondent responded to the allegations of the Claimant and stated, first and foremost, that the employment relationship was not terminated due to his unilateral resignation but was “terminated with common consent (mutual termination) after agreement of Coach K [i.e. the Respondent] with the president of Club L [i.e. the Claimant] at the time Mr S” had been reached on 2 December 2008. In support of his allegations, the Respondent provided FIFA with two witness statements, the first one from Mr P who was apparently working for the Claimant at the time and the second one from Mr S, the Claimant’s president “from 14/10/08 up to 24/11/08”. 7. In continuation, the Respondent challenged FIFA’s competence to hear the present dispute, arguing that the competence to deal with this matter clearly lied with the country C Football Association. 8. On 2 March 2010, the Claimant provided further comments to FIFA. In this respect, it reiterated that no agreement had ever been reached between the parties with respect to the departure of the Respondent and further argued that the witness statements provided by the Respondent in support of his allegations “are false and untrue” as “Mr S has close friendly links with Coach K and is trying to assist him and so Mr S who had resigned from presidency [of the Claimant] prior to the 2/12/2008”. 9. As for the issue of competence, the Claimant stated that it “cannot be forbidden to raise the claim before FIFA since Mr K [i.e. the Respondent] is a coach of foreign citizenship and is not related to the country C Football Federation”, and that “he is a country G coach and Club L [i.e. the Claimant] could not wise their claim before the dispute resolution bodies of the country C Football Association”. 10. On 18 March 2010, the Respondent submitted his final comments in response to the Claimant’s previous correspondence. In this respect, he rejected the claim of the Claimant that the two witness statements were “false and untrue”. Moreover, the Respondent stated that Mr S’ resignation was on 3 December 2008 and not on 24 November 2008, as previously wrongly reported. 11. Finally, the Respondent insisted on the fact that FIFA was not competent to hear the present claim, based on what the parties had agreed in this respect in the agreement. 12. On 15 June 2011, and in response to FIFA’s request sent to the Respondent to be provided with documentary evidence in support of his allegations that the country C Football Association has an “independent arbitration tribunal guaranteeing fair proceedings”, the country C Football Association provided FIFA with a copy of the “Regulations for the Registration and Transfer of Football Players” (hereinafter: the regulations), which were approved on 7 June 2005 and entered into force on 15 June 2005. 13. Art. 22.11 par. 1 of the regulations stipulates, inter alia, that “The Dispute Resolution Committee shall have the competence to adjudicate and/or resolve any financial or other disputes which may arise: […] E. Between trainers, assistant trainers, physiotherapists, masseurs, physicians and other technical officers and clubs”. 14. Art. 22.1 of the regulations provides that “The Dispute Resolution Committee shall consist of five members and more specifically of the Chairman Vice-Chairman and of three members” and that “The Chairman, Vice-Chairman and one member of the Dispute Resolution Committee shall be elected by the Executive Committee of the Association and two members shall be elected by the country C Football Players’ Association”. 15. In accordance with art. 22.2 par. 1 “The members of the Dispute Resolution Committee must have high moral standards, an impeccable character and possess experience and skills in respect of sports and of football in particular and must be lawyers of a renowned repute and active members of the bar association”. Furthermore, art. 22.2 par. 2 of the regulations provides, inter alia, that “Members of the Executive Committee of a club […]” and “Active players, trainers, referees […], players’ agents, club agents, employees or former employees of a club affiliated to the country C Football Association” “may not be elected to the Dispute Resolution Committee”. 16. Art. 22.8 stipulates that “decisions of the Dispute Resolution Committee are taken by simple majority. In the case of an equality of votes, the Chairman or acting chairman shall have the casting vote” and that “The Chairman and the members of the Dispute Resolution Committee, who have whether directly or indirectly an interest with any party to proceedings or with an attorney appearing before the Committee, shall not take part in the procedure of consideration of the particular matter”. 17. Art. 22.10 states that “Any decision of the Dispute Resolution Committee may be appealed to the Disciplinary Authority of the country C Football Association”. 18. Finally, art. 22.11 par. 5 stipulates that “The Dispute Resolution Committee shall not have the power and may not consider cases, which are not filed within one month from the time that a dispute is raised. Cases, which have not been filed within the above-prescribed term, are time-barred”. II. Considerations of the Players’ Status Committee 1. First of all, the Players’ Status Committee (hereinafter also simply referred to as: the Committee) analysed which Procedural Rules were applicable to the matter at hand. In this respect, it referred to art. 21 par. 2 and 3 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2012) and acknowledged that the present dispute was submitted to FIFA on 29 April 2009, thus before the aforementioned rules entered into force (1 December 2012). Consequently, the Committee 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) was applicable to the matter at hand. 2. 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, the Committee referred, on the one hand, to art. 26 par. 1 and 2 of the 2012, 2010 and 2009 editions of the Regulations on the Status and Transfer of Players and, on the other hand, to the fact that the claim was lodged with FIFA on 29 April 2009. In view of the foregoing, the Players’ Status Committee concluded that the 2008 edition of the FIFA Regulations on the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the case in hand as to the substance. 3. The applicable regulations having been established, the Players’ Status Committee went on to assess whether it was competent to hear the present matter and recalled that the Respondent had argued in its submissions that FIFA was not competent to deal with the present dispute as the parties had expressly agreed in their agreement that any dispute between them should be resolved by the “Dispute Resolution Chamber” of the country C Football Association. 4. Bearing in mind the above, the Committee went on to analyse the jurisdiction clause contained in the “General Provision” section of the agreement and underlined that said clause did not specifically mention which deciding body would be competent to hear any dispute between the parties as it inconclusively provided that “the competent authority will be the Dispute Committee and/or the respective authority of the country C Football Federation”. 5. Notwithstanding the above, the Players’ Status Committee referred to the content of art. 22 c) of the Regulations which specifically provide that FIFA is competent to hear any “employment-related disputes between a club or an association and a coach of an international dimension, unless an independent arbitration tribunal guaranteeing fair proceedings exists at national level”. 6. Consequently, and while referring to FIFA’s circular no. 1010 dated 20 December 2005, which lays down the minimum procedural standards for an arbitration tribunal to be deemed independent and to guarantee fair proceedings, the Committee closely examined the “Regulations for the Registration and Transfer of Football Players” which were submitted during the course of the present investigation in support of the Respondent’s allegation that the country C Football Association had an “independent arbitration tribunal guaranteeing fair proceedings”. 7. In this respect, the Players’ Status Committee noted that art. 22.11 of said regulations provided that the “Dispute Resolution Committee shall not have the power and may not consider cases, which are not filed within one month from the time that a dispute is raised. Cases, which have not been filed within the above-prescribed term, are time-barred”. 8. In view of the unusually short period during which parties at dispute could lodge claims with the “Dispute Resolution Committee” of the country C Football Association, the members of the Committee were of the view that it could not be concluded that the relevant tribunal guaranteed “fair proceedings”. The Committee added that the duration of any periods of prescription, i.e. the period of time usually starting on the day on which the cause of action occurred and during which a related claim can be lodged with the competent tribunal, should be reasonable and fair. In this respect, the Players’ Status Committee held that a period of one month was clearly too short for a party to initiate proceedings. 9. Therefore, and having concluded that the “Dispute Resolution Committee” did not appear to guarantee fair proceedings, the Players’ Status Committee concluded that said committee should therefore not hear the present matter. As a consequence, the Players’ Status Committee went on to assess whether it was competent to hear the present dispute. In this respect, it 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 Regulations, it was competent to deal with the present matter as it concerned an employment-related dispute of an international dimension between a country C club and a country G coach. 10. The applicable regulations and its competence having been established, and entering into the substance of the present matter, the members of the Players’ Status Committee acknowledged the positions raised by the parties as well as the documents provided in their supports. 11. First of all, the Committee noted that the parties had concluded two agreements, i.e. the agreement and the additional agreement, on 28 and 29 October 2008 respectively. 12. Furthermore, and while underlining that the Claimant and Respondent agreed that the employment relationship was terminated on 2 December 2008, the Players’ Status Committee noted that both parties had blamed each other for the breach of the employment contract, the Claimant alleging that the Respondent had unilaterally and unlawfully “presented his resignation” on 2 December 2008 and had left country C to join another club in country G soon after, and the Respondent arguing that said employment relationship was “terminated with common consent (mutual termination) after agreement” with Mr S who, according to the Respondent, was the president of the Claimant at the time. 13. At this point, the Committee 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 evidence can be taken into consideration by the deciding body. 14. In this context, the Players’ Status Committee underlined that the evidence provided by the Respondent in support of his allegation that an amicable settlement was agreed between the parties consisted of third party evidence (i.e. witness statements of employees who no longer worked for the Claimant), the authenticity of which could not be verified with certainty and which, consequently, could not amount to an irrefutable proof that the parties had, at the time, agreed to terminate the agreements between them. Therefore, and in the absence of any other documentary evidence, the Committee resolved that it had to be assumed that the contractual relationship between the Claimant and the Respondent was unilaterally terminated by the latter without prior consent from the Claimant. 15. Having established the aforementioned, the members of the Committee went on to address the question of the early termination of the contract by the Respondent arisen on 2 December 2008 and its possible consequences. In this respect, the Players’ Status Committee recalled that the Claimant deemed that as the Respondent had already left the club on 2 December 2008, the latter should be requested to reimburse the difference between the amount of EUR 35,000 he had received as “prepayment” under the additional agreement and the amount that he should have in fact been entitled to. 16. Furthermore, the Committee was keen to point out that the Respondent had never denied having received the amount of EUR 35,000 under the additional agreement and that the Claimant had actually provided documentary evidence demonstrating that said payment had indeed been made. 17. In continuation, and in view of the fact that the additional agreement specified that the amount of EUR 35,000 represented a “prepayment”, the Committee came to the conclusion that said payment was paid in advance and it could therefore be assumed that part of it would have to be paid back in case the Respondent no longer provided his services as coach of the Claimant. In this respect, and although the Claimant had not specified how it had calculated the amount of EUR 19,167 it was claiming from the Respondent, the members of the Players’ Status Committee agreed that in view of the total duration of the additional agreement and remuneration it stipulated as well as taking into account that the Respondent had terminated his employment relationship one month after it had started, the amount requested by the Claimant was entirely justified. 18. In view of all of the above, the Players’ Status Committee accepted the Claimant’s claim and decided that the Respondent had to pay to the Claimant the amount of EUR 19,167, plus interest of 5% per year over said amount from 3 December 2008 (i.e. one day after the termination of the agreements by the Respondent) until the date of effective payment. 19. Finally, the Players’ Status 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 proceedings before the Players’ Status Committee, costs in the maximum amount of currency of country H 25,000 are levied. 20. Considering that the claim of the Claimant has been fully accepted, the Players’ Status Committee concluded that the Respondent has to bear the costs of the current proceedings before FIFA. 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. On that basis, the Committee held that the amount to be taken into consideration in the present proceedings is EUR 19,167. Consequently, the Players’ Status Committee concluded that the maximum amount of costs of the proceedings corresponds to currency of country H 5,000. 21. In conclusion, and in view of the circumstances of the present matter, the Players’ Status Committee determined the costs of the current proceedings to the amount of currency of country H 3,000 and consequently decided that said amount has to be paid by the Respondent in order to cover the costs of the present proceedings. III. Decision of the Players’ Status Committee 1. The claim of the Claimant, Club L, is admissible. 2. The claim of the Claimant, Club L, is accepted. 3. The Respondent, Coach K, has to pay to the Claimant, Club L, within 30 days as from the date of notification of this decision, the amount of EUR 19,167, plus an interest at a rate of 5% per year over the aforementioned amount from 3 December 2008 until the date of effective payment. 4. If the aforementioned amount, plus interest, is 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. The final costs of the proceedings in the amount of currency of country H 3,000 are to be paid by the Respondent, Coach K, within 30 days as from the date of notification of the present decision, as follows: 5.1 The amount of currency of country H 2,000 has to be paid to FIFA to the following bank account with reference to case nr.: 5.2 The amount of currency of country H 1,000 has to be paid directly to the Claimant, Club L. 6. The Claimant, Club L, is directed to inform the Respondent, Coach K, immediately and directly of the account number to which the remittance under points 2 and 5.2 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 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